Brown v. Astrue
Filing
20
MEMORANDUM AND ORDER regarding Complaint 1 filed by Harry J. Brown. For the reasons explained, I find the ALJ's decision is supported by substantial evidence on the record as a whole and is not contrary to law. IT IS ORDERED that the decision of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HARRY J. BROWN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
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8:12CV411
MEMORANDUM
AND ORDER
In this social security appeal, plaintiff Harry J. Brown (“Brown”) argues that
the Commissioner of Social Security committed reversible error in determining that
he is not entitled to disability insurance benefits. For the reasons discussed below, the
Commissioner’s decision is affirmed.
I. BACKGROUND
On May 26, 2009, Brown filed an application for disability insurance benefits.
(Tr. 13, 106-07.) In his application, Brown alleged that he has been disabled since
January 16, 2007. (Tr. 13.) Brown’s application was denied initially and on
reconsideration. (Id.) On August 4, 2011, an administrative law judge (“ALJ”) issued
a decision finding that Brown was not disabled under sections 216(i), 223(d) and
1614(a)(3)(A) of the Social Security Act. (Tr. 14-29.) In her decision, the ALJ
followed the five-step sequential analysis prescribed by the Social Security
Regulations to evaluate Brown’s disability claim.1 See 20 C.F.R. §§ 404.1520,
416.920. The ALJ found as follows:
1.
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2010.
2.
The claimant has not engaged in substantial gainful activity since
January 16, 2007, the alleged onset date (20 CFR 404.1571 et seq.
and 416.871 et seq.).
3.
The claimant has the following severe impairments: mild to
moderate degenerative joint disease of the cervical spine; chronic
neck, shoulder, low back and knee pain; bilateral carpal tunnel
syndrome; cognitive disorder status-post left frontal contusion,
mild to moderate after traumatic brain injury, and obesity (20 CFR
202.1520(c) and 416.920(c)).
1
The Social Security Administration uses a five-step process to determine
whether a claimant is disabled. These steps are described as follows:
At the first step, the claimant must establish that he has not engaged in
substantial gainful activity. The second step requires that the claimant
prove he has a severe impairment that significantly limits his physical or
mental ability to perform basic work activities. If, at the third step, the
claimant shows that his impairment meets or equals a presumptively
disabling impairment listed in the regulations, the analysis stops and the
claimant is automatically found disabled and is entitled to benefits. If the
claimant cannot carry this burden, however, step four requires that the
claimant prove he lacks the [residual functional capacity] to perform his
past relevant work. Finally, if the claimant establishes that he cannot
perform his past relevant work, the burden shifts to the Commissioner at
the fifth step to prove that there are other jobs in the national economy
that the claimant can perform.
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006).
2
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals 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 that he can only occasionally climb and crawl
and must avoid concentrated exposure to vibrations and hazards.
Furthermore, he is limited to work that requires him only to
understand, remember and carry out simple instructions, and
perform routine tasks.
6.
The claimant is capable of performing past relevant work as a
cashier and tree trimmer. This work does not require the
performance of work related activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565 and 416.965).
7.
The claimant has not been under a disability as defined in the
Social Security Act, from January 16, 2007, through the date of
this decision (20 CFR 404.1520(f) and 416.920(f)).
(Tr. 15-28.) After the ALJ issued her decision, Brown filed a request for a review
with the Appeals Council of the Social Security Administration. (Tr. 7-8.) On
October 11, 2012, the Appeals Council denied Brown’s request for review. (Tr. 1-3.)
Thus, the ALJ’s decision stands as the final decision of the Commissioner of Social
Security.
II. STANDARD OF REVIEW
A denial of benefits by the Commissioner is reviewed to determine whether
the denial is supported by substantial evidence on the record as a whole. Hogan v.
Apfel, 239 F.3d 958, 960 (8th Cir. 2001). “Substantial evidence” is less than a
3
preponderance, but enough that a reasonable mind would find it adequate to support
the Commissioner’s conclusion. Id. at 960-61; Prosch v. Apfel, 201 F.3d 1010, 1012
(8th Cir. 2000). Evidence that both supports and detracts from the Commissioner’s
decision must be considered, but the decision may not be reversed merely because
substantial evidence supports a contrary outcome. See Moad v. Massanari, 260 F.3d
887, 890 (8th Cir. 2001).
This court must also review the decision of the Commissioner to decide
whether the proper legal standard was applied in reaching the result. Smith v.
Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). Issues of law are reviewed de novo.
Olson v. Apfel, 170 F.3d 820, 822 (8th Cir. 1999); Boock v. Shalala, 48 F.3d 348, 351
n.2 (8th Cir. 1995).
III. DISCUSSION
A.
Relevant Medical History and Opinions
On March 5, 2005, Brown was involved in a motorcycle crash. (Tr. 305-06.)
During the crash, Brown was T-boned by two vehicles and thrown from his
motorcycle. (Id.) Brown sustained a closed brain injury, a scapular fracture, a
pulmonary contusion, and a knee avulsion. (Id.) He was hospitalized until March 24,
2005, at which time he was transferred to a rehabilitation facility. (Tr. 18, 305-06,
470.) On April 13, 2005, Brown was discharged and began outpatient physical
therapy, occupational therapy, and speech therapy. (Tr. 18, 444, 470-71.)
On May 10, 2005, Dr. Renee Hudson (“Hudson”) performed a
neuropsychological evaluation on Brown. (Tr. 470-74.) During her evaluation,
Brown denied alcohol or marijuana use and reported, among other things, that he
graduated from high school, had no history of learning disability, and “no difficulty
with his memory.” (Tr. 470-71.) After conducting numerous tests, Dr. Hudson
concluded Brown had a “level of intellectual functioning . . . at the lower end of the
4
Average range to Average.” (Tr. 471-72.) She determined that Brown was borderline
impaired in his auditory divided attention and ability to use external feedback to be
flexible in a problem-solving approach. (Tr. 472.) He was also borderline impaired
in his fine motor speed and coordination in his nondominant right hand. (Id.) She
concluded that Brown’s cognitive functioning was moderately to severely impaired
in several areas, including his single-word reading skills, auditory memory on a listlearning task, recall on an initial learning trial, and copying skills when asked to copy
a complex figure. (Tr. 473.)
Overall, Hudson found Brown to demonstrate some deficit in executive
functioning, particularly with impulse control, and mild residual memory difficulty.
(Id.) She diagnosed him with “Cognitive Disorder, Not Otherwise Specified,
secondary to acquired brain injury.” (Id.) She believed that Brown possessed the
basic cognitive abilities to make reasonable and informed decisions regarding
personal, financial, and medical issues, and recommended that he could return to work
as a cashier in a gas station. (Id.) Because of his impulsivity, Hudson recommended
that Brown “refrain from driving for at least a few more weeks.” (Id.) She further
recommended that his neuropsychology be reassessed in six months and strongly
discouraged him from working as a mechanic. (Id.)
On November 16, 2007, Dr. Jan Golnick (“Golnick”), a neurologist, examined
Brown. (Tr. 475-83.) During her examination, Golnick performed a Barrow
Neurological Institute (“BNI”) Screen for Higher Cerebral Function. (Tr. 479.) The
BNI results showed that Brown’s attention and concentration were low, but his affect
orientation and memory scores were normal. (Id.) Brown’s overall BNI score placed
him in the “3.2 percentile for his age group.” (Id.) Golnick also indicated that there
was a positive Romberg test because Brown swayed with his eyes closed.2 (Tr. 480.)
2
In a Romberg test, the subject, with feet approximated, “stands with eyes open
and then closed; if closing the eyes increases the unsteadiness, a loss of proprioceptive
control is indicated, and the sign is positive.” STEADMAN’S MEDICAL DICTIONARY
5
Golnick concluded Brown had sustained a significant posttraumatic brain injury and
had a deficit to the left hemisphere of his brain. (Tr. 481.) She believed he was
unable to work as a car mechanic and she was afraid he would “be able to perform
only a non-skilled labor type job with light duties only.” (Id.) She recommended
assistance from “Vocational Rehabilitation Services” to help him find suitable
employment. (Id.)
On October 21, 2008, Dr. Joseph Rizzo (“Rizzo”) conducted a psychological
consultative examination of Brown. (Tr. 486-91.) During the examination, Brown
reported that he nearly graduated high school, was in special education for various
classes, frequently forgets where he is going, could not keep things in his mind long
enough to successfully work through them, and drinks one half-pint of cognac every
few days. (Tr. 486-87, 490-91.) Rizzo noted that Brown’s reports regarding his
education and alcohol use contradicted his earlier statements to Dr. Hudson. (Tr. 48687.) During the examination, Brown completed a “Wechsler Adult Intelligence Scale
- III Edition” test, which revealed that he was functioning within the “low average
range” of intelligence. (Tr. 487.) Rizzo concluded that Brown’s “cognitive and
memory function” was adequate and that he seemed to be competent to handle his
own funds. (Tr. 491.) Overall, Rizzo stated Brown did “not seem to be able to
function adequately,” but later wrote that Brown’s “situation seems to have improved
since the date of his injury, but is still quite substantial and is functional.” (Id.)
On November 3, 2008, state agency psychologist Dr. Lee Branham
(“Branham”) performed a Mental Residual Functional Capacity Assessment of Brown.
(Tr. 499-518.) In his assessment, Branham concluded that Brown was moderately
limited in his ability to understand and remember detailed instructions, carry out
detailed instructions, maintain concentration for extended periods, and respond
appropriately to changes in the work setting. (Tr. 500-01.) Branham also noted that
1640 (27th ed. 2000).
6
Brown was mildly limited in social functioning, moderately limited in daily living
activities, and moderately limited in maintaining concentration, persistence and pace.
(Tr. 515.) However, Branham specifically concluded that Brown was capable of
handling simple instructions and was otherwise not significantly limited. (Tr. 500-01,
503.) To reach his conclusions, Branham reviewed the opinions of Dr. Hudson, Dr.
Golnick, and Dr. Rizzo. (Tr. 502.)
On August 31, 2009, Dr. Jennifer Lindner (“Lindner”) conducted a
psychological examination of Brown. (Tr. 520-23.) During her examination, Brown
reported that he smoked marijuana 1-2 times a week and had an occasional beer. (Tr.
521.) Lindner found Brown to be “oriented to day, place, time, and person, but not
to date.” (Tr. 521.) She determined Brown was capable of understanding short and
simple instructions, carrying out simple instructions, carrying out instructions under
ordinary supervision, and interacting appropriately with co-workers and supervisors.
(Tr. 522.) However, Lindner concluded Brown had “significant problems with
memory and attention” and was not capable of working without assistance. (Id.)
On October 19, 2009, Dr. Darin E. Jackson (“Jackson”) performed a
consultative evaluation of Brown. (Tr. 545-48.) During the evaluation, Brown
reported he was experiencing chronic pain in his back, right knee, and right shoulder.
(Tr. 547.) Jackson concluded Brown’s pain “may limit his future employment options
to those that do not require much heavy lifting or physical activity.” (Tr. 547-48.)
Jackson also stated that Brown’s past traumatic brain injury had affected his memory
and ability to stay on task, which could also limit his employment options. (Tr. 548.)
Jackson indicated that Brown had “good motor strength throughout and his fine motor
skills are intact.” (Id.) 3
3
The record also contains opinions for state agency physicians regarding
Brown’s physical residual functional capacity. (Tr. 21, 552-565.) The ALJ gave these
opinions “great weight” and Brown does not appear to take issue with this part of the
ALJ’s residual functional capacity assessment. (Tr. 21; Filings 11 and 19.)
7
Between December 2010 and May 2011, Brown attended physical therapy. (Tr.
577-93.) By January 2011, the physical therapist reported that Brown had met nearly
all of his short- and long-term physical therapy goals. (Tr. 588.) In April 2011,
Brown visited the pain clinic to manage cervical neck pain, which he described as
greater than 8 on the Visual Analog Scale of 1-10. (Tr. 571.) During his visit to the
pain clinic, Brown was assessed with carpal tunnel syndrome bilateral. (Tr. 587.)
With regard to non-medical opinions, Brown’s wife, Jessica Brown, submitted
two disability reports on Brown’s behalf. (Tr. 281-92.) In the reports, Jessica stated
that Brown could not take care of himself and that she had to “take care of
everything.” (Id.) She also reported that Brown lacked personal hygiene, could not
fill out paperwork due to limitations in his reading and writing skills, and could not
shop for himself. (Id.)
B.
Hearing Testimony
On August 4, 2011, the ALJ held a hearing and Brown testified. (Tr. 45-103.)
During his testimony, Brown stated that he smoked two small cigars a day, and “drank
a beer once every two months at the most.” (Tr. 58.) Brown described his daily
activities, which included taking care of his dogs, playing video games, and taking his
children to the pool. (Tr. 62-64, 66-67.) Brown stated he occasionally went to the
grocery store, but needed someone to accompany him to help him read the list. (Tr.
64-65.) Brown said he drives to his daughter’s baseball games in the summer, parks
as close as he can, and cheers from the vehicle. (Tr. 69.) He also stated that he
occasionally rides his motorcycle. (Tr. 67.)
Jessica also testified at the hearing. (Tr. 81-89.) During her testimony, Jessica
said that she treated her husband “just like a child.” (Tr. 84.) She said she helped him
bathe and, because of his poor balance, performed all of his shaving. (Id.) With
regard to household tasks, Jessica stated Brown could “help carry up laundry, [and]
8
carry in groceries.” (Tr. 83.) She could send him on errands to Walgreen’s or the gas
station, but only if he was accompanied by one of his daughters. (Tr. 86-88.)
After Jessica testified, the ALJ asked a vocational expert to consider a
hypothetical claimant of Brown’s age, educational level, and work experience. (Tr.
89, 91.) This individual was “in the medium exceptional level and may occasionally
climb and crawl and must avoid concentrated exposure to vibrations and hazards.”
(Tr. 91.) The ALJ asked if such an individual could perform Brown’s past relevant
work or other jobs. (Id.) The vocational expert testified the hypothetical individual
could perform Brown’s past work (i.e. as a mechanic, cashier, or tree trimmer), as well
as medium unskilled labor as a janitor, laundry worker, and kitchen helper. (Tr. 8992.)
Next, the ALJ asked the vocational expert to consider an individual with the
same restrictions as her first hypothetical claimant, but to add that the individual is
moderately impaired in his ability to understand, remember, and carry out detailed
instructions. (Tr. 92-93.) The ALJ asked if this additional consideration would affect
the vocational expert’s answer. (Tr. 93-95.) The vocational expert testified that the
individual in the second hypothetical would not be able to work as an auto mechanic,
but would still be able to work as a cashier or a tree trimmer. (Id.)
C.
Brown’s Arguments on Appeal
In his appeal brief, Brown argues that the ALJ’s opinion is not supported by
substantial evidence because (1) the ALJ’s residual functional capacity assessment
and hypothetical question do not precisely set forth his credible limitations, (2) the
ALJ failed to adequately evaluate the work-related limitations imposed by examining
psychologists Dr. Rizzo and Dr. Lindner, (3) the ALJ erred in relying on the opinions
of the non-examining state agency psychological consultant, and (4) the ALJ failed
to fully and fairly develop the record. (Filing 11 at CM/ECF pp. 15-27; Filing 19 at
CM/ECF pp. 2-7.) The Commissioner contends that the ALJ’s decision is supported
9
by substantial evidence. (Filing 17 at CM/ECF pp. 9-17.)
Commissioner.
1.
I agree with the
Residual Functional Capacity Omits Credible Limitations
First, Brown argues that despite giving Dr. Hudson’s opinion “great weight,”
the ALJ’s assessment of Brown’s mental residual functional capacity and hypothetical
question do not resemble Dr. Hudson’s opinion. (Filing 11 at CM/ECF p. 15.) More
specifically, Brown argues that the ALJ did not include limitations that accurately
reflected Dr. Hudson’s conclusions regarding his mental functioning and ability to use
his wrists and hands. (Id. at CM/ECF pp. 15-18.)
“ALJs bear the primary responsibility for assessing a claimant’s residual
functional capacity based on all relevant evidence.” Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir. 2010). As discussed above, Hudson determined that Brown was
borderline impaired in his auditory divided attention and ability to use external
feedback to be flexible in a problem-solving approach. (Tr. 472.) She also found
Brown to be borderline impaired in his fine motor speed and coordination in his
nondominant right hand. (Id.) She concluded that Brown’s cognitive functioning was
moderately to severely impaired in his single-word reading skills, auditory memory
on a list-learning task, recall on an initial learning trial, and copying skills when asked
to copy a complex figure. (Tr. 473.) Because of his impulsivity, Hudson
recommended that Brown “refrain from driving for at least a few more weeks.” (Id.)
Overall, Hudson found Brown to demonstrate some deficit in executive functioning,
particularly with impulse control, and mild residual memory difficulty. (Id.)
In her residual functional capacity determination, the ALJ concluded Brown
had the ability to perform medium work, could only occasionally climb and crawl,
must avoid concentrated exposure to vibrations and hazards, and could only perform
work that required him to understand, remember, and carry out simple instructions,
10
and perform routine tasks. (Tr. 18.) In his Brief, Brown admits that the ALJ
“arguable addressed” his divided attention and problem-solving limitations by finding
that he was limited to “routine tasks.” (Filing 11 at CM/ECF p. 17.) However, he
insists that the ALJ did not include a limitation to address his fine motor speed and
coordination limitations in the right hand. (Id.) He further asserts that this limitation
is supported by his “bilateral carpal tunnel syndrome” diagnosis. (Id.)
Brown appears to have overlooked the details within the ALJ’s opinion. In
explaining her residual functional capacity determination, the ALJ stated Brown
“should avoid concentrated exposure to vibrations due to his carpal tunnel syndrome.”
(Tr. 21 (emphasis added).) The ALJ also specifically includes this limitation in her
residual functional capacity determination, stating that Brown must avoid
“concentrated exposure to vibrations and hazards.” (Tr. 18.) Simply put, Brown’s
argument that the ALJ failed to include “any limitations” on his ability to use his
wrists and hands lacks merit.
Toward the end of his first argument, Brown adds a conclusory sentence stating
that the ALJ “failed to impose any limitations on [his] exposure to hazards, impulsive
behavior, need to drive, and the like.” (Filing 11 at CM/ECF p. 18.) Again, the ALJ’s
residual functional capacity determination specifically includes a limitation that
Brown avoid “concentrated exposure to . . . hazards.” (Tr. 18 (emphasis added).)
Moreover, the record as a whole supports the ALJ’s residual functional capacity
determination with regard to Brown’s ability to drive. Dr. Hudson recommended in
March 2005 that Brown “refrain from driving for at least a few more weeks,” and
hearing testimony from August 2011 shows that Brown currently drives to his
daughters’ games and occasionally rides his motorcycle. (Tr. 473 (emphasis added);
Tr. 67, 69.)
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2.
Discounting Examining Psychologists’ Opinions
Second, Brown argues the ALJ failed to adequately evaluate the work-related
limitations imposed by Dr. Rizzo and Dr. Lindner. (Filing 11 at CM/ECF pp. 18-22.)
More specifically, Brown argues that the ALJ failed to provide good reasons for not
giving Dr. Rizzo’s and Dr. Lindner’s opinions “significant weight.” (Id.)
“It is the ALJ’s function to resolve conflicts among the various treating and
examining physicians.” Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (internal
quotation marks omitted). While “a treating physician’s opinion is generally entitled
to substantial weight, that opinion does not ‘automatically control’ in the face of other
credible evidence on the record that detracts from that opinion.” Heino v. Astrue, 578
F.3d 873, 880 (8th Cir. 2009); see also Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.
2005) (holding that a treating physician’s opinion is given controlling weight “if it is
well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with other substantial evidence”). Indeed, “[a]n ALJ may
discount or even disregard the opinion of a treating physician where other medical
assessments are supported by better or more thorough medical evidence, or where a
treating physician renders inconsistent opinions that undermine the credibility of such
opinions.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (internal quotation
marks omitted). However, “[w]hen an ALJ discounts a treating physician’s opinion
he should give ‘good reasons’ for doing so.” Davidson v. Astrue, 501 F.3d 987, 990
(8th Cir. 2007)
In determining Brown’s residual functional capacity, the ALJ reviewed, among
other things, opinions from four examining mental-health professionals: Dr. Hudson,
Dr. Golnik, Dr. Rizzo, and Dr. Lindner. (Tr. 22-26.) After reviewing these opinions,
the ALJ gave “great weight” to Dr. Hudson’s opinion, “some weight” to Dr. Golnik’s
opinion, and “little weight” to Dr. Rizzo and Dr. Lindner’s opinions. (Tr. 21, 25-26.)
12
With regard to Dr. Rizzo’s opinion, the ALJ gave it “little weight” for the following
reasons:
First, Dr. Rizzo’s report contains inconsistencies and his opinion is
accordingly rendered less persuasive. His own test results showed that
the claimant was generally functioning in the average range. Further,
Dr. Rizzo stated at the conclusion of his report that the claimant was
improved since his injury and is “functional”, which is in direct conflict
with his statement that the claimant “does not seem to be able to
function adequately.” Second, Dr. Rizzo’s report appears to be based
on inconsistent reports by the claimant. For example, the claimant told
Dr. Rizzo that he nearly graduated high school and that he was in
special education while in school, which is inconsistent with his
previous reports to Dr. Hudson. The claimant also told Dr. Rizzo that
he was drinking one half pint of cognac every several days, when he had
previously denied any use of alcohol. He also reported significant
problems with his memory, yet did not acknowledge the need for any
memory devices. Certainly, an opinion based on unreliable reports is
itself unreliable. Dr. Rizzo’s opinion is also vague in that it does not
provide specific functional restrictions.
(Tr. 25-26 (internal citations omitted).) Brown acknowledges that Dr. Rizzo based his
opinion on unreliable reports, and that an opinion based on unreliable reports is
“arguably . . . unreliable.” (Filing 11 at CM/ECF p. 20.) However, Brown argues that
Dr. Rizzo did not blindly accept his reports and that Dr. Rizzo is the expert in this
case, not the ALJ. (Id.) Brown suggests that the Eighth Circuit’s opinion in Flanery
v. Chater, 112 F.3d 346, 350 (8th Cir. 1997), supports his position. (Id.; Filing 19 at
CM/ECF p. 5.)
In Flanery, the Eighth Circuit concluded that an ALJ erred in discounting
medical diagnoses because they were based only on the claimant’s recitation of events
regarding her seizures. 112 F.3d at 350. These seizures were also objectively
witnessed by multiple individuals and the claimant’s testimony was supported by EEG
13
readings. Id. Here, Brown’s alleged disability is related psychological symptoms, not
seizures, and his reports are clearly inconsistent. Indeed, Brown reported that he
graduated high school to Dr. Hudson, but stated he “nearly graduated high school” to
Dr. Rizzo. (Tr. 470, 486.) Brown reported having “no difficulty with his memory”
to Dr. Hudson, but that “he frequently forgets where he is going” and “cannot keep
things in his mind long enough to successfully work through them” to Dr. Rizzo. (Tr.
471, 490-91.) Brown denied using alcohol to Dr. Hudson, but reported drinking a half
pint of cognac every several days to Dr. Rizzo. (Tr. 470, 487.) The ALJ identified
these inconsistent reports, as well as Dr. Rizzo’s own tests, which showed that
Brown’s memory function was in the average range.4 (Tr. 25-26, 490.) Unlike
Flanery, the record in this matter contains sufficient evidence for both the medical
professionals and the ALJ to doubt Brown’s reports. See Flanery, 112 F.3d at 350
(finding “[t]here is nothing in this record to suggest that [claimant’s] medical
professionals should have doubted [claimant’s] word. Her claimed symptoms are
consistent with objective tests (the EEG), the nature of her disorder, and eyewitness
testimony”). The ALJ did not err in concluding that Brown’s reports to Rizzo were
unreliable or in discounting Rizzo’s opinion on that basis.
Brown also argues that the ALJ failed to fully develop the record regarding Dr.
Rizzo’s contradictory statements. (Filing 11 at CM/ECF pp. 20-21.) As discussed
above, Dr. Rizzo stated that Brown’s “situation seems to have improved since the date
of his injury, but is still quite substantial and is functional.” (Tr. 491.) However, Dr.
Rizzo also stated Brown “does not seem to be able to function adequately.” (Id.)
Brown believes that these contradictory statements created ambiguity requiring the
ALJ to recontact Dr. Rizzo for clarification. (Filing 11 at CM/ECF p. 21.) Although
this argument seems misplaced (see infra Part.III.C.4), I will briefly address it here.
4
BNI results from Dr. Golnick’s examination also showed that Brown’s
memory scores were normal. (Tr. 479.)
14
“[S]ocial security hearings are non-adversarial,” and an ALJ has a duty to fully
develop the record. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). However,
an ALJ is not required to “recontact a treating physician whose opinion was inherently
contradictory or unreliable.” Hacker v. Barnhart, 459 F.3d 934, 938 (8th Cir. 2006).
“This is especially true when the ALJ is able to determine from the record whether the
applicant is disabled.” Id.; see also Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir.
2004) (holding that there is no need to recontact a treating physician where the ALJ
can determine from the record whether the applicant is disabled). In this case, the ALJ
gave several reasons, not just contradictory statements, for discounting Dr. Rizzo’s
opinion. In addition, the record as a whole contains ample evidence upon which the
ALJ could make an informed determination on the merits of Brown’s disability claim.
Under these circumstances, the ALJ was under no obligation to recontact Dr. Rizzo
to clarify his contradictory statements.
Turning to why the ALJ discounted Dr. Lindner’s opinion, the ALJ explained:
Like Dr. Rizzo, Dr. Lindner based her opinion on unreliable reports from
the claimant and her report is internally inconsistent. Further, it is not
supported by her own objective findings that the claimant was oriented
to day, place, time, and person or that he displayed concrete reasoning
skills, upbeat mood, and appropriate affect and emotional reactions.
(Tr. 26.) Beyond this explanation, the ALJ does not specifically identify which of
Brown’s reports to Dr. Lindner were unreliable, nor does she specify the internal
inconsistences of Dr. Lindner’s opinion.5 (Id.) However, the ALJ does provide an
explanation of how Dr. Lindner’s opinion is not supported by her own objective
5
I note, however, when the ALJ evaluated Brown’s credibility she did identify
inconsistent statements that Brown made to Dr. Lindner, Dr. Rizzo, and Dr. Hudson
regarding his education level, drug use, and alcohol use. (Tr. 23-24, 470, 486, 490,
520-21.) Again, Brown does not dispute that his reports to the physicians were
unreliable.
15
findings. (Id.) Her explanation is somewhat conclusory, but I find that a reasonable
mind could find it adequate to support the ALJ’s decision to discount Dr. Lindner’s
opinion. Indeed, Dr. Lindner’s conclusion that Brown was not capable of working
without assistance arguably conflicts with her findings that he was oriented to day,
place, time, and person, displayed concrete reasoning skills, displayed upbeat mood,
was capable of understanding short and simple instructions, was capable of carrying
out simple instructions, was capable of carrying out instructions under ordinary
supervision, and was capable of interacting appropriately with co-workers and
supervisors. (Tr. 521-22.) See, e.g., Dickerson v. Apfel, No. 99–3777, 2000 WL
1836769 (8th Cir. 2000) (finding “the ALJ did not err in discounting the assessments
of [claimant’s] treating physician: the ALJ found the assessments internally
inconsistent, and not fully supported by the physician’s own clinical notes and other
objective findings”); Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999) (concluding
treating physician’s opinion was not afforded deference where it was not supported
by his own findings or diagnostic data); Cruze v. Chater, 85 F.3d 1320, 1325 (8th Cir.
1996) (holding, where treating physician’s opinions are themselves inconsistent, they
should be accorded less deference).
In short, the ALJ did not err in discounting Dr. Rizzo’s and Dr. Lindner’s
opinions. The ALJ properly explained the weight she gave to various medical
opinions and gave sufficient reasons for doing so. There is substantial evidence on
the record as a whole that supports the ALJ’s finding and it is consistent with the
regulations and case law.
3.
Reliance Upon a Non-Examining State Agency Psychological
Consultant’s Opinion
Third, Brown argues that the ALJ erred in relying on Dr. Branham’s opinion.
(Filing 11 at CM/ECF pp. 24-25.) Brown asserts there are “numerous” problems with
this opinion, including that he did not evaluate Dr. Lindner’s opinion, only noted that
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Dr. Hudson’s testing “showed some areas of significant cognitive deficit,” and
overlooked or ignored test results from Dr. Golnick. (Id. at CM/ECF p. 24-25; Filing
19 at CM/ECF p. 6.) Although Brown may disagree with the ALJ’s reliance on Dr.
Branham’s opinion, she did not err in doing so because it is consistent with the
medical evidence as a whole. See Casey v. Astrue, 503 F.3d 687, 694 (8th Cir. 2007)
(“The ALJ did not err in considering the opinion of [the state agency medical
consultant] along with the medical evidence as a whole.”).
4.
Failure to Fully and Fairly Develop the Record
Last, Brown argues that the ALJ failed to fully develop the record regarding the
significance of the neuropsychological testing performed by the examining
psychologists. (Filing 11 at CM/ECF pp. 25-27.) In support of this argument, Brown
lists a number of tests that were performed by Dr. Hudson and Dr. Golnick and asserts
that the ALJ is not “professionally qualified” to interpret the results of these tests. (Id.
at CM/ECF p. 27.) However, Brown does not argue, nor does the record show, that
the ALJ drew her own inferences from the test results. Cf Nevland v. Apfel, 204 F.3d
853, 858 (8th Cir. 2000) (“‘An administrative law judge may not draw upon his own
inferences from medical reports.’”) (quoting Lund v. Weinberger, 520 F.2d 782, 785
(8th Cir. 1975)). Rather, the ALJ properly considered the opinions of Dr. Hudson and
Dr. Golnick, each of whom reported their own conclusions regarding the tests they
performed. (Tr. 21, 24, 470-82.) See Gordils v. Sec’y of Health & Human Servs., 921
F.2d 327, 329 (1st Cir. 1990) (concluding ALJ may make common sense judgments
about functional capacity based on medical findings as long as he does not overstep
the bounds of a lay person’s competence and render a medical judgment). Brown
does not explain why Dr. Hudson’s or Dr. Golnick’s opinions needed further
development. (Filing 11 at CM/ECF p. 25.)
Brown also suggests that the ALJ failed to fully develop the record by not
ordering a “vocational evaluation,” a recommendation that Dr. Lindner made to
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determine whether Brown could work with support. (Filing 11 at CM/ECF p. 27.)
This argument fails for several reasons. First, Brown cites no authority showing that
an ALJ must order a vocational evaluation because an examining physician
recommended one. Second, the ALJ gave Dr. Lindner’s opinion and recommendation
“little weight.” (Tr. 26; see also supra Part III.C.2.) Third, the ALJ reviewed the
entire record in this matter and, as a whole, it was sufficient for the ALJ to determine
Brown’s residual functional capacity.
In short, Brown’s disagreement with the ALJ’s determination does not mean
she failed to fully develop the record.
IV. CONCLUSION
For the reasons explained above, I find the ALJ’s decision is supported by
substantial evidence on the record as a whole and is not contrary to law.
IT IS ORDERED that the decision of the Commissioner is affirmed pursuant
to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate
document.
DATED this 30th day of December, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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