BARNES v. COLVIN

Filing 17

ORDER affirming the determination of the Social Security Commissioner. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6/21/2017. (efw)

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

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CASE NO. 3:16-CV-95-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, denied Plaintiff’s application for disability insurance
benefits, finding that she is not disabled within the meaning of the Social Security Act
and Regulations. Plaintiff contends that the Commissioner’s decision was in error and
seeks review under the relevant provisions of 42 U.S.C. § 405(g) and 42 U.S.C. §
1383(c). All administrative remedies have been exhausted. Both parties filed their
written consents for all proceedings to be conducted by the United States Magistrate
Judge, including the entry of a final judgment directly appealable to the Eleventh Circuit
Court of Appeals pursuant to 28 U.S.C. § 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner’s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards
were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam).

“Substantial evidence is something more than a mere scintilla, but less than a
preponderance. If the Commissioner's decision is supported by substantial evidence, this
court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). The court’s role in
reviewing claims brought under the Social Security Act is a narrow one. The court may
neither decide facts, re-weigh evidence, nor substitute its judgment for that of the
Commissioner.1 Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). It must,
however, decide if the Commissioner applied the proper standards in reaching a decision.
Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam). The court must
scrutinize the entire record to determine the reasonableness of the Commissioner’s
factual findings.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

However, even if the evidence preponderates against the Commissioner’s decision, it
must be affirmed if substantial evidence supports it. Id.
The Plaintiff bears the initial burden of proving that she is unable to perform her
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). The Plaintiff’s burden
is a heavy one and is so stringent that it has been described as bordering on the
unrealistic. Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981).2 A Plaintiff
seeking Social Security disability benefits must demonstrate that she suffers from an
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Credibility determinations are left to the Commissioner and not to the courts. Carnes v.
Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the
courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986) (per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered
prior to October 1, 1981.
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impairment that prevents her from engaging in any substantial gainful activity for a
twelve-month period. 42 U.S.C. § 423(d)(1). In addition to meeting the requirements of
these statutes, in order to be eligible for disability payments, a Plaintiff must meet the
requirements of the Commissioner’s regulations promulgated pursuant to the authority
given in the Social Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine
if a Plaintiff is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20
C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the Plaintiff is
working.

Id.

If not, the Commissioner determines whether the Plaintiff has an

impairment which prevents the performance of basic work activities. Id. Second, the
Commissioner determines the severity of the Plaintiff’s impairment or combination of
impairments. Id. Third, the Commissioner determines whether the Plaintiff’s severe
impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the
Regulations (the “Listing”).

Id. Fourth, the Commissioner determines whether the

Plaintiff’s residual functional capacity can meet the physical and mental demands of past
work. Id. Fifth and finally, the Commissioner determines whether the Plaintiff’s residual
functional capacity, age, education, and past work experience prevent the performance of
any other work. In arriving at a decision, the Commissioner must consider the combined
effects of all of the alleged impairments, without regard to whether each, if considered
separately, would be disabling. Id. The Commissioner’s failure to apply correct legal
standards to the evidence is grounds for reversal. Id.

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ISSUES
I.

Whether the ALJ gave appropriate weight to Plaintiff’s treating physician.

II.

Whether the ALJ properly evaluated Plaintiff’s credibility.
Administrative Proceedings
Plaintiff Kimberly Barnes filed her application for supplemental security income

on July 16, 2012 alleging that she became disabled to work on March 1, 2002. Her claim
was denied initially on November 21, 2012 and on reconsideration on February 28, 2013.
She filed a written request for an evidentiary hearing before an administrative law judge
(ALJ) on April 25, 2013, and the hearing was conducted on December 11, 2014. Plaintiff
appeared with her attorney and gave testimony, as did an impartial vocational expert
(VE). Tr. 17. The ALJ issued an unfavorable decision denying her claim on December
30, 2014. Tr. 14-27. She filed a request for review by the Appeals Council on February
20, 2015, but was denied on May 17, 2016. Tr. 5-11, 1-4. Having exhausted the
administrative remedies available to her under the Social Security Act, Plaintiff now
seeks judicial review of the final decision by the Commissioner to deny her application
for supplemental security income benefits.
Statement of Facts and Evidence
On the date when Plaintiff alleges she became disabled to work, she was thirtyfive years old. She completed two years of college with an associate’s degree in early
childhood education. Tr. 52, 143, 40, 64. She has past relevant work as a teacher’s
assistant. Tr. 47-48. Plaintiff filed her application alleging disability as a result of low
back pain. Tr. 164.
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In conducting the five-step sequential analysis for the evaluation of disability
claims established by the Commissioner’s regulations, the ALJ found at step two that
Plaintiff has the severe impairment of degenerative disc disease but further found at step
three that her severe impairment neither meets nor medically equals a listed impairment
found in 20 C.F.R. Part 404, Subpart P, Appendix 1. Findings Nos. 2 and 3, Tr. 20.
Between steps three and four, the ALJ formulated a residual functional capacity
assessment (RFC) which permits Plaintiff to perform light work as defined in 20 C.F.R. §
416.967(b) with added exertional restrictions. Finding No. 4, Tr. 20-22. At step four, the
ALJ determined that Plaintiff can return to her past relevant work as a teacher’s assistant
within the assessed RFC and therefore found her to be not disabled to work. Findings
Nos. 5 and 6, Tr. 22-23.
DISCUSSION
Plaintiff contends that the ALJ erred when he gave only little weight to the opinion
of her treating physician and also erred when he found her to be not entirely credible as to
her subjective complaints of pain. Pl. Br. 2, ECF No. 13. The Commissioner responds
that the ALJ properly gave only little weight to the opinion of Plaintiff’s doctor and was
correct to discount Plaintiff’s testimony and statements about her back pain. Comm’r’s
Br. 4, 9, ECF No. 16.
I.

Did the ALJ give appropriate weight to Plaintiff’s treating physician?
In 2002, while employed as a teacher’s assistant in the DeKalb County School

District, Plaintiff fell while supervising children arriving at school. She described the fall
in testimony to the ALJ as causing her to land “on both knees.” She was thirty-five years
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old at the time of the injury. Tr. 41, 40. Since that time, she contends that she has
suffered disabling pain that she describes as “8/10” in intensity and persisting “24/7.” Tr.
214. Plaintiff treated with David Stewart, M.D., a pain management specialist. She has
also been examined by Michael Hartmann, M.D., a neurologist. Dr. Hartmann ordered
an MRI in 2004 which showed “minimal degenerative disk changes and no evidence of
any nerve root compression.” Ex. 5F, Tr. 365. In his December 13, 2004 clinical
examination of Plaintiff, he found her “in no acute distress” could find “no focal motor,
sensory or reflex abnormality.” He concluded that “certainly surgery is not indicated in
any form or fashion.” Tr. 367-68. She did not see Dr. Hartmann again until March 3,
2008, when he again concluded that objective testing and diagnostic procedures
continued to show “no evidence of true disk herniation at any level.” Id.
Although Dr. Hartmann discussed possible surgical options, there is no evidence
in the record of any further consultations or treatment by the neurologist.

Instead,

Plaintiff has continued to see Dr. Stewart, who has treated her with medications such as
Valium, Percocet, Ambien, Clonidine, and OxyContin, among others, as well as with
trigger point injections and radiofrequency lesioning. Tr. 237-39, 329, 338- 39. Dr.
Stewart has also “advocate[ed] continual daily physical therapy at home with exercise to
maintain and improve tone and strength.” Tr. 328. He has consistently characterized
physical examinations as showing only “tenderness to palpitation” and a mild antalgic
gait. Ex. 6F, Tr. 21.
As pointed out by the ALJ in his written decision, these clinical findings are
consistent with objective medical testing by MRI done in August 2013 showing small
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disc protrusion with no foraminal or central canal stenosis. Ex. 6F at 36, Tr. 21. A
consultative medical evaluation in November 2012 by Palghat Mohan, M.D., showed full
5/5 strength in all extremities and normal coordination, gait, and range of motion
throughout the body. Ex. 3F, Tr. 21, 22.
In evaluating the medical opinion evidence in the record, the ALJ gave “little
weight” to an October 10, 2014 report by Dr. Stewart entitled “Medical Opinion Re;
Ability To Do Work Related Activities (Physical).” In the report, Dr. Stewart said
Plaintiff could lift less than ten pounds, stand less than two hours, and sit less than two
hours daily. He also said that she would need to lie down twice in an eight hour work
day and would miss work more than three times a month. Ex. 6F, 369-71. However, Dr.
Stewart made no other indications like these at any other point in the ten-year treating
relationship. As late as August 8, 2012, he continued to repeat nothing more than
“tenderness to palpitation” and an unchanged diagnosis of degenerative disc disease with
myofascial pain. Tr. 231.
In determining Plaintiff’s severe impairments at step two, the ALJ found
degenerative disc disease as Plaintiff’s only severe impairment, following the general
diagnosis made by Dr. Stewart. Finding No. 2, Tr. 20. However, the ALJ set forth clear
and sufficient reasons for his conclusion that only little weight should be given to this
opinion in so far as it described limitations that are extreme in light of the benign testing
results. First, it is contrary to the weight of the objective medical evidence from two
examining physicians—one of whom was a treating specialist in neurology—who could
find little wrong with Plaintiff after MRI results were obtained and clinical examinations
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conducted. Tr. 21-22. Where there are specific contradictions between the opinion of a
treating physician and other medical evidence of record, the ALJ may properly give the
treating physician’s opinion less than controlling weight. Phillips, 357 F.3d at 1241.
Second, Dr. Stewart’s October 10, 2014 opinion was largely conclusory, not supported by
any of his other clinical notations over a decade of care, and inconsistent with MRI
results. It was not error to give it only little weight. Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155 (11th Cir. 2004). Plaintiff’s first asserted error lacks merit.
II.

Did the ALJ properly evaluate Plaintiff’s credibility?
Plaintiff also contends that the ALJ erroneously discounted her credibility in

weighing her testimony and statements about her pain.

The ALJ found that her

allegations were not supported by her treatment history and that the treatment she chose
to pursue was, according to her physician, sufficient to keep her stable and functional.
Tr. 22. Other than the October 10, 2014 form on which Dr. Stewart indicated that
Plaintiff had extreme restrictions due to pain, the record well supports the ALJ’s
conclusion. The October 10, 2014 form report was properly discounted by the ALJ.
The record shows objective evidence of only a single small disc protrusion in the
lumbar spine with no evidence of central or foraminal stenosis and no nerve root
compression. Ex. 6F at 36, Tr. 21. Examinations have consistently shown that Plaintiff
has no neurological deficits and normal strength and range of motion. Ex. 3F, Tr. 35061. Plaintiff, however, alleges excruciating and crippling pain at eight on a scale of ten
with constant and unremitting persistence. The medical record simply does not support
her complaints to the extreme degree she alleges. When the extent of pain reported is in
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excess of what the medical record indicates based on objective evidence such as MRI
testing, the ALJ may properly discount the subjective pain complaints. Costigan v.
Comm’r of Soc. Sec., 603 F. App’x 783, 787 (11th Cir. 2015).

Plaintiff’s second

assertion of error has no merit.
CONCLUSION
For the reasons stated above, the determination of the Social Security
Commissioner is affirmed.
SO ORDERED, this 21st day of June, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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