Allen v. Berryhill
Filing
15
ORDER AND OPINION AFFIRMING the final decision of the Commissioner directing the Clerk to enter final judgment in the Commissioners favor. Signed by Magistrate Judge Alan J. Baverman on 9/10/18. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARVA A.,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER, SOCIAL
:
SECURITY ADMINISTRATION, :
:
Defendant.
:
CIVIL ACTION FILE NO.
1:17-cv-02385-AJB
O R D E R A N D O P I N I O N1
Plaintiff Marva A. (“Plaintiff”) brought this action pursuant to sections 205(g)
and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), to obtain
judicial review of the final decision of the Commissioner of the Social Security
Administration (“the Commissioner”) denying her application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”) under the Social
1
The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. (See Dkt. Entries dated 11/16/2017 & 11/17/2017). Therefore, this Order
constitutes a final Order of the Court.
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Security Act.2 For the reasons below, the undersigned AFFIRMS the final decision of
the Commissioner.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on July 16, 2012, alleging disability
commencing on August 1, 2011. [Record (hereinafter “R”) 369-78]. Plaintiff’s
applications were denied initially and on reconsideration. [See R185-286]. Plaintiff
then requested a hearing before an Administrative Law Judge (“ALJ”). [R290-91]. An
evidentiary hearing was held on June 17, 2014. [R163-84]. During the hearing, the
ALJ announced that he wanted to send Plaintiff for consultative examinations. [R183].
After the additional medical evidence was entered into the record, the ALJ held a
2
Title II of the Social Security Act provides for DIB. 42 U.S.C. § 401
et seq. Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq., provides for SSI
benefits for the disabled. SSI claims are not tied to the attainment of a particular period
of insurance eligibility. Baxter v. Schweiker, 538 F. Supp. 343, 350 (N.D. Ga. 1982).
Otherwise, the relevant law and regulations governing the determination of disability
under a claim for DIB are nearly identical to those governing the determination under
a claim for SSI. Wind v. Barnhart, 133 Fed. Appx. 684, 690 n.4 (11th Cir. June 2, 2005)
(citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4 (11th Cir. 1986)). In general, the
legal standards to be applied are also the same regardless of whether a claimant seeks
DIB, to establish a “period of disability,” or to recover SSI, although different statutes
and regulations apply to each type of claim. See 42 U.S.C. § 1383(c)(3) (establishing
that the judicial provisions of 42 U.S.C. § 405(g) are fully applicable to claims for SSI).
Therefore, to the extent that the Court cites to SSI cases, statutes, or regulations, they
are equally applicable to Plaintiff’s DIB claims, and vice versa.
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second evidentiary hearing on June 30, 2015. [R136-62]. On July 6, 2015, the ALJ
ordered a Cooperative Disability Investigation (“CDI”), and the resulting report, dated
November 5, 2015, was later entered into the record by the ALJ. [R1186-1205].
The ALJ issued a decision on April 22, 2016, denying Plaintiff’s application on the
ground that she had not been under a “disability” within the context of the Social
Security Act from the alleged onset date through the date of the decision. [R98-126].
Plaintiff sought review by the Appeals Council, and the Appeals Council denied
Plaintiff’s request for review on May 4, 2017, making the ALJ’s decision the final
decision of the Commissioner. [R1-7].
Plaintiff then filed this action on June 26, 2017, seeking review of the
Commissioner’s decision.
[Doc. 1].
The answer and transcript were filed on
October 18, 2017. [See Docs. 6, 7]. On November 20, 2017, Plaintiff filed a brief in
support of her petition for review of the Commissioner’s decision, [Doc. 9]; on
December 20, 2017, the Commissioner filed a response brief in support of the decision,
[Doc. 10]; on January 2, 2018, Plaintiff filed a reply brief in support of her petition for
review, [Doc. 11]; and on January 25, 2018, the Commissioner filed a response to
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Plaintiff’s reply brief, [Doc. 13-1].3 The matter is now before the Court upon the
administrative record, the parties’ pleadings, and the parties’ briefs,4 and it is
accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.
STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if he is
unable to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months.”
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The impairment or
impairments must result from anatomical, psychological, or physiological abnormalities
which are demonstrable by medically accepted clinical or laboratory diagnostic
techniques and must be of such severity that the claimant is not only unable to do
previous work but cannot, considering age, education, and work experience, engage in
any other kind of substantial gainful work that exists in the national economy.
42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
3
When Plaintiff did not object to the Commissioner’s motion to file the
response to her reply brief, (see Dkt.), the Court granted the motion as unopposed,
[Doc. 14].
4
Neither party requested oral argument. (See Dkt.).
4
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The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
the existence of a “disability” and therefore entitlement to disability benefits.
See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step
sequential process to determine whether the claimant has met the burden of proving
disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
The claimant must prove at step one that he is not undertaking substantial gainful
activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the
claimant must prove that he is suffering from a severe impairment or combination of
impairments that significantly limits his ability to perform basic work-related activities.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, if the impairment
meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of
Impairments), the claimant will be considered disabled without consideration of age,
education, and work experience.
See 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a
listed impairment, he must prove that his impairment prevents performance of past
relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five,
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the regulations direct the Commissioner to consider the claimant’s residual functional
capacity, age, education, and past work experience to determine whether the
claimant can perform other work besides past relevant work.
See 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner must produce evidence that
there is other work available in the national economy that the claimant has the capacity
to perform. Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant
must prove an inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled,
the
sequential
evaluation
ceases
and
further
inquiry
ends.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step
five, the overall burden rests on the claimant to prove that he is unable to engage in any
substantial gainful activity that exists in the national economy.
Doughty,
245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),
superseded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991).
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III.
SCOPE OF JUDICIAL REVIEW
A limited scope of judicial review applies to a denial of Social Security benefits
by the Commissioner. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296
(N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court
may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If
substantial evidence supports the Commissioner’s factual findings and the
Commissioner applies the proper legal standards, the Commissioner’s findings are
conclusive. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam);
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
“Substantial evidence” means “more than a scintilla, but less than a
preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as
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a reasonable mind might accept as adequate to support a conclusion, and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth,
703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary
of the ALJ’s findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ’s decision.
Barron v. Sullivan,
924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ’s application of legal
principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker,
826 F.2d at 999.
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IV.
STATEMENT OF FACTS5
A.
Background
Plaintiff was thirty-eight years old at her alleged disability onset and forty-three
years old when the ALJ decision issued. [R119, 369]. She can read and write, has a
general equivalency diploma, and previously worked as a certified nursing assistant,
cook, day care provider, and home health aide. [R410-12]. Plaintiff alleges that she
is unable to work due to depression, anxiety attacks, two strokes with memory loss, a
heart murmur caused by high blood pressure, migraines with partial paralysis, and a
hernia. [R411, 445-46, 451-52].
B.
Lay Testimony
In her hearings before the ALJ, Plaintiff reported that because of her anxiety and
depression, she did not come out of her room, leave home often, or drive; she got
confused and afraid about directions; she lashed out frequently; she did not go around
people; and she did not like to talk to people. [R152, 154, 176, 182].
5
In general, the records referenced in this section are limited to those
deemed by the parties to be relevant to this appeal. [See Docs. 9-11; Doc. 13-1;
see also Doc. 8 (Sched. Ord.) at 3 (“The issues before the Court are limited to the issues
properly raised in the briefs.”)].
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C.
Medical Records
On July 23, 2007, Plaintiff underwent a psychological consultative examination
with David B. Rush, Ph.D. [R1042-45]. On examination, Dr. Rush observed that
Plaintiff’s memory appeared intact, she demonstrated ability to solve simple
calculations, her motor activity was within normal limits, her insight and judgment
were fair, she exhibited no delusions or hallucinations during the evaluation, she
appeared focused and alert, her attention and concentration were good, she worked
consistently throughout the testing process and seemed to put forth good effort, and
rapport was easily established, and Dr. Rush stated that he believed the testing results
were a valid reflection of Plaintiff’s current level of functioning. [R1044]. He
determined that Plaintiff had a full-scale IQ of 77, and he diagnosed major depressive
disorder, single episode, mild; panic disorder without agoraphobia; borderline
intellectual functioning; and migraine headaches. [R1044-45]. He also opined that
Plaintiff could understand and remember short, simple instructions, could perform
routine tasks in environments of minimal stress, appeared capable of performing tasks
independently, and could handle supervision and getting along with others, but that she
would benefit from performing tasks out of the vicinity of others. [R1045]. Dr. Rush
further opined that due to fatigue, Plaintiff might exhibit difficulty managing a routine
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schedule and demonstrating reliability. [R1045]. He also recommended that Plaintiff
continue medication to manage her emotional symptoms and procure counseling to
assist her with learning to cope with anxiety and depression. [R1045]. He also stated
that her prognosis was favorable, contingent on her ability and willingness to comply
with a prescribed course of treatment. [R1045].
Plaintiff began receiving psychiatric treatment from Aly Ahmed, M.D., on
August 7, 2012. [R826]. She reported that she was depressed, anxious, and sad, and
that she had sleep disturbance, excessive worries, and loss of energy and interest.
[R826]. Dr. Ahmed diagnosed major depression and prescribed Celexa,6 Xanax,7 and
trazodone.8 [R826].
Plaintiff returned to Dr. Ahmed on August 21, 2012. [R825]. Plaintiff reported
that she could not sleep at all without medication, that she tolerated the medication
6
Celexa (citalopram) is a selective serotonin reuptake inhibitor (“SSRI”)
used to treat depression.
MedlinePlus, Citalopram,
https://medlineplus.gov/druginfo/meds/a699001.html (last visited 9/10/18).
7
Xanax (alprazolam) is a benzodiazepine typically used to treat anxiety
disorders and panic disorder.
Medline Plus, Alprazolam,
https://medlineplus.gov/druginfo/meds/a684001.html (last visited 9/10/18).
8
Trazodone is a serotonin modulator typically used to treat depression.
MedlinePlus, Trazodone, https://medlineplus.gov/druginfo/meds/a681038.html (last
visited 9/10/18).
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well, and that she had no side effects. [R825]. Dr. Ahmed noted that she had a sad
mood with congruent and anxious affect; was alert and oriented; had clear and coherent
speech, an organized thought process, and good concentration; wore appropriate
clothing; and had an energy level within normal limits. [R825]. Dr. Ahmed increased
Plaintiff’s medication and referred her to a therapist. [R825].
Plaintiff returned to Dr. Ahmed on September 4, 2012. [R824]. Dr. Ahmed
noted that she was alert, oriented, and wore appropriate clothing; that she had a
decreased energy level; and that her appetite and sleep were poor due to depression.
[R824]. Dr. Ahmed diagnosed major depressive disorder; noted that Plaintiff needed
help working through cognitive distortion (all or none, magnification, and
catastrophizing); and increased her trazodone and Celexa. [R824].
Plaintiff returned to Dr. Ahmed on October 2, 2012. [R823]. She indicated that
she was tolerating medication well, was not experiencing any side effects, and was
experiencing limited improvement with the increase in her medication. [R823].
Dr. Ahmed noted that she had a sad mood with a sad, tearful, and anxious affect; was
alert and oriented; had clear and coherent speech, an organized thought process, and
good concentration; wore appropriate clothing; and had an energy level within normal
limits. [R823]. Dr. Ahmed noted that Plaintiff needed help working through cognitive
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distortion (all or none), continued her medication, and referred her to a therapist.
[R823].
On October 8, 2012, Plaintiff saw her primary care physician for neck and arm
pain. [R673]. She reported that her depression and anxiety were better with psychiatric
treatment. [R673]. On examination, Plaintiff was noted to be fully oriented, with intact
memory and normal mood, affect, judgment, and insight. [R675].
Plaintiff
underwent
a
psychological
consultative
examination
with
Melanie M. Echols, Ph.D., on October 22, 2012. [R1046-51]. Dr. Echols noted
Plaintiff’s reported history of strokes and childhood abuse. [R1047-48]. She diagnosed
anxiety disorder; physical abuse of an adult, by history; and rule-out cannabis abuse.
[R1050-51]. She found that Plaintiff had an intact memory and that she was capable
of simple, routine tasks but would have problems coping with significant amounts of
stress. [R1050-51]. She stated that Plaintiff’s motivation throughout the evaluation
was sufficient, the information obtained was consistent across interviews and with
Plaintiff’s presentation, and she was therefore of the opinion that the results of the
evaluation were valid. [R1051].
Plaintiff returned to Dr. Ahmed on November 20, 2012. [R821]. Plaintiff
reported that she was tolerating medication well, was not experiencing any side effects,
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and was experiencing limited improvement with medication. [R821]. She also
indicated that she was experiencing an increase in stressors: she had received an
eviction notice, and her son was in legal trouble. [R821]. Dr. Ahmed noted that she
had a sad mood with a sad, emotional, and anxious affect; was alert and oriented; had
clear and coherent speech, an organized thought process, and good concentration; wore
appropriate clothing; and had an energy level within normal limits.
[R821].
Dr. Ahmed also remarked that Plaintiff remained depressed and anxious, that she had
attended only one counseling session, and that she needed help working through
cognitive distortion (all or none). [R821]. He prescribed Tegretol,9 continued Celexa
and Xanax, and increased trazodone. [R821].
On March 6, 2013, state agency reviewing physician Robbie Ronin, Psy.D.,
completed a Psychiatric Review Technique (“PRT”) and a mental RFC assessment.
[R242-48]. Dr. Ronin opined that Plaintiff had severe anxiety disorders, organic mental
disorders, and substance addiction disorders; that she had moderate restriction in
activities of daily living, moderate difficulties in maintaining social functioning, and
9
Tegretol (carbamazepine) is an anticonvulsant medication commonly used
to control seizures, treat nerve pain, and treat episodes of mania or mixed episodes in
patients with bipolar I disorder. It is also sometimes used to treat depression and
post-traumatic stress disorder.
MedlinePlus, Carbamazepine,
https://medlineplus.gov/druginfo/meds/a682237.html (last visited 9/10/18).
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moderate difficulties in maintaining concentration, persistence, or pace; and that she
had no repeated extended episodes of decompensation. [R242]. Dr. Ronin further
opined that Plaintiff had a moderate, but not substantial, limitation in her ability to
understand, remember, and carry out detailed instructions; could perform simple tasks
and focus for up to two hours at a time; had adequate concentration for basic activities;
had a moderate, but not substantial, limitation in her ability to sustain concentration for
extended periods; would be able to maintain basic social interactions; would have some
problems responding appropriately to criticism from supervisors and relating to
coworkers, but would be able to handle it well enough to function on a job; and would
have occasional limitation in her ability to interact with the general public, although the
limitation was not substantial. [R245-48].
Optometrist records from an examination taking place on March 19, 2013, reflect
diagnoses of dry-eye syndrome, myopia, astigmatism, and suspected hypertension.
[R1052-53]. Plaintiff was prescribed artificial tears, as needed. [R1053].
Plaintiff returned to care with Dr. Ahmed on April 9, 2013. [R819]. She
reported that she was not doing very well and had been out of medication for months.
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[R819]. She was observed to have a dysphoric10 mood, slow speech, and a constricted
affect, but intact memory, good eye contact, and fair concentration, insight, judgment,
and cognition. [R820]. Dr. Ahmed resumed Plaintiff’s prescriptions for Tegretol,
Celexa, trazodone, and Xanax. [R820].
Plaintiff returned to Dr. Ahmed on June 18, 2013. [R817]. She reported that her
son’s fiancée had been killed in a car accident and that her son and his three-year-old
child were living with her. [R817]. Dr. Ahmed diagnosed major depressive disorder,
severe, recurrent, and anxiety, and he increased Plaintiff’s Xanax and Celexa.
[R817-18].
Plaintiff next returned to care with Dr. Ahmed on January 10, 2014. [R815]. It
was noted that Plaintiff had been off medication but that her primary care physician had
given her prescriptions for Prozac,11 Xanax, and trazodone on December 19. [R815].
Dr. Ahmed noted that Plaintiff’s mood was anxious and depressed, but her speech was
regular, and her concentration, memory, insight, judgment, and cognition remained fair.
10
Dysphoria refers to a mood of general dissatisfaction, restlessness,
depression, and anxiety, or a feeling of unpleasantness or discomfort. PDR Med.
Dictionary 534 (1st ed. 1995).
11
Prozac (fluoxetine) is an SSRI used to treat depression,
obsessive-compulsive disorder, some eating disorders, and panic attacks. MedlinePlus,
Fluoxetine, https://medlineplus.gov/druginfo/meds/a689006.html (last visited 9/10/18).
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[R816]. Dr. Ahmed decreased Plaintiff’s Xanax, continued her Prozac, increased her
trazodone, and referred her for therapy. [R816].
At a gynecological appointment taking place on January 27, 2014, Plaintiff
denied depression, anxiety, or difficulty concentrating, and her gynecologist noted
appropriate affect, normal mood and speech, logical thought, and intact reasoning.
[R897-99].
At a primary care visit taking place on May 1, 2014, Plaintiff was seen for follow
up of complaints of chest pain. [R989]. She was also noted to complain of having
uncontrolled hypertension, of having been out of anxiety medication for one month,
and of having menopausal symptoms. [R989]. She had no psychiatric complaints and
was observed to be fully oriented, have intact memory, judgment, and insight, and to
have normal mood and affect. [R989, 991].
Plaintiff returned to Dr. Ahmed on May 29, 2014. [R1026]. He observed that
Plaintiff’s thought process was circumstantial, her thought content was paranoid, her
affect was hyperanimated, her concentration, sleep, and appetite were poor, and her
memory, insight, judgment, family relations, eye contact, hygiene, and cognition were
fair; diagnosed anxiety, depression, and mood disorder; and restarted medication.
[R1027].
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Plaintiff next saw Dr. Ahmed on July 8, 2014. [R1024]. Plaintiff complained
of shoulder and chest pain as well as disturbed sleep and appetite, loss of interest,
hopelessness, helplessness, and distractibility. [R1024]. Dr. Ahmed indicated that
Plaintiff had dysphoric mood, withdrawn behavior, circumstantial thought process, fair
to poor social interaction, constricted affect, and paranoid thought content, and was
distracted, but that she also had fair memory, eye contact, hygiene, insight, judgment,
and cognition. [R1025]. Dr. Ahmed increased Plaintiff’s Prozac; continued her Xanax
and tramadol; and referred her for supportive therapy and anger management. [R1025].
Plaintiff underwent a psychological consultative examination with Ralph
Allsopp, Ph.D., on July 15, 2014. [R978-85]. Dr. Allsopp indicated that he had
received a copy of the 2012 evaluation by Dr. Echols and that Plaintiff had described
to Dr. Echols physical and mental health problems similar to those she reported to him,
although there were mild inconsistencies in Plaintiff’s accounts of dates and details of
events, and her report to Dr. Allsopp that she had not used cannabis conflicted with her
admission to Dr. Echols that she had used it four times. [R981]. He also noted that
Plaintiff reported that she did not currently have any friends and that, while she is able
to get along with others superficially and for short periods of time, she had a history of
problems working with others due to mood swings. [R983].
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Dr. Allsopp indicated that Plaintiff was cooperative and alert during the
evaluation, she made eye contact, and rapport was easily established. [R983]. He also
stated that because the information she reported was generally consistent across the
collateral interview, collateral documentation, and behavioral observations, and the
inconsistencies were minimal and did not appear to be attempts at being deceptive or
unreliable, he found her to be a reliable informant. [R985].
Dr. Allsopp provisionally diagnosed major depressive disorder, recurrent,
moderate, and cognitive disorder. [R985]. He opined that Plaintiff was oriented, with
goal-directed, logical, and coherent thoughts and fair abstract reasoning; had no
problems with basic judgment or decision-making; was able to concentrate on simple
tasks; and could understand basic information and instructions. [R984-85]. He also
opined that her sleep problems had the potential to interfere with her ability to follow
a work schedule and that her limited frustration tolerance might cause her to have
difficulty getting along with others in stressful situations. [R985]. In a standard Social
Security Medical Source Statement, Dr. Allsopp opined that Plaintiff’s limitations
included a “marked” limitation in the ability to interact appropriately with supervisors
and coworkers and in the ability to respond appropriately to usual work situations and
changes in a routine setting. [R979].
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Plaintiff underwent a physical consultative examination with Alicia Cain, M.D.,
on July 28, 2014. [R993-1009]. Dr. Cain observed that Plaintiff “was somewhat of a
poor historian.” [R998]. She also noted that Plaintiff was wearing a neck brace and
had her right arm in a sling, that Plaintiff reported having had a slip-and-fall injury in
2010 involving an injured right rotator cuff, and that Plaintiff reported that she had
worn the neck brace since she was diagnosed with a hemivertebra12 at C4 in 2010 but
had not had physical therapy or musculoskeletal surgery. [R998]. On examination,
Plaintiff’s blood pressure was markedly elevated at 158/107; she had a slow, cautious
gait; she was unable to pick up small objects from the table with her right hand; and her
grip strength was reduced to 3/5 on the right. [R996, 999].
Dr. Cain diagnosed hypertension with a history of a heart attack (MI) and a
history of stroke (CVA); asthma and migraines by history; and chronic musculoskeletal
pain. [R999]. Dr. Cain also opined that Plaintiff could only lift up to ten pounds
occasionally; could sit, stand, or walk for a total of three hours each during an
eight-hour day; would never be able to finger, feel, push, or pull with the right hand;
and could only occasionally finger, feel, push, or pull with the left hand. [R1000-02].
12
A hemivertebra is a congenital defect of the spine in which one side of a
vertebra fails to develop completely. PDR Med. Dictionary 776 (1st ed. 1995).
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Plaintiff underwent a neurological consultative examination with Raghuram
Kolanu, M.D., on September 3, 2014. [R1010-22]. It was noted that Plaintiff’s blood
pressure was markedly elevated at 180/120.
[R1021-22].
In the assessment,
Dr. Kolanu repeatedly indicated that Plaintiff had weakness in her right arm and
difficulty using her right arm. [R1012-14]. In the neurological questionnaire, however,
Dr. Kolanu stated that Plaintiff had 4+/5 strength in the right hand and right upper
extremity but was not able to use the right hand to write. [R1017-18]. He also noted
that there was pain on any movement of the right arm and upon any attempt to move
the neck; that it was difficult to assess Plaintiff’s deficits due to the pain; and that the
cause of the pain was not clear. [R1020-22]. He also stated that Plaintiff might have
accurately reported that in the past she had suffered a stroke. [R1022]. Dr. Kolanu
additionally opined that Plaintiff was limited to only occasionally lifting and carrying
up to ten pounds; could sit for eight hours; could stand and walk for a total of two
hours; and could only occasionally use her right hand for fingering, feeling, pushing,
or pulling. [R1011-12].
On September 4, 2014, Plaintiff presented to the Piedmont Healthcare emergency
department with complaints of right-arm and neck pain that she stated was chronic,
caused by a nerve injury, and made worse during a visit to her neurologist the previous
21
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day. [R1095-96]. She also reported a history of anxiety, depression, and posttraumatic stress disorder. [R1097]. Upon examination, Plaintiff exhibited tenderness
in the right upper arm, a cranial nerve deficit was noted to be present, and it was
observed that Plaintiff had a normal mood, affect, and behavior. [R1098]. Her blood
pressure reading was 192/107.
[R1097].
She was diagnosed with cervical
radiculopathy,13 hypertension, and chronic neck pain. [R1099].
At an appointment with Dr. Ahmed taking place on October 14, 2014, Plaintiff
stated that she was feeling okay but that pain was causing her a lot of stress and she felt
that the Xanax was not working. [R1104]. Notes indicate that Plaintiff demonstrated
good cognition, eye contact, and social functioning; euthymic14 mood; fair insight,
judgment, memory, and family functioning; and poor concentration and sleep.
13
Radiculopathy is an alternate name for a herniated (slipped) disk, which
occurs when all or part of the softer center of a spinal disk is forced through a
weakened part of the exterior of the disk, forming a protruding mass and placing
pressure on nearby nerves.
Mayo Clinic, Herniated Disk,
https://www.mayoclinic.org/diseases-conditions/herniated-disk/symptomscauses/syc-20354095 (last visited 9/10/18); MedlinePlus, Herniated Disk,
https://medlineplus.gov/ency/article/000442.htm (last visited 9/10/18); J.E. Schmidt,
M.D., Attorneys’ Dictionary of Medicine, Illustrated H-115 (46th ed. 2012).
14
“Euthymic” relates to a moderate mood—“not manic or depressed.” PDR
Med. Dictionary 606 (1st ed. 1995).
22
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[R1104-05]. Dr. Ahmed continued Prozac and trazodone and discontinued Xanax.
[R1105].
Notes from an optometrist examination taking place on November 4, 2014, show
that Plaintiff’s blood pressure was so elevated (184/120) that she was referred to the
emergency room for urgent care. [R1054-55]. She was diagnosed with malignant
hypertension and ischemic optic neuropathy.15 [R1055].
Plaintiff presented to the Piedmont Healthcare emergency department on
November 5, 2014, with complaints of hypertension and chest pain. [R1070-71]. She
described the pain as throbbing and mild. [R1071]. Blood-pressure readings taken
during admission were as great as 145/98 and were eventually reduced to 117/86.
[R1073]. Plaintiff was diagnosed with uncontrolled hypertension and discharged as
stable. [R1076].
On December 8, 2014, neurologist Ronald DeVere, M.D., reviewed the record
and completed a report and answers to interrogatories regarding Plaintiff’s physical
impairments. [R1028-38]. While he found that the reports did not indicate that
15
Ischemic optic neuropathy is damage of the optic nerve caused by a
blockage of its blood supply. Merck Manual, Ischemic Optic Neuropathy,
https://www.merckmanuals.com/home/eye-disorders/optic-nerve-disorders/ischemicoptic-neuropathy (last visited 9/10/18).
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Plaintiff had any stroke residuals or neurological abnormality, he agreed with the
functional limitations the consultative examiners set forth based upon Plaintiff’s
right-arm pain and use of a sling. [R1029, 1031]. He also opined that Plaintiff was
limited to lifting and carrying up to ten pounds occasionally; could sit for a total of six
hours; could stand and walk three hours each; could never use her right hand for
reaching, handling, pushing, or pulling; and could only use the right hand occasionally
for fingering and feeling. [R1033-35].
Plaintiff presented to the Piedmont Healthcare emergency department on
January 27, 2015, with complaints of right-arm and right-leg pain. [R1062-63].
Plaintiff was observed to be well-oriented and tearful. [R1064]. Her blood pressure
was 137/92. [R1064]. No swelling was noted in the right arm and leg, and strength
was intact. [R1065]. The impression given was chronic arm and leg pain and anxiety.
[R1065].
Plaintiff presented to the Piedmont Healthcare emergency department on
March 2, 2015. [R1056]. Her blood pressure was 195/119. [R1057]. She was
diagnosed with anxiety state, unspecified, and unspecified essential hypertension.
[R1059].
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During an appointment with Dr. Ahmed taking place on March 24, 2015,
Plaintiff reported that she was feeling better and that her mood and sleep had improved,
although she reported hearing voices. [R1101]. Dr. Ahmed noted that Plaintiff was
fully oriented; her speech was soft; her mood was anxious and dysphoric; her behavior
was cooperative; her thought process was organized; her affect was flat; the content of
her thoughts was relevant; her memory, concentration, cognition, insight, and judgment
were fair; and her depression, anxiety, and insomnia were improving. [R1101-02]. He
continued Plaintiff on medication. [R1102].
On April 27, 2015, Plaintiff presented to Atlanta Heart Associates, P.C., for
follow-up of atherosclerosis16 and hypertension. [R1112]. She also reported having
recurring right-leg pain with swelling and having recently had chest pain and shortness
of breath. [R1112]. Her blood pressure reading was 148/88. [R1113]. The
cardiologist noted right-leg pain with redness and swelling, normal muscle strength and
tone, and appropriate mood, memory, and judgment. [R1113]. He also found that the
16
Atherosclerosis is characterized by irregularly distributed lipid deposits
in the innermost portions of large and medium-sized arteries. The deposits block blood
flow. PDR Med. Dictionary 162 (1st ed. 1995).
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atherosclerosis and hypertension were stable and advised NSAID drugs17 and warm
compresses for the right-leg pain. [R1113].
Plaintiff also saw Dr. Ahmed on April 27, 2015. [R1155]. Notes indicate that
she complained of feeling aggravated because of hot flashes and pain in her right leg.
[R1155]. Dr. Ahmed noted that Plaintiff had poor eye contact, dysphoric mood, flat
affect, and withdrawn behavior, but she had clear speech, organized thought process
with relevant content, good cognition, fair concentration, insight, judgment, social
functioning, appetite, and sleep, and intact memory. [R1155-56].
Plaintiff returned to Dr. Ahmed on May 27, 2015. [R1153]. She again
complained of feeling aggravated because of hot flashes and pain as well as disturbed
sleep. [R1153]. Dr. Ahmed found that Plaintiff had a depressed and irritable mood and
a flat affect, but she had clear speech, good eye contact, cooperative behavior,
organized thought process with relevant content, and fair memory, concentration,
cognition, insight, judgment, and social functioning. [R1153-54]. He diagnosed major
17
Nonsteroidal anti-inflammatory drugs (“NSAIDs”) are some of the most
commonly used pain medicines in adults. They can also decrease inflammation.
Traditional NSAIDs include aspirin, ibuprofen, and naproxen. Am. Coll. of
Rheumatology, NSAIDs (nonsteroidal anti-inflammatory drugs),
https://www.rheumatology.org/I-Am-A/Patient-Caregiver/Treatments/NSAIDs (last
visited 9/10/18).
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depressive disorder; increased amitriptyline18; continued Xanax, Prozac, and
depakote19; and continued Plaintiff’s referral to therapy. [R1154].
Dr. Ahmed completed a Medical Assessment of Ability to Sustain Work-Related
Activities (Mental) on May 28, 2015. [R1182-85]. Dr. Ahmed opined that Plaintiff
had chronic severe depression, anxiety, and mood swings, and that over the course of
an eight-hour workday, she could only make occupational, performance, and
personal-social adjustments twenty to forty percent of the time. [R1183-85]. He
further opined that Plaintiff’s impairments prevented her from working full-time
because she was unpredictable and irrational due to severe depression and anxiety,
especially under stress. [R1185]. He also checked a box indicating that she met
listing 12.04, Affective Disorders. [R1185].
18
Amitriptyline is a tricyclic antidepressant. It works by increasing the
amounts of certain natural substances in the brain that are needed to maintain mental
b a l a n c e .
M e d l i n e P l u s ,
A m i t r i p t y l i n e ,
https://medlineplus.gov/druginfo/meds/a682388.html (last visited 9/10/18).
19
Depakote (valproic acid) is used to treat certain types of seizures, to
prevent migraine headaches, and to treat mania in people with bipolar disorder.
MedlinePlus, Valproic Acid, https://medlineplus.gov/druginfo/meds/a682412.html (last
visited 9/10/18).
27
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On July 7, 2015, Plaintiff visited her primary care physician with complaints of
a migraine, a sore throat, and concerns about weight gain. [R1213]. A nurse noted
normal mood and affect, with intact memory, judgment, and insight. [R1215].
D.
Cooperative Disability Investigation
The CDI summary report resulting from the investigation the ALJ ordered after
the second hearing stated that Georgia Bureau of Investigation agent Jonathan Spurlock
discovered Plaintiff’s Facebook accounts, and on September 10, 2015, he met with
Plaintiff for fifteen minutes on her front porch. [R1189-91]. One of Plaintiff’s
Facebook accounts had 530 friends and another had 2,478 friends. [R1189]. Agent
Spurlock found that Plaintiff was friendly; she laughed appropriately at times during
the conversation; she did not appear to be depressed, anxious, groggy, or confused; she
was able to recall her cell phone number; she was able tell the investigator where
certain residents of a particular race lived and name the streets in the area; and she was
alert to her grandson’s need to take a certain schoolbook with him. [R1190-91].
Plaintiff was using both hands to access and type information into Facebook on her cell
phone. [R1191].
Agent Spurlock also interviewed two unnamed witnesses in a store where
Plaintiff shopped. [R1191]. The witnesses indicated that Plaintiff came into the store
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once or twice a week, usually by herself; seemed friendly; did not display any strange
or unusual behavior; did not need any special assistance; and shopped like any other
customer. [R1191-92].
E.
Vocational-Expert Testimony
A vocational expert (“VE”) testified at the hearing before the ALJ. [R155-61].
He testified that if a person of Plaintiff’s age, education, and work experience was
limited, as stated in Dr. DeVere’s opinion, to lifting up to ten pounds occasionally;
sitting for a total of six hours per workday, but only two hours at a time; standing for
a total of three hours per workday for one hour at a time; and walking for a total of
three hours per workday, but one hour at a time; and was unable to reach, handle, push,
or pull with the right upper extremity; was able to occasionally finger and feel with the
right upper extremity; was able to frequently push and pull with the left upper
extremity, with otherwise unlimited function in the left upper extremity; was able to
frequently operate foot controls with the right lower extremity; was unable to climb
ladders or scaffolds, crouch, or crawl; was unable to engage in more than occasional
climbing of ramps and stairs, balancing, stooping, or kneeling; was unable to tolerate
exposure to unprotected heights or moving mechanical parts; was able operate motor
vehicles only occasionally; and was able to tolerate no more than occasional exposure
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to humidity, wetness, pulmonary irritants, temperature extremes, or vibration, that
person could not work in any occupation. [R157-58]. The VE also testified that a
person of Plaintiff’s age, education, and work experience, who was limited, as stated
in Dr. Kolanu’s opinion, to no more than frequent reaching or handling with the right
upper extremity; no more than occasional fingering, feeling, pushing, or pulling with
the right upper extremity; no limitation in the left upper extremity; no more than
frequent operation of foot controls with the lower extremities; no climbing of ladders,
ropes, or scaffolds; no more than occasional climbing of ramps and stairs, balancing,
stooping, kneeling, crouching, or crawling; and no more than frequent exposure to
unprotected heights, moving mechanical parts, motor-vehicle operation, humidity,
wetness, pulmonary irritants, temperature extremes, or vibration, the person could work
as an information clerk (sedentary, semi-skilled), an insurance clerk (sedentary, semiskilled), or a surveillance-system monitor (sedentary, unskilled), and the only unskilled
job the person could perform was that of a surveillance-system monitor. [R158-59].
The VE further testified that if an individual had the same physical limitations as the
second hypothetical, but, as set forth by consultative psychologist Dr. Allsopp, for fifty
percent of the day, the person was unable to interact with supervisors or coworkers,
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respond appropriately to routine changes in the workplace, or handle workplace
stressors, there would be no jobs that could be performed. [R160].
Subsequent to receiving the CDI report, the ALJ propounded interrogatories to
a different VE. [R490-93]. When asked about the working capabilities of a person of
Plaintiff’s age, education, and experience, who could perform work at the medium
exertional level, who could only occasionally stoop, kneel, crouch, or crawl; could
perform simple tasks and make simple decisions; would be unable to work in very close
proximity to others; could sustain attention for performance of simple tasks for up to
two hours at a time; could interact with the public no more than occasionally; could
maintain basic social interactions; could tolerate social interaction that is merely
incidental to the work being performed; would be unable to tolerate a fast-paced work
environment; and could tolerate infrequent changes that are gradually introduced, the
VE responded with six different jobs: hand packager (medium), machine packager
(medium), laundry sorter (light), mail sorter (light), addressing clerk (sedentary), and
final assembler (sedentary). [R491-92].
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V.
ALJ’S FINDINGS
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant meets the insured status requirements of the Social
Security Act through September 30, 2012.
2.
The claimant has not engaged in substantial gainful activity since
August 1, 2011, the alleged onset date (20 CFR 404.1571 et seq.,
and 416.971 et seq.).
3.
The claimant has the following severe impairments:
depression/major depressive disorder and anxiety/agoraphobia
(20 CFR 404.1520(c) and 416.920(c)).
...
4.
The claimant does 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, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
...
5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c), except the claimant is able to do no more than
occasional stooping, kneeling, crouching, crawling. She is able to
perform simple tasks; able to make simple decisions; able to sustain
attention for performance of simple tasks for up to two hours at a
time; able to interact with the public no more than occasionally;
able to maintain basic social interactions; able to tolerate infrequent
changes that are gradually introduced. However, she is unable to
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work in very close proximity to others and unable to tolerate a
fast-paced work environment.
...
6.
The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
...
7.
The claimant was born on March 22, 1973 and was 38 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills
(See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
...
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from August 1, 2011, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
[R103-19].
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The ALJ explained, among other things, that based on VE interrogatory
responses containing testimony stating that a person of Plaintiff’s age, education, and
experience, with the above-stated RFC could work as a hand packager (medium),
machine packager (medium), laundry sorter (light), mail sorter (light), addressing clerk
(sedentary), and final assembler (sedentary), he found that Plaintiff could perform work
occurring in substantial numbers in the national economy. [R118-19].
VI.
CLAIMS OF ERROR
Plaintiff first argues that the ALJ erred in discrediting the medical opinions of
record in favor of the lay opinion of the GBI agent and that the decision therefore is not
based upon substantial evidence. [Doc. 9 at 13-18]. Specifically, she contends that the
ALJ abused his discretion by ordering the CDI; that because the record contains no
evidence regarding the GBI agent’s medical training, the CDI report cannot be credited
over a medical opinion; that the ALJ did not supply good cause for giving Dr. Ahmed’s
treating opinion less than substantial or considerable weight; that the ALJ erred by
discounting the opinion of examining neurologist Dr. Kolanu and reviewing neurologist
Dr. DeVere that Plaintiff was limited to sedentary work with limitations of use of her
dominant right hand; and that there is no substantial evidence to support the ALJ’s
determination that Plaintiff is capable of performing the reduced scope of medium work
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set forth in the RFC.20 [Id.]. Second, Plaintiff contends that “fast-paced production”
is insufficiently defined and that the ALJ therefore posed an incomplete hypothetical
to the VE. [Id. at 18-19]. The Court addresses the arguments in their logical order.
A.
CDI Report
After careful evaluation of Plaintiff’s arguments regarding the CDI report, the
Court finds no reversible error in the ALJ’s decision to order the report or in his
consideration of the contents of the report. As to the ALJ’s decision to order the report,
Plaintiff concedes that an ALJ has discretion to order a CDI to prevent fraud.
[Doc. 9 at 13]. She argues, however, that in this case, the ALJ ordered the CDI merely
because he was unhappy with the various medical opinions, all of which, Plaintiff
argues, showed that she was unable to work: she argues that because the consultative
examinations with Dr. Allsopp and Dr. Cain were scheduled in early July, [citing R993,
20
To the extent that Plaintiff’s briefs could be read to contend that the ALJ
otherwise erred in his weighing of the consultative psychologists and the psychological
medical expert, the Court finds that the issue is, at best, perfunctorily addressed, as
Plaintiff has failed to identify any error in the ALJ’s evaluation of any particular
opinion, other than the issue of the CDI report. [See Doc. 9 at 13-18]. “Issues raised
in a perfunctory manner, without supporting arguments and citation to authorities, are
generally deemed to be waived.”
N.L.R.B. v. McClain of Ga., Inc.,
th
138 F.3d 1418, 1422 (11 Cir. 1998). Accord Outlaw v. Barnhart, 197 Fed. Appx. 825,
827 n.3 (11th Cir. Aug. 10, 2006) (per curiam) (holding that a claim was waived where
its proponent did not elaborate on the claim or provide a citation to authority about the
claim).
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997], and the neurological consultative examination with Dr. Kolanu was not scheduled
until August 20, 2014, [R1010], “it is apparent that the ALJ was not happy with the
results of the first two examinations, so he ordered a third”; when the neurological
consultation with Dr. Kolanu was also favorable to Plaintiff, the ALJ sought the
opinion of reviewing physician Dr. DeVere, [see R1010-22]; and when all of the
opinions of the medical experts or consultative examiners, including Dr. DeVere’s
opinion, would lead to a finding of “no jobs,” the ALJ commissioned the CDI to use
as a basis to deny Plaintiff’s claims, [citing R157-60]. [Doc. 9 at 13-14]. She further
contends that the medical opinions were generally consistent with one another and that
none of the medical experts expressed an opinion that Plaintiff was uncooperative,
malingering, or otherwise suspect, and that ordering the CDI was therefore
inappropriate. [Doc. 9 at 13-14].
Plaintiff does not acknowledge, however, that the ALJ stated in the decision that
he ordered the CDI in this case “based on the Agency’s mandate to report suspected
fraud so that it may be investigated.” [R101]. The ALJ then went on to specify that
Plaintiff’s testimony and presentation at both hearings raised questions as to her
veracity, as she was “attractively styled and very neatly dressed,” but presented as
though she was extremely groggy, unable to stay awake, unable to pay attention to the
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proceedings, and unable to listen to or promptly respond to simple questions; that her
conduct at the hearing contrasted with most of the treatment record, which mostly
reflected normal mood, affect, and behavior and a relatively modest and consistent
course of treatment; and that her conduct at the hearing and the impression of
incapacity she promoted were not consistent with her ability to operate a motor vehicle,
manage a home, and handle family finances. [R115-16]. He also noted that Plaintiff
had a record of conviction for check-related fraud, [R117], and that her presentation at
consultative examinations and some treatment visits had been questionable, [R117; see
R108 (noting that Plaintiff’s use of a neck brace, knee brace, and sling at the
consultative examination prevented Dr. Cain from testing range of motion); R109
(noting that Dr. Kolanu had difficulty measuring weakness due to Plaintiff’s complaints
of post-stroke pain, that Dr. Kolanu observed that pain is not a common symptom after
a stroke, and that Dr. Kolanu noted that from what could be measured, Plaintiff had
normal sensation and no significant weakness); R109 (noting that Dr. DeVere reiterated
that there was no neurological disorder or reason for weakness); R112 (noting that
Plaintiff reported forgetfulness to Dr. Echols, but Dr. Echols found Plaintiff’s memory
to be intact on examination); R113 (referencing Dr. Ahmed’s opinion that Plaintiff was
magnifying her symptoms and catastrophizing)].
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These issues certainly provide substantial evidence to support the ALJ’s decision
to order the CDI under the Agency’s mandate to report fraud, and Plaintiff has not
argued that any of the findings underpinning the ALJ’s decision to order the CDI are
without support in the record or that there was any legal bar to the ALJ’s consideration
of the evidence. Consequently, the undersigned finds that the ALJ did not err in
ordering the CDI.
Likewise, contrary to Plaintiff’s representations, the Court finds nothing in the
ALJ’s decision to indicate that he discredited any of the medical opinions in favor of
medical opinions provided by Agent Spurlock. Notably, Plaintiff does not point to any
medical opinion stated in the CDI report, [see Doc. 9 at 17], and the Court’s own
review of the CDI report reveals only one medical opinion, that Plaintiff “did not
appear to be or act as if she was depressed or anxious,” [R1190], which the ALJ
implicitly discredited in finding that depression/major depressive disorder and
anxiety/agoraphobia are among Plaintiff’s severe impairments, [see R103; see also
R116 (“Indeed, the claimant does have depression and anxiety, although they are often
effectively managed by medication.”)]. Rather, the ALJ’s decision shows that he
compared the investigator’s lay observations to Plaintiff’s claims of limitation:
e.g., Plaintiff’s claims of social isolation compared to the CDI report’s description of
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her friendliness, her familiarity with neighbors, and her many Facebook friends,
[R105, 115, 117]; Plaintiff’s claims of disorientation and memory loss compared to the
CDI report’s description of her demonstrated knowledge of neighbors and local streets,
ability to use a cell phone, and her alertness to her grandson’s need to take a certain
schoolbook with him, [R105, 112-13, 115]; and Plaintiff’s claims of almost complete
inability to use her right upper extremity compared to the CDI report’s description of
her ability to shop and carry purchases without assistance and use of both hands to
access and type information into Facebook on a cell phone, [R115-17]. An ALJ is
certainly permitted to consider statements from non-medical sources along with the rest
of the record to help evaluate the credibility of a claimant’s allegations of limitation.
See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4) (“We will consider whether there are
any inconsistencies in the evidence and the extent to which there are any conflicts
between your statements and the rest of the evidence . . . .”); Social Security Ruling
(“SSR”) 06-3p, 2006 WL 2329939 at *3-4 (explaining that the regulations require
consideration of evidence from non-medical sources, “which tend[s] to support or
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2)
contradict a medical opinion”).21 For these reasons, the Court finds no call for reversal
in Plaintiff’s arguments regarding the CDI report.
B.
Opinion of Dr. Ahmed
The Court turns next to Plaintiff’s argument that the ALJ erred by assigning
“less” weight to the treating opinion of Dr. Ahmed.
[Doc. 9 at 15-17].
The
Commissioner evaluates every medical opinion the agency receives, regardless of the
source.
20 C.F.R. §§ 404.1527(c), 416.927(c); cf. 20 C.F.R. §§ 404.1527(b),
416.927(b) (“In determining whether you are disabled, we will always consider the
medical opinions in your case record together with the rest of the relevant evidence we
receive.”); SSR 06-03p, 2006 WL 2329939 at *4 (“[T]he [Social Security] Act requires
us to consider all of the available evidence in the individual’s case record in every
case.”). Thus, both examining and non-examining sources provide opinion evidence
for the ALJ to consider in rendering a decision. 20 C.F.R. §§ 404.1527(c), (e),
416.927(c), (e). In determining the weight of medical opinions, the ALJ must consider:
21
Although the cited versions of 20 C.F.R. §§ 404.1529 and 416.929—as
well as 20 C.F.R. §§ 404.1502, 404.1527, 416.902, and 416.927—have been
superceded and SSR 06-3p, as well as SSR 96-2p, have been rescinded, they remain
applicable to cases filed prior to March 27, 2017. 20 C.F.R. §§ 404.1502, 404.1527,
404.1529, 416.902, 416.927, 416.929 (2017); Corr. Not. of Rescission of Soc. Sec.
Rulings, 96-2p, 96-5p, & 06-3p, 2017 WL 3928297 (Apr. 6, 2017); Not. of Rescission
of Soc. Sec. Rulings, 96-2p, 96-5p, & 06-3p, 2017 WL 3928298 (Mar. 27, 2017).
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(1) the examining relationship; (2) the treatment relationship; (3) evidence supporting
the conclusions; (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 the claimant’s case record.
20 C.F.R. §§ 404.1527(c)(1)-(6),
416.927(c)(1)-(6).
“[T]he ALJ must state with particularity the weight given to different medical
opinions and the reasons therefor,” such that the reviewing court may determine
“whether the ultimate decision on the merits is rational and supported by substantial
evidence.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)
(punctuation omitted). Moreover, where an ALJ gives the opinion of a treating
physician less than substantial or controlling weight, he must clearly articulate reasons
establishing good cause for doing so. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
Somogy v. Comm’r of Soc. Sec., 366 Fed. Appx. 56, 63 (11th Cir. Feb. 16, 2010) (citing
Lewis, 125 F.3d at 1440)); SSR 96-2p, 1996 WL 374188. 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.
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Phillips v. Barnhart,
357 F.3d 1232, 1241 (11th Cir. 2004). The good cause required before the treating
physicians’ opinions may be accorded little weight is not provided by the report of a
non-examining physician where it contradicts the report of the treating physician. Johns
v. Bowen, 821 F.2d 551, 554 (11th Cir. 1987). “ ‘The opinions of non-examining,
reviewing physicians, . . . when contrary to those of examining physicians are entitled
to little weight in a disability case, and standing alone do not constitute substantial
evidence.’ ” Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988) (quoting Sharfarz v.
Bowen, 825 F.2d 278, 280 (11th Cir. 1987)) (ellipses in Lamb). Accord Spencer ex rel.
Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985) (“[R]eports of physicians who
do not examine the claimant, taken alone, do not constitute evidence on which to base
an administrative decision.”); Strickland v. Harris, 615 F.2d 1103, 1109 (5th Cir. 1980)
(“[R]eports of physicians who did not examine the claimant, taken alone, would not be
substantial evidence on which to base an administrative decision.”) (quotation marks
omitted). Failure to articulate the reasons for giving less than substantial or controlling
weight to the opinion of a treating physician is reversible error.
Lewis,
125 F.3d at 1440.
Plaintiff argues that the ALJ should have assigned controlling or substantial
weight to Dr. Ahmed’s opinion. [Doc. 9 at 15-17]. She points out that Dr. Ahmed
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treated Plaintiff for several years prior to rendering his opinion, and she contends that
she was “invariably depressed and anxious” at each visit.
[Id. at 15
(citing [R1183-85])]. Plaintiff also appears to suggest that Dr. Ahmed’s opinion was
bolstered by Dr. Allsopp’s examining opinion and that Dr. Allsopp’s opinion was itself
made stronger by Dr. Allsopp’s having taken Dr. Echols’s opinion into account.
[Doc. 9 at 15]. She additionally points out that Dr. Allsopp found Plaintiff to be a
cooperative, alert, and reliable informant, [id. at 15 (referencing [R983, 985])], and she
avers that consultative psychological examiners Dr. Rush and Dr. Echols found
Plaintiff to have borderline IQ, major depression, and anxiety, and that their opinions
were therefore consistent with Dr. Ahmed’s, [Doc. 9 at 15 (citing [R1044, 1050])].
Plaintiff also contends that because there is no indication in the record what medical
training the GBI agent has, his opinion cannot constitute “good cause” for discrediting
Dr. Ahmed’s opinion. [Doc. 9 at 17]. Finally, she argues that the agency physicians
are highly trained physicians chosen by the Social Security Administration for their
reliability, expertise, and knowledge of Agency disability evaluation criteria, and none
of them found Plaintiff to be “faking it.” [Id. at 17-18 (citing [R985, 1044, 1051])].
It is true that the evidence Plaintiff cites could have constituted substantial
evidence to support a decision by the ALJ to assign Dr. Ahmed’s opinion controlling
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or substantial weight. However, the standard for the Court is not whether the evidence
in the record could support Plaintiff’s interpretation of the facts or even the Court’s
interpretation, but instead, whether, after application of the proper legal standards and
resolution of the crucial issues, substantial evidence supports the Commissioner’s
findings. Mitchell v, Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014);
Dyer, 395 F.3d at 1210; see 42 U.S.C. § 405(g).
Plaintiff has not persuaded the Court that the ALJ reversibly erred in his
consideration of Dr. Ahmed’s opinion. First, as discussed above, the ALJ explained
in the decision that he indeed found certain medical and lay evidence to indicate that
Plaintiff may not have been entirely truthful in her statements and presentation. See
supra Part VI.A. Second, as also discussed above, the Court finds nothing in the
decision to indicate that the ALJ adopted a medical opinion from the CDI report.
See id. Third, the ALJ also explained that he gave less weight to Dr. Ahmed’s opinion
because he found it inconsistent with many of Dr. Ahmed’s own treatment notes and
with the observations of other treating physicians: notes from Plaintiff’s October 2012
visit with her primary care physician, where she reported that she was doing better with
her depression and anxiety and was observed to have normal mood and affect, full
orientation, and normal memory, judgment, and insight, [R673, 675]; January 2014
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notes from Piedmont Hospital indicating that Plaintiff denied anxiety or difficulty
concentrating and that she was found to have a normal mood and appropriate affect,
with normal speech, logical thought, and intact reasoning, [R898-99]; notes from a May
2014 visit with Plaintiff’s primary care physician, where she stated that she had not
taken medication for anxiety for one month, yet she had no psychiatric complaints
during a review of systems, and an examination indicated normal mood and affect and
intact memory, [R989-91]; September 2014 notes from Piedmont Hospital indicating
that Plaintiff’s mood, memory, and judgment were observed to be normal, [R1098];
April 2015 notes from Atlanta Heart Associates indicating that Plaintiff’s mood,
memory, and judgment were normal, [R1113]; and notes from a July 2015 visit with
Plaintiff’s primary care physician, where she was found to have normal mood and
affect with intact memory, judgment, and insight, [R1215]. [R114-15]. Additionally,
he explained that although there were some occasions when Dr. Ahmed observed poor
concentration, the occasions were limited compared to Plaintiff’s usual presentation.
[R115]. The ALJ also noted that Plaintiff often went for significant periods without
treatment and that her status without medication was not substantially worse than when
she received effective medication. [R115; see also R815-26, 1101-11].
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Other than her challenges to the CDI report, which, as discussed above, the Court
does not find persuasive, Plaintiff does not contend that the ALJ’s reliance on any of
these facts in discounting Dr. Ahmed’s opinion constituted legal or factual error.
[See Doc. 9 at 13-18]. Thus, given the ALJ’s robust explanation of his reasons for
assigning “less” weight to the opinion of Dr. Ahmed, Plaintiff has not persuaded the
Court that the ALJ erred in his evaluation of the opinion.
C.
Fast-Paced Production Work
Plaintiff also argues that the ALJ’s determination that there are other jobs
Plaintiff could perform is not supported by substantial evidence because the ALJ did
not define “fast-paced work environment” when he posed his hypothetical questions
in interrogatories presented to the VE. [Doc. 9 at 18-19]. She contends that “[i]t seems
apparent” that the employer would set the production pace for the packaging, sorting,
and assembling jobs the VE named, depending upon the economy, the demand for the
product, and perhaps the season of the year, and that one could not count upon a slow
pace. [Id. at 18]. She also points to a Seventh Circuit opinion, Varga v. Colvin,
794 F.3d 809, 815 (7th Cir. 2015), wherein the court stated that “[w]ithout . . . a
definition [of “fast paced production”], it would have been impossible for the VE to
assess whether a person with [the claimant’s] limitations could maintain the pace
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proposed,” [Doc. 9 at 19], and she further suggests that avoiding “fast-paced
production” may be an accommodation and not the way the jobs are performed in the
national economy, [id. (citing 20 C.F.R. § 404.1573(c)(5))].
For a number of reasons, the Court does not find the argument persuasive. First,
Varga, as a decision of the Seventh Circuit, is not binding on this Court. See Bonner
v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (“Under the
established federal legal system the decisions of one circuit are not binding on other
circuits.”).
Second, Plaintiff appears to interpret Varga as having held that “fast-paced
production” must always be further defined in order for a VE to assess whether a
person with the claimant’s limitations could maintain the pace proposed.
[See Doc. 9 at 19]. The Court does not agree. In Varga, the ALJ found that the
claimant had moderate limitations in concentration, persistence, or pace and in various
functional areas within that category, but the ALJ adopted an RFC and posed a
hypothetical question to the VE that did not include those limitations and instead only
limited the claimant to “simple, routine, and repetitive tasks in a work environment free
of fast paced production requirements.” Varga, 794 F.3d at 814. Here, in contrast,
Plaintiff does not point to any limitations in the concentration, persistence, or pace
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category that the ALJ adopted but did not include in the RFC or the hypothetical
question posed to the VE. [Doc. 9 at 18-19]. Accordingly, even if Varga were binding
upon courts in this Circuit, it does not speak to the issue Plaintiff raises here.
Plaintiff’s reliance on 20 C.F.R. § 404.1573(c)(5) is also misplaced, as the
regulation does not pertain to determining a claimant’s vocational capabilities but rather
provides guidance on determining whether the claimant has participated in substantial
gainful activity, another issue that is not implicated here.
Moreover, as the
Commissioner points out, the regulations permit the Commissioner to rely on a VE for
the VE’s knowledge and expertise. Bryant v. Comm’r of Soc. Sec., 451 Fed. Appx. 838,
839 (11th Cir. Jan. 4, 2012) (explaining that “[t]he Social Security regulations provide
that an ALJ may rely on a VE’s knowledge and expertise, and they do not require a VE
to produce detailed reports or statistics in support of her testimony”); Curcio v. Comm’r
of Soc. Sec., 386 Fed. Appx. 924, 926 (11th Cir. July 15, 2010) (rejecting a challenge
to the jobs identified where the claimant’s attorney stipulated to the VE’s qualifications,
did not object to VE testimony about the jobs the claimant could perform, and offered
no evidence to controvert the VE testimony); see also 20 C.F.R. §§ 404.1566(e),
416.966(e) (“If the issue in determining whether you are disabled is whether your work
skills can be used in other work and the specific occupations in which they can be used,
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or there is a similarly complex issue, we may use the services of a vocational expert or
other specialist.”). Cf. 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2) (“A vocational
expert or specialist . . . “may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and mental limitations
imposed by the claimant’s medical impairment(s) can meet the demands of the
claimant’s previous work . . . .”); Leonard v. Comm’r of Soc. Sec., 409 Fed. Appx. 298,
301 (11th Cir. Jan. 19, 2011) (finding no error where VE based testimony on knowledge
gained from personal experience).
Plaintiff does not argue that her attorney objected to the VE’s qualifications or
the interrogatory responses regarding the jobs a person with the stated RFC could
perform, and she does not proffer any evidence to controvert the VE testimony.
[Doc. 9 at 18-19]. The Court therefore finds nothing in Plaintiff’s argument upon
which to base a conclusion that the VE’s interrogatory response, [R492], was
insufficient to support the ALJ’s finding that a person unable to tolerate a fact-paced
work environment would nevertheless be capable of working in the packaging, sorting,
and assembling occupations relied upon in the decision.
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D.
Physical RFC
Plaintiff also summarily contends that the ALJ’s determination that Plaintiff is
capable of performing medium work is not supported by substantial evidence and that
the ALJ erred by failing to credit examining neurologist Dr. Kolanu and reviewing
neurologist Dr. DeVere’s opinions that Plaintiff was limited to sedentary work with
limitations of use of her dominant right hand. [Doc. 9 at 13-14 & n.12; Doc. 11 at 1-2].
Like Plaintiff, the Court is mystified as to the ALJ’s basis for determining that Plaintiff
is capable of medium work, which, as Plaintiff points out, requires lifting of up to fifty
pounds at a time with frequent lifting or carrying of objects weighing up to twenty-five
pounds. 20 C.F.R. §§ 404.1567(a), 416.967(a). Plaintiff concedes, however, that both
Dr. Kolanu and Dr. DeVere opined that Plaintiff was capable of performing sedentary
work with limitations in the use of her right hand. [Doc. 9 at 13-14]. Two sedentary
jobs—addressing clerk and final assembler—were among the representative
occupations supplied by the VE, [R492], and relied upon by the ALJ in finding that
Plaintiff was capable of working, [R118]. Plaintiff has not argued that the sedentary
jobs the VE listed were too limited in number to serve as representative occupations
available in significant numbers in the national economy. [See generally Docs. 9, 11].
Thus, the Court finds no basis for determining that the ALJ’s finding regarding
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Plaintiff’s exertional capabilities constituted reversible error. See Shinseki v. Sanders,
556 U.S. 396, 406, 410 (2009) (holding that upon review of ordinary administrative
proceedings, the burden of showing that an error is harmful normally falls upon the
party attacking the agency’s determination); Doughty, 245 F.3d at 1278 n. 2 (noting
that it is the claimant’s burden to prove that she is unable to perform the jobs that the
Commissioner lists); Columbus v. Colvin, Civ. Action File No. 1:13-CV-04266-AJB,
2015 WL 5311080, at *11 (N.D. Ga. Sept. 11, 2015) (Baverman, M.J.) (finding no
reversible error where the plaintiff had not argued that the additional limitations she
advocated would have prevented her from performing occupations relied upon by the
ALJ);
Young
v.
Astrue,
No.
8:09-cv-1056,
2010 WL 4340815,
at
*4
(M.D. Fla. Sept. 29, 2010) (noting that, in general, an error is harmless in a Social
Security case if it “do[es] not affect the ALJ’s determination that a claimant is not
entitled to benefits”).
The Court also is not persuaded that the ALJ reversibly erred in his consideration
of the neurologists’ opinions regarding limitations in Plaintiff’s ability to use her right
hand. Both Dr. Kolanu and Dr. DeVere opined that Plaintiff was limited to only
occasionally lifting and carrying up to ten pounds, [R1011-12, 1033-35], which is
inherently accommodated by an occupation classified at the sedentary level,
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20 C.F.R. §§ 404.1567(a), 416.967(a) (“Sedentary work involves lifting no more than
10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools.”). And while it is true that Dr. Kolanu further limited Plaintiff
to only occasionally using her right hand for fingering, feeling, pushing, or pulling, and
frequently using it for reaching and handling, [R1013], and Dr. DeVere stated, based
on Plaintiff’s claims of chronic arm pain and her use of a sling, that she could never use
her right hand for reaching, handling, pushing, or pulling and could only occasionally
use it for fingering and feeling, [R1035], the opinions of non-treating sources are not
due the deference or consideration given to a treating source, and there is no
articulation requirement for evaluating non-treating opinions that is comparable to the
articulation requirement for evaluating treating-source medical opinions.
See
20 C.F.R. §§ 404.1502, 404.1527(c)(2), (e), 416.902, 416.927(c)(2), (e); McSwain v.
Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (explaining that opinions of one-time
examiners are not entitled to deference); Sharfarz, 825 F.2d at 280 (explaining that
opinions of nonexamining, reviewing physicians are not entitled to deference). Instead,
the ALJ must consider factors bolstering or cutting against the opinion, including
factors such as whether evidence supports the opinion and the opinion’s consistency
with the record as a whole, see 20 C.F.R. § 404.1527(c), 404.1529(c)(4), 416.927(c),
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416.929(c)(4), SSR 06-3p, 2006 WL 2329939 at *3-4, and the ALJ “may reject any
medical opinion if the evidence supports a contrary finding,” Sharfarz, 825 F.2d at 280.
Here, the ALJ discussed reasons for discounting the opinions of right-arm limitations:
imaging of Plaintiff’s neck and right wrist showed minimal degenerative changes,
[R107-08, 110-11, 572-73]; in August 2012, Plaintiff denied arthritic symptoms and
had normal muscle strength and tone, [R111, 794, 796]; in January 2014, Plaintiff
denied joint pain, loss of strength, or fatigue, and physical examination revealed normal
range of motion in the neck, [R111, 898]; Dr. Kolanu’s examination revealed normal
sensation and no significant weakness, and Dr. Kolanu noted that Plaintiff’s claims of
pain following a stroke were atypical and that her claims of pain made it difficult to
assess her claims of weakness, [R109, 1010-22]; in September 2014, a review of
systems reflected no numbness or weakness, and physical examination revealed normal
strength, [R111, 1097-98]; in November 2014, there was normal range of motion, no
tenderness in the musculoskeletal system, and Plaintiff reported no fatigue,
[R111, 1071-72]; Dr. DeVere found no neurological disorder and no reason for the
claimed weakness, and he based the right-arm limitations on Plaintiff’s claims of pain
and use of a sling, [R109, 1028-38]; a January 2015 visit to Piedmont Hospital’s
emergency department with claims of moderate right-arm pain showed intact strength
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and no edema, [R109, 1065]; at an examination taking place in April 2015, Plaintiff had
normal muscle strength and tone, no motor or sensory deficit, and no edema, [R111,
1113]; in July 2015, Plaintiff was observed to have no decreased range of motion,
atrophy, or sensation deficit in her musculoskeletal system, [R111, 1215]; her
medication for pain was limited and, when prescribed, was generally mild, [R111];
more intensive treatment was not indicated, [R111]; Plaintiff admitted to being able to
prepare simple meals, shop, and do laundry, [R111, 431-42]; the medical evidence of
record did not support Plaintiff’s claim of having been advised to have a rod inserted
into her right arm and have neck surgery, [R111]; the opinions of Plaintiff’s physical
limitations were based on limited examinations when she acted in a manner different
than on most typical occasions, [R111]; Plaintiff had a propensity to magnify her
symptoms, [R111, 113]; and lay observations that Plaintiff shopped without special
help, did not need assistance carrying purchases, “acted like any other customer,” and
used both hands to access and type information into Facebook on her cell phone
suggested that she retained good use of both hands, which “contrast[ed] sharply” with
Plaintiff’s claims and her presentation at her consultative examinations, [R115-17].
The Court finds that these reasons constitute substantial evidence for rejecting the
nonexertional right-arm limitations imposed by consultative neurologist Dr. Kolanu and
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reviewing neurologist Dr. DeVere. Moreover, Plaintiff has not argued that the claimed
limitations, even if fully credited, would prevent her from performing the sedentary
occupations relied upon by the ALJ, [see generally Docs. 9, 11], and thus has waived
the issue, see Doughty, 245 F.3d at 1278 n.2 (providing that, to be considered disabled,
the claimant must prove an inability to perform the jobs that the Commissioner lists);
see also Outlaw, 197 Fed. Appx. at 827 n.3 (holding that a claim was waived where its
proponent did not supply an argument); Jones v. Comm’r of Soc. Sec., 181 Fed. Appx.
767, 770 (11th Cir. May 12, 2006) (holding that only the arguments asserted before the
district court were preserved for appeal) (citing Jones, 190 F.3d at 1228).
VII. CONCLUSION
For the reasons above, the Court AFFIRMS the final decision of the
Commissioner.
The Clerk is DIRECTED to enter final judgment in the
Commissioner’s favor.
IT IS SO ORDERED and DIRECTED, this the 10th day of September, 2018.
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