LUSTGARTEN v. COLVIN

Filing 20

ORDER adopting 17 Report and Recommendations. Plaintiff's Objection is overruled and the Commissioner decision is affirmed. Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 9/5/2017. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
KIMBERLY LUSTGARTEN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

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CASE NO.: 1:16-CV-84 (LJA-TQL)

ORDER
Before the Court is the Report & Recommendation (R&R), dated July 31, 2017, Doc.
17, regarding Plaintiff Kimberly Lustgarten’s appeal of the Commissioner’s denial of
Plaintiff’s application for Social Security Benefits, Doc. 10-4 at 27. The Magistrate Judge
recommended that the Commissioner’s decision be affirmed because the decision by the
Administrative Law Judge (“ALJ”) was supported by substantial evidence. Doc. 17 at 10.
The ALJ found that Plaintiff had the residual functional capacity to perform the
requirements of her past relevant work and was thus not disabled. Doc. 10 at 196-97.
Plaintiff timely filed an Objection to the R&R. Doc. 18. The Commissioner timely filed a
Response to Plaintiff’s Objection. Doc. 19. Pursuant to 28 U.S.C. § 636(B)(1), the Court has
performed a de novo review of those portions of the R&R to which Plaintiff objects. Upon
full review and consideration of the record as well as the Objection, Plaintiff’s Objection is
OVERRULED.
Upon review of the Commissioner’s decision, this Court cannot re-weigh evidence or
determine the credibility of witnesses in a social security appeal. Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005). Thus, a reviewing court “will not disturb the Commissioner’s
decision if, in light of the record as a whole, it appears to be supported by substantial
evidence,” which is “more than a scintilla and is such relevant evidence as a reasonable

person would accept as adequate to support a conclusion.” Lewis v. Callahan, 125 F.3d 1436,
1439-40 (11th Cir. 1997). Courts review de novo the legal principles upon which the
Commissioner bases her decision. Fleming v. Comm’r, Soc. Sec. Admin., 550 F. App’x 738, 739
(11th Cir. 2013).
I.

Failure to Evaluate Impairments
In the Objection, Plaintiff first argues that the Magistrate Judge erred when he

affirmed the ALJ’s determination that “[Plaintiff] has not proven the cyst and brain
microvasculopathy cause specific functional limitations.” Doc. 18 at 2-3. Plaintiff contends
that CT scans have shown that she suffers from a sinus cyst and brain microvasculopathy,
which corroborate her headache assertions. Id. at 3. Plaintiff argues that:
 Because “the ALJ said nothing at all about the objective CT findings,” the Magistrate
erred in engaging in post-hoc rationalization of the ALJ’s reasoning when the
Magistrate Judge affirmed the ALJ’s decision;
 The ALJ failed to enter “‘specific and well-articulated’ findings about the effects of all
impairments, singly and in combination, severe and non-severe”; and
 Plaintiff’s “sinus cyst and brain microvasculopathy can reasonably be expected to
cause the headaches [Plaintiff] (and her husband) describe; the ALJ did not even find
to the contrary; and the Magistrate Judge errs in omitting the second part of the
credibility test, which cannot be performed absent evaluation of all medically
determinable impairments.”
These arguments are without merit. First, because “there is no rigid requirement that the
ALJ specifically refer to every piece of evidence in his decision,” Dyer v. Barnhart, 395 F.3d
1206, 1211 (11th Cir. 2005), the ALJ did not err in failing to discuss the CT scans because,
while he did not discuss the specific cause of Plaintiff’s headaches, the ALJ did discuss the
headaches in his decision. “[T]he mere existence of [ ] impairments does not reveal the
extent to which they limit [a plaintiff’s] ability to work or undermine the ALJ’s determination
in that regard,” and the “severity of a medically ascertained disability must be measured in
terms of its effect upon ability to work.” Moore, 405 F.3d at 1213 n.6 (citation and
punctuation omitted).

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Second, the ALJ properly considered all Plaintiff’s impairments. At Step Two, the
ALJ determined that Plaintiff had severe and non-severe impairments but did not mention
headaches. Doc. 10-4 at 190, 192-96. To the extent this was in error, such error was
harmless. In Flemming v. Comm’r of the Soc. Sec. Admin., the Court found that “[e]ven if the ALJ
erred in not indicating whether [plaintiff’s] psychotic disorder was a severe impairment, the
error was harmless because the ALJ concluded that [plaintiff] had two other severe
impairments, thereby satisfying step two.” 635 F. App’x 673, 676 (11th Cir. 2015). The ALJ,
here, while not indicating whether Plaintiff’s headaches were a severe impairment, did
determine that Plaintiff had other severe impairments: “obesity, degenerative disc disease of
the lumbar and cervical spine, degenerative joint disease of the knees, and hypertension.” See
Doc. 17 at 2. At Step Three, the ALJ determined that Plaintiff “[did] 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, Subpa11P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).” Doc. 10-4 at 190 (emphasis added). This
“determination constitutes evidence that [the ALJ] considered the combined effects of
[Plaintiff’s] impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). The ALJ
also noted Plaintiff’s treatment for headaches prior to Step Four when determining
Plaintiff’s Residual Functional Capacity (RFC). Thus, it can be inferred that the ALJ properly
considered all of Plaintiff’s impairments at Step Three including Plaintiff’s headaches. Cf.
Flemming, 635 F. App’x at 676 (“There may be an implied finding that a claimant does not
meet a listing. Therefore, in the absence of an explicit determination, we may infer from the
record that the ALJ implicitly considered and found that a claimant’s disability did not meet
a listing.”) (citation and punctuation omitted).
Third, the ALJ properly applied the credibility test when considering the testimony of
Plaintiff and Dr. Dekle when evaluating Plaintiff’s impairments. In order to establish
disability through her own testimony concerning pain, Plaintiff must show: “(1) evidence of
an underlying medical condition; and (2) either [ ] objective medical evidence confirming the
severity of the alleged pain; or [ ] that the objectively determined medical condition can
reasonably be expected to give rise to the claimed symptoms.” Gray v. Comm’r of Soc. Sec., 550

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F. App’x 850, 853 (11th Cir. 2013). “In weighing the evidence, credibility determinations are
the province of the ALJ.” Id. (punctuation omitted). “If the ALJ discredits the claimant’s
subjective testimony, the ALJ must articulate explicit and adequate reasons for doing so;
failure to do so requires, as a matter of law, that the testimony be accepted as true.” Id.
(same).
At Step Four, the ALJ listed Plaintiff’s impairments, including multiple references to
headaches, finding that “[Plaintiff’s] medically determinable impairments could reasonably be
expected to cause the alleged symptoms,” but that “[Plaintiff’s] statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible.” Docs.
10-4 at 25; 10 at 195. The ALJ gave detailed findings regarding Plaintiff’s daily activities and
concluded that Plaintiff’s testimony regarding pain from her headaches was inconsistent with
her daily activities and her ability to perform sedentary work with specified restrictions. Doc.
10-4 at 26. Thus, the Magistrate Judge did not engage in post-hoc reasoning, and the ALJ did
not fail to enter specific findings about the effects of Plaintiff’s impairments.
II.

Credibility Findings
Plaintiff then argues that the Magistrate Judge and ALJ erred in finding that Plaintiff

was not credible when they disregarded Plaintiff’s testimony and the opinion of Dr. Dekle
that Plaintiff’s testimony was credible, disregarded other corroborating evidence, and
reached findings about Plaintiff’s daily activities that were contrary to the record. Id. at 4.
This objection is a restatement of Plaintiff’s earlier objection to the ALJ’s credibility
determinations. As noted above, the ALJ articulated explicit and adequate reasons for his
credibility determinations. In determining Plaintiff’s RFC, the ALJ gave detailed findings
regarding Plaintiff’s daily activities and concluded that Plaintiff’s testimony regarding pain
was inconsistent with her daily activities. Doc. 10-4 at 26. The ALJ also cited to evidence in
the record that Plaintiff had a normal range of motion and normal motor strength—contrary
to the conclusion by Dr. Dekle that Plaintiff could not perform sedentary work. Doc. 10-4 at
26. Thus, as is proper, the ALJ articulated specific reasons why the testimonies of Plaintiff
and Dr. Dekle were inconsistent with other evidence in the record.

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Similarly, Plaintiff objects that the “ALJ [did not] articulate good cause to reject [Dr.
Dekle’s] opinion.” Id. at 5-7. An ALJ must provide “good cause” for rejecting a treating
physician’s medical opinions. Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 833 (11th Cir.
2011). “Good cause exists 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.” Id. (punctuation
omitted). Plaintiff quotes Denton v. Astrue, for the proposition that: “An ‘ALJ has the
obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that
support a finding of non-disability while ignoring evidence that points to a disability
finding.’” Doc. 18 at 7; 596 F.3d 419, 425 (7th Cir. 2010). Plaintiff, however, ignores the next
sentence in that case: “But an ALJ need not mention every piece of evidence, so long [as] he
builds a logical bridge from the evidence to his conclusion.” Id.
Here, the ALJ built the requisite bridge. The ALJ noted that Dr. Dekle’s July 15, 2014
opinion consisted of a series of statements indicating Plaintiff’s limitations. Doc. 10-4 at 196.
In the R&R, the Magistrate Judge found that Dr. Dekle’s statements were mere opinion and
not substantiated by evidence in the record, including treatment notes from Dr. Dekle,
which do not indicate decreased range of motion before the hearing, and treatment notes
from other treating physicians. Doc. 17 at 7; see Doc. 10-4 at 196. Upon a review of the
record, the ALJ’s credibility findings were supported by “more than a scintilla and [rely
upon] relevant evidence [that] a reasonable person would accept as adequate to support a
conclusion.” Lewis, 125 F.3d at 1439-40. Thus, good cause existed for the ALJ to reject Dr.
Dekle’s opinion that Plaintiff was disabled and that Plaintiff’s testimony was entirely
credible.
Next, Plaintiff cites Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986), arguing that the
ALJ cannot discount Dr. Dekle’s opinion because “Dr. Dekle’s opinion is uncontradicted by
any opinion from any treating or examining doctor, and well-supported by the medical
evidence.” Doc. 18 at 1. And yet, in evaluating Plaintiff’s RFC, the ALJ did cite to evidence
in the record where, for example, Plaintiff’s daily activities and range of motion were
inconsistent with Dr. Dekle’s conclusory opinion. Doc. 10-4 at 26. Plaintiff further claims

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that Hillsman “cannot be distinguished.” However, unlike this case, in Hillsman, the ALJ: (1)
determined at Step Two that the plaintiff had no severe impairment and was thus not
disabled; (2) found that the plaintiff was not disabled because she would not follow medical
treatments—contrary to the testimony of the treating physician who prescribed the medical
treatments—without contradictory evidence from other medical professionals, and contrary
to the testimony of the plaintiff; and (3) the Court of Appeals noted that the record was
silent on whether the medical treatment that the plaintiff was purportedly not following
could control her condition such as to render the plaintiff not disabled. 804 F.2d at 1181-82.
The facts of this case do not remotely resemble those of Hillsman.
Plaintiff then argues that the ALJ erred in evaluating Dr. Dekle’s opinion because the
ALJ did not mention or rely on the six-factor test outlined in 20 C.F.R. § 404.1527 to
determine what non-controlling weight to give to Dr. Dekle’s opinion. Those factors are: (1)
the length of the treatment relationship; (2) the frequency of the examinations; (3) the nature
and extent of the treatment relationship; (3) the supportability of the medical opinion; (4) the
consistency of the opinion with the record as a whole; (5) the medical expert’s area of
specialty; and (6) other factors, including the amount of understanding of disability programs
and the familiarity of the medical source with information in claimant’s case record. 20
C.F.R. § 404.1527(c).1 “However, the ALJ is not required to explicitly address each of those
factors.” Lawton, 431 F. App’x at 833. Taking the ALJ’s decision as a whole, it is apparent
that the ALJ considered these factors. As discussed above, the ALJ articulated specific
reasons why Dr. Dekle’s testimony was inconsistent with other evidence in the record.
III.

Violation of SSR 96-2p

Plaintiff argues that “an ALJ must recontact the treating doctor when doing so ‘may
provide the requisite support for a treating source’s medical opinion that at first appeared to
be lacking or may reconcile what at first appeared to be an inconsistency.’” Doc. 18 at 7-8
(quoting Titles II & Xvi: Giving Controlling Weight to Treating Source Med. Opinions, SSR
96-2P (S.S.A. July 2, 1996), 1996 WL 374188). However, Plaintiff ignores that her quoted
passage begins with the phrase “in some instances, additional development required by a case
To the extent that the R&R cites 20 C.F.R. § 404.1527(d) for these six factors, it is harmless error as
the factors are identical in all material aspects as amended.
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… may provide the requisite support for a treating source’s medical opinion . . . .” Titles II
& Xvi: Giving Controlling Weight to Treating Source Med. Opinions (emphasis added).
Further, SSR 96-2p also states: “Ordinarily, development should not be undertaken for the
purpose of determining whether a treating source’s medical opinion should receive
controlling weight if the case record is otherwise adequately developed.” Id. Here, there is no
allegation that the record is inadequate, and the ALJ had access to Plaintiff’s full treatment
records. So, the ALJ was not required to contact the doctor to develop the record.
IV.

Appeals Council: consideration of new evidence
“The Appeals Council must consider new, material, and chronologically relevant

evidence and must review the case if ‘the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of record.’” Ingram v. Comm’r of
Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007) (quoting 20 C.F.R. § 404.970(b)); see
Limit on Future Effect of Applications and Related Changes in Appeals Council Procedures,
52 Fed. Reg. 4001-0120 (S.S.A. Feb. 9, 1987), 1987 WL 125428.2 The Social Security
Administration’s Hearings, Appeals, and Litigation Manual defines “weight of the evidence”
as “the balance or preponderance of evidence.” Reopening for Good Cause, HALLEX I-39-4 (S.S.A. Mar. 8, 2013), 1993 WL 643197.
Plaintiff argues that the “Appeals Council erred in addressing [Plaintiff’s new
evidence] only with boilerplate” language. Doc. 18 at 9. However, the Appeals Council is not
required “to provide a detailed discussion of a claimant’s new evidence when denying a
request for review.” Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014).
Further, as discussed by the Magistrate Judge, much of Plaintiff’s new evidence submitted to
the Appeals Council post-dates the date of the ALJ’s decision and thus did not warrant
review by the Appeals Council. Further, the Appeals Council discussed a December 18, 2012
exam wherein Plaintiff was found to have range of motion limitations. Docs. 18 at 9; 10-2 at
3. This one additional piece of evidence does not show that the ALJ’s decision was contrary
20 C.F.R. § 404.970 was amended effective January 17, 2017, after the 2014 hearing by the ALJ and
the March 2016 decision by the Appeals Counsel. See Ensuring Program Uniformity at the Hearing and
Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90987-01 (S.S.A. Dec. 16, 2016),
2016 WL 7242991. Accordingly, the Magistrate Judge’s conclusion that “the new evidence was not contrary
to the ALJ’s decision,” Doc. 17 at 9, is unaffected by the amendment of 20 C.F.R. § 404.970.
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to the weight of the evidence as the ALJ cited numerous other pieces of evidence showing
that Plaintiff had no such documented restrictions. Doc. 10-4 at 196.
Thus, the Court concurs with the Magistrate Judge’s recommendation that the ALJ’s
decision was supported by substantial evidence in the record. Upon full review and
consideration of the record, the Court finds that the Report and Recommendation, Doc. 17,
should be, and hereby, is ACCEPTED, ADOPTED, and made the Order of this Court for
reason of the findings made and reasons stated therein. Accordingly, Plaintiff’s Objection,
Doc. 18, is OVERRULED, and the Commissioner’s decision is hereby AFFIRMED.
SO ORDERED, this 5th day of September, 2017.

/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT

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