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Ferguson v. Colvin

United States District Court, N.D. Alabama, Southern Division

August 10, 2017

CANDICE FERGUSON, Claimant,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

         Claimant, Candice Ferguson, commenced this action on September 12, 2016, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and thereby denying her claim for a period of disability and disability insurance benefits.

         The court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of review is limited to determining whether there is substantial evidence in the record as a whole to support the findings of the Commissioner, and whether correct legal standards were applied. See Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983).

         The ALJ found that claimant had the severe impairments of migraine headaches and obesity, but that she nonetheless retained the residual functional capacity to perform a full range of light work, thus enabling her to perform her past relevant work as a development manager and merchandise manager.[1] Claimant contends that the Commissioner's decision is neither supported by substantial evidence nor in accordance with applicable legal standards. Specifically, claimant asserts that the ALJ improperly considered the opinions of the treating and examining physicians and failed to properly consider her obesity and mental impairments. Upon review of the record, the court concludes that these contentions are without merit, and the Commissioner's decision should be affirmed.

         A. Medical Opinions

         The opinion of a treating physician “must be given substantial or considerable weight unless ‘good cause' is shown to the contrary.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (internal citations omitted). 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.” Id. (alterations supplied). Additionally, the ALJ is not required to accept a conclusory statement from a medical source, even a treating source, that a claimant is unable to work, because the decision on that issue is not a medical question, but is a decision “reserved to the Commissioner.” 20 C.F.R. §§ 404.1527(d) & 416.927(d).

         Social Security regulations also provide that, in considering what weight to give any medical opinion (regardless of whether it is from a treating or non-treating physician), the Commissioner should evaluate: the extent of the examining or treating relationship between the doctor and patient; whether the doctor's opinion can be supported by medical signs and laboratory findings; whether the opinion is consistent with the record as a whole; the doctor's specialization; and other factors. See 20 C.F.R. §§ 404.1527(c) & 416.927(c). See also Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (“The weight afforded a physician's conclusory statements depends upon the extent to which they are supported by clinical or laboratory findings and are consistent with other evidence as to claimant's impairments.”).

         1. Dr. Counce

         Dr. Diane Counce, claimant's treating neurologist, completed “Clinical Assessment of Pain” and “Clinical Assessment of Fatigue/Weakness” forms on October 16, 2014. She indicated that claimant experienced pain to such an extent as to be distracting to adequate performance of daily activities or work, that physical activity would greatly increase claimant's pain to such a degree as to cause distraction from or total abandonment of tasks, that claimant would experience some side effects from her prescribed medication, but not to such an extent as to cause serious problems in most instances, and that claimant experienced an underlying medical condition consistent with the pain she experienced.[2] Dr. Counce also indicated that fatigue and weakness were present, but would not prevent functioning in everyday activities or work. Physical activity would greatly increase claimant's fatigue and weakness to such an extent as to cause total abandonment of tasks. Claimant would experience some side effects from her prescribed medications, but not to such an extent as to create serious problems in most instances. Dr. Counce failed to circle either “yes” or “no” in response to the question, “Does this patient have an underlying medical condition consistent with the fatigue/weakness he or she experiences?”[3]

         The ALJ did not specifically state how much weight he afforded to Dr. Counce's assessment. Instead, he described the normal results of the magnetic resonance angiogram and magnetic resonance imaging tests Dr. Counce performed, and noted that, despite the limitations Dr. Counce imposed,

the longitudinal treatment records to system [sic] reflect that the claimant complains of headaches [and] has been prescribed various medications . . . . Yet, due to the overall nature of the claimant's underlying neurological issue the only substantial evidence is subjective in nature, such as the claimant's reports as to the severity or frequency of headaches, and the effectiveness of the prescribed treatment medications.

Tr. 20 (alteration supplied). Even though the ALJ did not specify the amount of weight he afforded to Dr. Counce's assessment, it is clear that he did not find it to be controlling. As an initial matter, the ALJ did not find claimant's subjective testimony to be entirely credible.[4] Moreover, Dr. Counce found disabling levels of pain, while the ALJ found claimant capable of performing a full range of light work. Because it can clearly be discerned from the remainder of the ALJ's opinion that he did not give controlling weight to Dr. Counce's assessment, and because it also is clear that the ALJ thoroughly considered all of Dr. Counce's records, it was at most harmless error that the ALJ failed to articulate the weight he afforded to Dr. Counce's assessment. See Brown v. Commissioner of Social Security, 680 F.App'x 822, 824-25 (11th Cir. 2017) (holding that the ALJ's failure to specify the weight afforded to the opinion of one of claimant's treating medical providers was harmless error when it was apparent that the ALJ had considered all records from the treating provider “in detail”).

         The ALJ's decision not to give controlling weight to Dr. Counce's assessment was in accordance with applicable law and supported by substantial evidence. The ALJ adequately articulated his reasons for rejecting the assessment when he stated that the assessment appeared to be based solely upon claimant's subjective complaints, and that all the objective neurological findings were normal.

         2. Dr. Devere

         Dr. Ronald Devere, a neurologist, testified as a medical expert retained by the Social Security Administration during the January 27, 2015 administrative hearing. After reviewing claimant's medical records, Dr. Devere testified that, even though claimant's medical providers had been diagnosing her with migraine headaches, her neurological examinations and brain scans had always been normal. He suspected that her headaches may have been contractual or “tension” in origin, instead of neurological. He also was concerned that claimant's numerous medications might have been exacerbating, not alleviating, her condition.[5] Dr. Devere opined that claimant would need to be limited to sedentary work because her medications could affect balance, coordination, and thinking. She could sit for six hours, stand for an hour, and walk for an hour during an eight-hour work day. She could not drive a car, work with moving machinery, climb ladders, be exposed to unprotected heights, or use foot pedals. She could lift ten pounds occasionally and five pounds frequently. She could only occasionally climb stairs, reach, balance, stoop, and bend, but she would not have any limitations on her fine and gross manipulation.[6]

         The ALJ afforded Dr. Devere's assessment only “some weight, ” because “there are no physical findings within the record to establish the claimant's neurological issue resulting in significant exertional or postural restrictions.”[7] The ALJ was entitled to not give controlling weight to Dr. Devere's assessment if it was unsupported by record findings, and, indeed, the record does not contain any objective neurological findings to support a headache disorder of the severity claimant alleges.

         3. Dr. Powell

         Dr. Danielle Powell performed a consultative examination on May 18, 2013. Claimant complained of migraine headaches, cervical dystonia, and occiptal neuralgia.[8] She reported being able to take care of her personal needs, but unable to perform housework or yardwork. She stated that she lies in bed all day. Claimant was able to walk to the examination room without assistance, sit comfortably, and get on and off the examination table comfortably. Her gait was normal. She had tenderness in the cervical area, but no muscle spasms and good range of motion in her neck. Her motor strength, motor skills, senses, reflexes, and cranial nerves all were normal. Dr. Powell assessed no limitations on sitting, but opined that claimant could stand and walk for less than two hours each, due to fatigue and pain. Dr. Powell indicated that claimant could occasionally lift five to ten pounds, and could frequently lift ten to twenty pounds, but that assessment appears to be based upon a typographical error. It is more reasonable to conclude that Dr. Powell intended to state that claimant could frequently lift five to ten pounds, and could occasionally lift ten to twenty pounds. In any event, Dr. Powell assessed no limitations on hearing, speaking, traveling, hazards, reaching, handling, fingering, or feeling, but there were limitations of frequent stooping, crouching, kneeling, crawling, and climbing steps, stairs, and ladders.[9]

         The ALJ afforded Dr. Powell's assessments only some weight, because they “appear to rely primarily upon the claimant's subjective allegations, as Dr. Powell noted that the claimant's limitation on standing was secondary due to fatigue and her limitations in walking were secondary to pain, which . . . cannot be quantified in an objective manner.”[10] Again, the ALJ was entitled to at least partially reject Dr. Powell's assessment as being based upon purely subjective allegations. Moreover, as discussed above ...


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