Bryant v. Colvin

Filing 25

ORDER overruling Plaintiff's 22 Objections; adopting the 21 Magistrate Judge's Report and Recommendation as the opinion of the Court; denying Plaintiff's 23 Motion for Oral Argument; affirming the Acting Commissioner's final decision; closing this civil action; and directing the Clerk to enter final judgment in favor of the Acting Commissioner. Signed by Judge J. Randal Hall on 3/16/2016. (jah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

MOLLY LOU BRYANT,
Plaintiff
CV 115-005

v.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation ("R&R"). The Magistrate Judge rejected a bevy of

claims, ranging from the ALJ's alleged failure to consider certain impairments to his failure
to find Plaintiff disabled for a closed twelve-month period. (See doc. no. 21.) Plaintiff,

through her objections, now takes issue with the Magistrate Judge's resolution of her seventh
ground of error alleging the ALJ incorrectly rejected the state consultants' RFC assessment

of light work, and failed to support his RFC determination of medium work with an RFC
assessed by a physician. (Doc. no. 22, pp. 2-12.) Plaintiff also alleges, for the first time, that
the ALJ erred in not assigning a specific weight to the examination of Dr. Fredrick House, a
consultative examiner. (Id. at 12.)

The ALJ found that Plaintiff could perform medium work as defined in 20 C.F.R.

404.1567(c)1 except that she could frequently climb ramps and stairs, never climb ladders,
ropes, or scaffolds, frequently balance and stoop, never kneel, crouch, or crawl, and avoid
concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. R. at 487. As the

R&R explained, the formulation of Plaintiffs RFC by the ALJ involved an extensive review

of thousands of pages of medical records, a credibility determination supported by citations
to the record, and consideration of Plaintiffs condition as a whole. (Doc. no. 21, pp. 6-7.)

The Magistrate Judge also noted the ALJ's reliance on an examination by Dr. House finding

normal range of motion in all joints and normal strength in all extremities. (Id.) The ALJ
remarked that these findings were "benign." R. at 491. Further, the R&R found the ALJ

properly discredited the opinions of state consultants Dr. Abraham Oyewo and Dr. Ramona
Minnis due to their failure to take into account Plaintiffs sustained remission of TTP, a

serious hematological condition requiring plasma therapy. (Doc. no. 21, p. 23.)
A confusing current underlying this case is that a vast amount of the medical record
was submitted after the ALJ hearing on October 30, 2012. R. at 496-498. Thus, when they
made their assessments, neither Dr. House nor the two state consultants were in possession of

medical records spanning from December 2010 to October 2012, a period in which
Plaintiffs TTP was noted to be in sustained hematological remission. See R. at 491. In

rejecting the state consultants' opinion, the ALJ pointed out that they did not have this
1 As defined in 20 C.F.R. § 404.1567, medium work involves lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she can also do sedentary and light work.

evidence. R. at 491. Because the state consultants did not examine Plaintiff, as did Dr.

House, and based their findings on an incomplete medical record not showing Plaintiffs

remission, the ALJ appropriately assigned less weight to their opinions. Plaintiff contends

that Dr. Oyewo did have evidence that Plaintiff was in remission at the time he made his
initial assessment, with records from February 2010 noting remission, but Plaintiff relapsed

only five months after this evaluation.2 R. at 2193. Thus, Dr. Oyewo's opinion, based on a
few months of remission and an out-of-date medical record, was properly given less weight
where the evidence before the ALJ showed more than two years of remission and a largely
normal physical examination by Dr. House.

Plaintiff also argues that Dr. Minnis' report takes into account Dr. House's evaluation
and thus the ALJ cannot support his given RFC with Dr. House's evaluation. This argument
violates the cardinal rule, absent good cause, that the opinions of evaluating physicians like
Dr. House are to be accorded more weight than conflicting opinions by state consultants like

Dr. Minnis. Davison v. Astrue, 370 F. App'x 995, 996 (11th Cir. 2010), In addition, the
ALJ's RFC assessment was based on a comprehensive review of the evidence including the
extensive medical record, Plaintiffs testimony, Dr. House's examination, the RFCs provided

by the state consultants, and the ALJ's credibility determination. It is Plaintiffs burden to

prove disability and introduce evidence that demonstrates she can only perform light workas

2Plaintiffs argument oddly relies on the fact that Dr. Oyewo's assessment was based on
an incomplete medical record because he did not have the evidence of relapse even though his
assessment was made on August 24, 2010, a time when Plaintiff was receiving regular
plasmapheresis treatments. See R. at 981.

asserted, not the ALJ's. Green v. Soc. Sec. Admin.. 223 F. Appfx 915, 923 (11th Cir. 2007

("Dr. Bryantfs evaluation, however, was the only evidence that Green produced, other than

her own testimony, that refuted the conclusion that she could perform light work.") Further,
as noted above, Dr. Minnis did not have the evidence of Plaintiff s sustained remission, and

thus, the opinion was appropriately discounted.

As a second contention against the RFC, Plaintiff argues it is not supported by substantial

evidence because there is not an expert-assessed RFC directly supporting it. In making this

argument, Plaintiff contends the Eleventh Circuit has adopted a First Circuit standard from
Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996), requiring
a medical source statement or physical capacities evaluation directly supporting the RFC in

cases involving more than a mild physical impairment. (Doc. no. 22, pp. 4-8.) Thus,
according to Plaintiff, the formulated RFC is inadequate because the ALJ discounted the only
two RFCs assessed by medical experts. Plaintiff also argues that, because Dr. House did not

perform a physical capacities evaluation but only a physical exam, his findings cannot form
the basis of an RFC supported by substantial evidence.

The Eleventh Circuit's non-binding opinion in Castle v. Colvin, 557 F. App'x 849,

851 (11th Cir. 2014) does not adopt a First Circuit standard and make it the law of this

Circuit as suggested by Plaintiff. Castle addressed a decision from the Northem District of
Alabama, a district heavily cited by Plaintiff and which routinely applies this First Circuit
standard.

See e^g,, Stewart v. Michael J. Astrue, No. 5:11-CV-2103-VEH, 2012 WL

1745618, at *5 (N.D. Ala. May 14, 2012). The Eleventh Circuit in Castle noted that "the

pertinent regulations state that the ALJ has the responsibility for determining a claimant's
RFC." 557 F. App'x at 853. In addressing the First Circuit law that the lower court applied,
the Eleventh Circuit held that it was error for the district court to remand for a consultative

evaluation in a case that involved minimal impairment, finding that Manso-Pizarro had been

applied incorrectly. Castle, 557 F. App!x at 853. In contrast to Plaintiffs contention, Castle
did not hold that Manso-Pizarro is binding, only that the lower court applied it incorrectly.
And in contrast to Castle, a consultative examination actually occurred here by Dr. House

and in fact, lends support to the ALJ's decision.
The Eleventh Circuit's decision in Green, 223 F. App'x at 923, also contradicts any

assertion that First Circuit law applies because it involved a case where the only physicianassessed RFC was discredited by the ALJ. The Eleventh Circuit upheld the decision by the
ALJ because the ALJ must determine a claimant's RFC and it is the claimant's burden to

prove disability through step four. Id.

Even if Manso-Pizarro were binding law, it does not support Plaintiffs contentions.
76 F.3d at 17. Manso-Pizarro involved a case with no analysis of the claimant's functional

capacity by an expert. L± Manso-Pizarro did not touch on the ability of an ALJ to give less

weight to a functional capacity assessment by an expert when it is not supported by the
record, and fashion a more appropriate RFC, the determination of which is left to the ALJ by

the Commissioner's regulations. See 20 C.F.R. § 404.1527(d)(2). The ALJ here had the
benefit of an RFC assessed by two state medical consultants and objective findings from a

consultative examiner. The dearth of evidence present in Manso-Pizarro does not exist here

because of Dr. House's examination and the opinions of the two state consultants.
Plaintiff also argues that the RFC is based on conjecture because the ALJ could not

have known how the medical experts would have assessed the information concerning
remission. (Doc. no. 22, p. 11.) Thus, Plaintiff contends the ALJ should have requested

more evidence from the medical experts with the benefit of the information concerning
Plaintiffs remission. (Id.) Plaintiffs argument is in error because it places the burden upon
the ALJ to prove Plaintiff is not disabled through step three. See Green., 223 F. App'x at

923. If Plaintiff wanted evidence showing she was capable of only performing light work

supported by all of the medical evidence, she could have obtained medical source statements
and submitted them. Further, Plaintiff was represented by counsel so this is not a case where

the ALJ has a special duty to develop a full and fair record. Here, the ALJ assessed all of the
evidence, including the expert opinions, and found it only supported an RFC for medium
work. This conclusion was supported by substantial evidence.

Finally, Plaintiff argues, for the first time, that the ALJ erred in not assigning any

specific weight to Dr. House's examination. It falls within the Court's discretion to consider

arguments raised within objections for the first time. Williams v. McNeil 557 F.3d 1287,
1292 (11th Cir. 2009). However, this argument is without merit. Any such error by the ALJ
was harmless because it is abundantly clear that significant weight was assigned to Dr.

House's opinion while the state consultants were given less weight. See R. at 490-91;
Caldwell v. Barnhart 261 F. App!x 188, 191 (11th Cir. 2008) (applying harmless error to

ALJ's failure to specify weight). Dr. House's examination was largely normal, and the ALJ

stated it supported a finding Plaintiff retained the capacity to perform substantial work. R. at

491. This is congruent with the ALJ's ultimate conclusion Plaintiff could perform medium
work and was not disabled.

Accordingly, Plaintiff contention that the ALJ erred in

assigning any particular weight to Dr. House's opinion does not provide a basis for remand.
Accordingly, the Court OVERRULES Plaintiffs objections, ADOPTS the Report

and Recommendation of the Magistrate Judge as its opinion, DENIES Plaintiffs motion for
oral argument (doc. no. 23), AFFIRMS the Acting Commissioner's final decision, CLOSES
this civil action, and DIRECTS the Clerk to enter final judgment in favor of the Acting
Commissioner.

SO ORDERED this Ik day of March, 2016, at Augusta, Georgia.

HONORABLE J. RANDAL HALL

UNITED SJATES DISTRICT JUDGE
DISTRICT OF GEORGIA