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Hickman v. Berryhill

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

January 29, 2018

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.


         Claimant, Jenna Hickman, commenced this action on April 7, 2017, 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, disability insurance, and supplemental security income benefits. Claimant moved to remand the case to the Commissioner for consideration of additional evidence.[1] Claimant also submitted briefs in support of her entitlement to benefits.[2] For the reasons stated herein, the court finds that the matter should not be remanded to the Commissioner, and that the Commissioner's decision to deny claimant's benefits is due to be affirmed.


         Claimant asserts that her claim should be remanded to the Commissioner because the ALJ failed to consider records related to her November 19, 2015 back surgery. Claimant first visited orthopedic surgeon Dr. Gregory Gullung on October 28, 2015. She complained of constant pain, saying that, on a scale of 1-to-10, it was at ¶ 9-10 level, limited range of motion, difficulty walking, and sleep disturbance, all of which were made worse with twisting, turning, sitting, walking, and sleeping. She stated that the symptoms commenced after she injured her back lifting a heavy item at work on May 9, 2013. Dr. Gullung's lumbar examination revealed normal alignment, tenderness, limited range of motion, reduced strength and sensation, equal reflexes, positive straight leg raising test, and unassisted ambulation. X-rays revealed degenerative disc disease and stenosis at the L5-S1 vertebra. Dr. Gullung requested claimant to return after undergoing an MRI.[3] The MRI performed on November 2, 2015, revealed “very mild lateral recess stenosis L5/S1 bilaterally, possible swelling S1 root as it is leaving foramen.”[4]

         Because claimant reported continuing severe pain, despite conservative treatment, Dr. Gullung recommended surgery, with the continuation of physical therapy and medical intervention through the date of surgery.[5] The surgery occurred on November 19, 2015. Dr. Gullung performed a decompression at ¶ 5-S1 and an epidural steroid injection at ¶ 3-4.[6] Intraoperative imaging of the lumber spine was performed, but the November 20, 2015 report of that imaging does not state what was revealed.[7]

         The administrative hearing took place on December 3, 2015, only two weeks after the surgery.[8] The ALJ questioned claimant about the effects of the surgery, and about what she was and was not able to do prior to the surgery. Dr. Gullung's surgical records were not available at the time of the hearing, but the ALJ later obtained them and made them part of the record.[9]

         The ALJ's final decision discussed both Dr. Gullung's records and claimant's testimony about the effects of the surgery during the administrative hearing.[10]Accordingly, claimant's argument that the ALJ “failed to mention the surgery and failed to acknowledge the treatment records of the surgery” is simply not true.[11] The motion to remand is due to be denied.


         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).

         Claimant contends that the Commissioner's decision is neither supported by substantial evidence nor in accordance with applicable legal standards. Specifically, claimant asserts that: (1) the ALJ's hypothetical question to the vocational expert (“VE”) did not accurately state claimant's pain level or her residual functional capacity; (2) the ALJ failed to state adequate grounds for rejecting the opinion of an examining psychologist; (3) the ALJ's residual functional capacity finding was not supported by substantial evidence and violates Social Security Ruling 96-8p; and, (4) the ALJ failed to state adequate reasons for finding claimant to be less than fully credible. Upon review of the record, the court concludes these contentions are without merit.

         A.Examining Psychologist's Opinion

         Social Security regulations provide that, when considering the weight to accord any medical opinion (regardless of whether it is from a treating or non-treating source), the Commissioner should evaluate: the extent of the examining or treating relationship between the doctor and patient; the question of 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.”). Additionally, the ALJ is not required to accept a conclusory statement from any medical source that a claimant is unable to work, because the decision whether a claimant is disabled is not a medical opinion, but is a decision “reserved to the Commissioner.” 20 C.F.R. §§ 404.1527(d), 416.927(d).

         Dr. David Wilson, a clinical psychologist, examined claimant at the request of her attorney on November 23, 2015. He also reviewed treatment records from Carr Mental Wellness, where claimant had been diagnosed with major depressive/affective disorder and generalized anxiety disorder. Claimant reported taking Xanax on a daily basis to prevent panic attacks. She also had been taking anti-depressant medication since she was 16 years old. During the clinical interview, claimant demonstrated intact thought processes, normal speech, and genuine pain behaviors. She denied hallucinations, delusions, and ideas of reference. She did have some indicators of obsessive-compulsive disorder, but they were not clinically significant. Her last panic attack occurred two weeks before the interview, and she reported that panic attacks were more likely when she was in public. Claimant's affect was within normal limits, but she reported being depressed all the time and sometimes not wanting to get out of bed. She also reported trouble sleeping, low appetite, and variable energy, but no crying spells or suicidal ideation. Her daily routine included doing chores around the house, caring for her horse and dog, watching television with her husband at night, spending time with friends, and sometimes attending church, but those activities were more difficult when she experienced bouts of depression or increased back pain. She had some problems with mental control and attention, mild problems with short term and working memory, above average acquired information, average abstract reasoning, and a valid pain profile. Dr. Wilson's summary assessment was as follows:

Jenna appears to have serious problems with her back which could make it difficult for her to work - but this does need to be documented by a physician. She is very depressed and she is also highly anxious, and she has frequent panic attacks, even thought [sic] she takes a fairly large dose of Xanax, and she is required to take more when she has a panic attack. She is also on an antidepressant, but she is still quite depressed. Her ability to withstand the pressures of day to day occupational functioning is highly impaired. She would have difficulty with both the task and the interpersonal aspects of any job. She is capable of managing benefits.

         Tr. 616-17. Dr. Wilson assessed claimant with moderate major depressive disorder, recurrent, panic disorder, and average intelligence.[12]

         Dr. Wilson also completed a “Mental Health Source Statement” form. He indicated that claimant would be able to understand, remember, and carry out short and simple instructions, but she would not be able to maintain attention, concentration and/or pace for periods of at least two hours, perform activities within a schedule, be punctual within customary tolerances, sustain an ordinary routine without special supervision, adjust to routine and infrequent work changes, respond appropriately to criticism from supervisors, interact appropriately with co-workers, maintain socially appropriate behavior, or adhere to basic standards of neatness and cleanliness. He opined that, during a thirty-day period, claimant would be expected to miss twenty-five days of work due to her symptoms.[13]

inconsistent with the record as a whole and the claimant's own reports. Specifically, the claimant reported to providers at Carr Mental Health that medication was helping with her symptoms. Additionally, she reported to Dr. Wilson that her daily routine included doing some household chores, taking care of her horse and dog, watching television with her husband at night, and she even reported going out to dinner with friend [sic], or having them over. Furthermore, despite her anxiety, depression, and alleged inability to work since May 2013, she testified and reported to Dr. Wilson that she continued to work part-time as a cashier until March 2015.

Tr. 31.

         Claimant asserts that the ALJ failed to adequately specify the weight afforded to Dr. Wilson's opinion, and to explain the reasons for that decision. See McClurkin v. Social Security Administration, 625 F. App'x 960, 962 (11th Cir. 2015) (“‘[W]hen the ALJ fails to state with at least some measure of clarity the grounds for his decision, we will decline to affirm simply because some rationale might have supported the ALJ's conclusion.'”) (quoting Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1179 (11th Cir. 2011)) (alteration supplied). That argument is not supported by the record.

         The ALJ specifically articulated that she was affording Dr. Wilson's assessment only little weight. She also articulated the reasons for that decision: i.e., that the finding was inconsistent with claimant's reports to her treating psychiatrist that medication helped her symptoms, claimant's daily activities, and claimant's ability to continue work part-time.[14] Moreover, the ALJ's treatment of Dr. Wilson's assessment was supported by substantial evidence, including records from Carr Mental Wellness, [15] and claimant's reports to Dr. Wilson about her daily activities and work history.

         B. Residual ...

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