Norman v. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER denying 13 Motion for Summary Judgment. Plaintiff's appeal is dismissed with prejudice. See Order for more details. Signed by Magistrate Judge Linda R. Anderson on 9/27/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
RILEY ANN NORMAN1
V.

PLAINTIFF
CIVIL ACTION NO. 1:16CV152 LRA

NANCY BERRYHILL,
COMMISISONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINION AND ORDER
Riley Ann Norman appeals the final decision denying her second application for
supplemental security income (SSI). The Commissioner requests an order pursuant to 42
U.S.C. § 405(g), affirming the final decision of the Administrative Law Judge. Having
carefully considered the hearing transcript, the medical records in evidence, and all the
applicable law, the Court finds that the decision should be affirmed.
On May 6, 2014, Plaintiff filed the instant application for SSI alleging a disability
onset date of January 26, 2013, due to anxiety, arm impingements, swelling in her legs
and ankles, problems with her right foot, and pain in her shoulder, elbow, neck, and right
ankle. She was 49 years old on her application date, and has a GED with past relevant
work experience as a housekeeper, a shuttle-bus driver, and assembly worker. Following
agency denials of her application, an Administrative Law Judge (“ALJ”) rendered an
unfavorable decision finding that she had not established a disability within the meaning

1
The parties are hereby advised that the Court is in receipt of emails from an individual named Anna
White, who claims to know the Plaintiff. These emails were sent to the District Judge originally assigned to this
case, and then forwarded to the undersigned. It is well-established that evidence outside the administrative record is
generally inadmissible, and this Court’s judicial review is limited to the administrative record filed by the
Commissioner. The Court has not considered these emails in reaching its decision, but directs the clerk to file them
with restricted access.

of the Social Security Act. The Appeals Council denied Plaintiff’s request for review.
She now appeals that decision. A review of the record reveals that Plaintiff filed a prior
application which was denied by the Appeals Council on March 27, 2014. No appeal
was taken from that decision making it administratively final. In this regard, the ALJ
noted that records from the prior period of adjudication were reviewed but not
considered.
At step one of the five-step sequential evaluation,2 the ALJ found that Plaintiff had
not engaged in substantial gainful activity since May 6, 2014, the application date. At
steps two and three, the ALJ found that Plaintiff’s degenerative disc disease;
osteoarthritis; mild degenerative joint disease of shoulders with impingement syndrome;
obesity; lower-extremity edema; anxiety disorder; and pain disorder were severe, but they
did not meet or medically equal any listing. At step four, the ALJ found that Plaintiff had
the residual functional capacity to perform light work with the following exceptions:
No exposure to unprotected heights or hazardous machinery; and occasional
overhead reaching. She can perform simple, routine tasks; with no direct
interaction with the public. She can work in close proximity to others, but
she must work independently, not in a team.3

2

Under C.F.R. ' 404.1520, the steps of the sequential evaluation are: (1) Is plaintiff engaged in
substantial gainful activity? (2) Does plaintiff have a severe impairment? (3) Does plaintiff=s
impairment(s) (or combination thereof) meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? (4) Can plaintiff return to prior relevant work? (5) Is there any work in the national
economy that plaintiff can perform? See also McQueen v. Apfel, 168 F.3d 152,154 (5th Cir. 1999).
3

ECF No. 9, p. 19.

2

Based on vocational expert testimony, the ALJ concluded that given Plaintiff’s age,
education, work experience, and residual functional capacity, she could perform work as
a housekeeper, cafeteria attendant, and mail clerk.
Standard of Review
Judicial review in social security appeals is limited to two basic inquiries: A(1)
whether there is substantial evidence in the record to support the [ALJ’s] decision; and (2)
whether the decision comports with relevant legal standards.” Brock v. Chater, 84 F.3d
726, 728 (5th Cir. 1996) (citing Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991)).
Evidence is substantial if it is Arelevant and sufficient for a reasonable mind to accept as
adequate to support a conclusion; it must be more than a scintilla, but it need not be a
preponderance.@ Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting Anthony v.
Sullivan, 954 F.2d at 295 (5th Cir. 1992)). This Court may not re-weigh the evidence, try
the case de novo, or substitute its judgment for that of the ALJ, even if it finds evidence
that preponderates against the ALJ’s decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th
Cir. 1994).
DISCUSSION
Plaintiff appeals the ALJ’s denial of her claim for one central reason: the ALJ
failed to provide good cause for rejecting her treating physician’s opinion. Specifically,
she maintains that the ALJ’s reasons for rejecting the opinion were not supported by
substantial evidence, and remand is warranted because her treating physician indicated
that she was disabled.

3

Plaintiff testified at the administrative hearing that a combination of severe
physical and mental impairments prevents her from performing any employment on a
continuing basis. Chronic edema requires her to elevate her legs and a “roll-away” right
ankle causes her to frequently fall. She has back and neck pain, migraine headaches, and
limited use of her upper extremities. She has worn a sling on her right arm every day for
the past three years, and her left arm has worsened as a result of overuse. She has taken
narcotic pain medication for years but testified that she recently stopped seeing her pain
management specialist after he declined to pre-authorize her medications; she has
continued to take antidepressants as needed for anxiety and depression, however. She
has Medicaid and United Healthcare, but testified that lapses in coverage have affected
her ability to seek treatment. Plaintiff asserts that her limitations prevent her from
concentrating, standing or walking longer than 15-20 minutes, or from lifting her arms
over her head.4
1.
In evaluating the evidence, the ALJ found that Plaintiff=s medically determinable
impairments could reasonably be expected to produce some of her alleged symptoms, but
her testimony regarding the intensity, persistence, and limiting effects were not fully
credible. The ALJ concluded that Plaintiff has the residual functional capacity to
physically perform light work limited to occasional overheard reaching and no exposure
to unprotected heights. As her first point of error, Plaintiff asserts that this determination

4

ECF No. 9, pp. 35-54.

4

conflicts with the opinion of her treating physician, Dr. Bita Ghaffari, who found
Plaintiff’s limitations would effectively preclude her from performing even sedentary
work.
Dr. Ghaffari opined that Plaintiff could not, inter alia, sit, stand, or walk for longer
than 15-20 minutes at a time; lift or carry more than 10 pounds; bend more than 20%; or
use either arm for a full workday. The ALJ concluded that Dr. Ghaffari’s opinion was
inconsistent with the evidence as a whole and her own treatment notes, showing no
edema and a low pain rating. Plaintiff notes that Dr. Ghaffari found trace edema on one
occasion, but she acknowledges in her memorandum brief that Dr. Ghaffari did not treat
her for the physical impairments she alleges are disabling. Records show that PainManagement Specialist, Dr. Fanni Manney, was Plaintiff’s primary provider until he
declined to pre-authorize her prescriptions, while Dr. Ghaffari, her family practitioner,
primarily treated her for anxiety, insomnia, and minor ailments from 2012-2015. Given
their extensive treating relationship however, Plaintiff argues that Dr. Ghaffari could
“make an informed assessment of [her] overall physical limitations” and her opinion is
entitled to great weight.5
In support, Plaintiff relies heavily on medical records generated prior to the
current application which detail her treatment history with Dr. Manney. Those records
show that Plaintiff had a slow gait and subjective reports of pain as high as 10 out of 10
on multiple occasions. As the ALJ notes, by her last visit of record with Dr. Manney on

5

ECF No. 14, p. 13.

5

January 22, 2015, Plaintiff reported that her pain had improved, decreasing as much as
70% following a change in medication.
A review of medical records generated by the medical sources, including Dr.
Ghaffari, does not support the degree of limitations that Dr. Ghaffari assigned. In a visit
with Dr. Ghaffari on January 14, 2015, for example, Plaintiff had some edema, but rated
her pain as a 4 or 5 on a scale of 1 to 10. Plaintiff went to the Gulfport Memorial
Hospital emergency room on March 18, 2015, complaining of shoulder and ankle pain
and fell in the process of getting discharged. She was diagnosed with a shoulder sprain
and instructed to take over-the-counter medication.6 The next day, Plaintiff went to a
different emergency room (Hancock Medical Center) to request prescription refills for
medications that were no longer being prescribed by Dr. Manney, but records show she
left before triage. In the following weeks, while Plaintiff continued to complain of
shoulder pain, examination findings showed a decreased range of motion in some joints,
and x-rays revealed mild scoliosis and degenerative changes, but she otherwise had
normal musculoskeletal findings. In April 2015, Dr. Letort, a treating neurologist, found
some antalgic weakness in Plaintiff’s shoulders, but full range of motion in all four
extremities and a normal gait. In August 2015, Dr. Cobb, a consultative examiner,
reported that Plaintiff had edema and a mild limp but ambulated without assistance. She
had 4/5 strength in her shoulders; full strength in the remainder of her upper extremities;

6

There appear to be conflicting accounts as to what caused Plaintiff to fall. One record notation
indicates that she said her right leg gave out, while another notation indicates that Plaintiff accused the
hospital staff member who pushed her wheelchair during discharge of causing her to fall. ECF No. 9, pp.
462-77.

6

and, tenderness in her right ankle but full range of motion. The ALJ weighed all of this
evidence against the limitations assigned by Dr. Ghaffari.7
Generally, the opinion and diagnosis of a treating physician should be given
considerable weight in determining disability. But the treating physician=s rule is “not an
ironclad rule.” Garcia v. Colvin, 622 F. App=x 405, 410 (5th Cir. 2015). “[S]uch
opinions can be disregarded if they are ‘brief and conclusory, not supported by medically
acceptable clinical diagnostic techniques, or otherwise unsupported by the evidence.’” Id.
(quoting Perez v. Barnhart, 415 F.3d 457, 466 (5th Cir. 2005)).
Plaintiff contends that the ALJ’s decision not to credit Dr. Ghaffari was not
supported by substantial evidence. But she does not point to any evidence supporting the
limitations assigned by Dr. Ghaffari. The ALJ did not err in giving more weight to the
board-certified treating neurologist than to Dr. Ghaffari, who is not a specialist in this
area. See 20 C.F.R. § 404. 1527(d)(5). Nor did she err in assigning more weight to the
diagnostic evidence than to Plaintiff’s subjective complaints. The ALJ did not discount
favorable evidence either. She repeatedly acknowledged that medical records
documented Plaintiff’s complaints, diagnoses, and treatments, including a slowed,
antalgic gait and reduced range of motion in her arms. But the ALJ reasonably concluded
that Plaintiff=s impairments were “amenable to appropriate medical treatment,” and thus
not as severe as alleged. A “medical condition that can reasonably be remedied either by

7

ECF No. 9, pp. 379-410, 435-460, 480-516.

7

surgery, treatment, or medication is not disabling.” Lovelace v. Bowen, 813 F.2d 55, 59
(5th Cir. 1987).
In assessing the degree to which Plaintiff’s physical impairments affect her
residual functional capacity, the ALJ made the following observations:
[A] careful review of the overall evidence or record reveals some normal xrays and a multitude of relatively normal examination findings, including a
normal gait on several occasions, normal range of motion in her extremities
on some occasions, only slightly reduced shoulder strength, and normal
grip strength in her hands. Finally, the record includes the claimant’s
reported activities and abilities, which further undermine the severity of her
allegations, and include preparing simple meals, performing household
chores, driving, reading, photography, parenting teenagers, and exercising
occasionally.
Accordingly, the aforementioned objective findings, including the
multitude of relatively normal examination findings, as well as the
claimant’s admitted activities indicate that the claimant’s symptomology
resulting from degenerative disc disease, osteoarthritis, degenerative joint
disease, obesity, and lower-extremity edema are not disabling. However,
claimant’s symptomology can reasonably be expected to cause some
limitations to the claimant’s ability to function. The limitation to the light
exertional level accommodates her degenerative disc disease, osteoarthritis
and degenerative joint disease of the shoulders, obesity, and lowerextremity edema. The limitation to occasionally reaching overhead further
accommodates these musculoskeletal impairments, specifically antalgic
weakness in the shoulders, despite 4 to 5 of 5 motor strength and ability to
reach three-fourths of normal overhead, reach behind to the mid lumbar
area, and reach across to the opposite shoulder. The preclusion against
exposure to unprotected heights and hazardous machinery accommodates
the claimant’s reported falls, as well as potential for medication side
effects.8
Substantial evidence supports the ALJ’s findings. It is the sole responsibility of the ALJ
to interpret the medical evidence to determine a claimant's residual functional capacity

8

ECF No. 9, p. 23.

8

for work. Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012). There is no requirement
to present limitations that are not borne out by the record.
The ALJ was within her discretion to find that Dr. Ghaffari’s conclusion that
Plaintiff was incapable of performing even a reduced range of sedentary work did not
outweigh the other substantial evidence supporting a finding of no disability. The ALJ's
analysis of the medical opinions was thorough and accurate, and her findings regarding
the weight and interpretation of the evidence are substantially supported by the record.
2.
Plaintiff asserts that the ALJ also erred in failing to accept the mental limitations
assigned by Dr. Ghaffari. In weighing the evidence, the ALJ concluded that Plaintiff had
the mental residual functional capacity to perform simple, routine tasks, so long as she
works independently and has no direct interaction with the public. Plaintiff submits that
these limitations conflict with Dr. Ghaffari’s opinion that she has “marked” limitation in
dealing with work-related stress. “The interpretation of an expert's opinion is committed
to the discretion of the ALJ, however.” Smith v. Chater, 68 F.3d 471 (5th Cir. 1995). Dr.
Ghaffari’s opinion does not proscribe Plaintiff from fulfilling the ALJ’s residual
functional capacity.
The ALJ explained that she gave only partial weight to Dr. Ghaffari’s assessment
because the degree of limitation assigned was inconsistent with her treatment notes, the
examinations of other physicians, the absence of mental health treatment, and Plaintiff’s
daily activities, which include preparing meals, performing household chores, driving,
homeschooling her teenage daughter, reading, photography, and handling her own
9

finances. While Dr. Ghaffari’s records document agitation, anxiety, and pressured
speech at times, Plaintiff concedes that other providers did not make similar observations.
Multiple records during the period of adjudication revealed she had a pleasant and
cheerful affect, alertness and orientation, normal memory and concentration, and an
appropriate mood. The ALJ did not discount Dr. Ghaffari’s observations entirely,
however. She noted that there was record evidence of irritability, anger, and “socially
inappropriate drug-seeking behavior.” 9 A consulting psychological examiner also opined
that Plaintiff had a poor ability to behave in an emotionally stable manner and
demonstrate reliability, but as noted by the ALJ, the examiner still found Plaintiff had the
mental capacity to perform routine, repetitive tasks; to adequately interact with coworkers
and receive supervision; and, to have fair attention and concentration.10
The ALJ found this to be consistent with the overall evidence of record and
considered it in conjunction with Plaintiff’s daily activities and the absence of
“consistent, ongoing treatment from a mental health specialist despite having Medicaid
during the period of adjudication.” Plaintiff’s only apparent visit to a mental health
specialist was in May 2015. The specialist reported that she could not make any
conclusions about Plaintiff’s mental health based on their brief meeting, and noted that
Plaintiff did not reschedule or follow-up. While Plaintiff testified at the administrative
hearing that she recalled seeing another psychologist or psychiatrist every two weeks, she
could not recall the doctor’s name or the name of the clinic. A claimant’s failure to seek
9

ECF No. 9, pp. 462-477.

10

ECF No. 9, pp. 13, 557-562.

10

treatment is a relevant factor to consider in determining the severity of an impairment,
and may be used in conjunction with the claimant’s daily activities and medical reports to
discount complaints of disabling pain or other limitations. Doss v. Barnhart, 137 F.
App'x 689, 690 (5th Cir. 2005); Anthony, 954 F.2d at 295; Griego v. Sullivan, 940 F.2d
942, 945 (5th Cir. 1991); Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990).11
Plaintiff has failed to establish that her impairments impact her ability to perform
work-related activities beyond the limitations indicated in the ALJ=s residual functional
capacity assessment. While her mental impairments may impose some difficulties, they
were no more than moderate. Substantial evidence supports the ALJ’s finding that
Plaintiff could perform light unskilled work subject to the limitations of her residual
functional capacity.
Conclusion
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff=s Motion for
Summary Judgment is denied and her appeal is dismissed with prejudice. A Final
Judgment in favor of the Commissioner shall be entered.
SO ORDERED on September 27, 2017.

s/ Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE

11

Id. at 24, 44, 478.

11