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George v. Berryhill

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

March 26, 2018

NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.



         The plaintiff, Kenneth George, appeals from the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his application for a period of disability, disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). The plaintiff timely pursued and exhausted his administrative remedies, and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to the exercise of dispositive jurisdiction by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 9).


         Mr. George was 47 years old on the date of the ALJ's opinion, which occurred on March 10, 2015. (Tr. at 70, 151). Although he was in special education classes, he completed the twelfth grade. (Tr. 195, 320). His past work experience includes employment as a painter, live chicken hanger, oil changer, groundskeeper/tractor operator, janitor/maintenance, and tire thrower. (Tr. at 37, 195, 202). Mr. George claims that he became disabled on January 1, 2013, due to back problems, high blood pressure, and headaches. (Tr. at 44).

         When evaluating the disability of individuals over the age of eighteen, the regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The first step requires a determination of whether the claimant is “doing substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, the claimant is not disabled and the evaluation stops. (Id.) If he is not, the Commissioner next considers the effect of all of the physical and mental impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments must be severe and must meet the durational requirements before a claimant will be found to be disabled. (Id.) The decision depends on the medical evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant's impairments are not severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step three, which is a determination of whether the claimant's impairments meet or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant's impairments fall within this category, he will be found disabled without further consideration. (Id.) If they do not, a determination of the claimant's residual functional capacity will be made and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an assessment, based on all relevant evidence, of a claimant's remaining ability to do work despite his or her impairments. 20 C.F.R. § 404.945(a)(1).

         The fourth step requires a determination of whether the claimant's impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past relevant work, the claimant is not disabled and the evaluation stops. (Id.) If the claimant cannot do past relevant work, then the analysis proceeds to the fifth step. (Id.) Step five requires the court to consider the claimant's RFC, as well as the claimant's age, education, and past work experience, in order to determine if he or she can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do other work, the claimant is not disabled. (Id.) The burden is on the Commissioner to demonstrate that other jobs exist which the claimant can perform; and, once that burden is met, the claimant must prove his or her inability to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).

         Applying the sequential evaluation process, the ALJ found that Mr. George was insured through March 31, 2016. (Tr. at 75). He further determined that Mr. George has not engaged in substantial gainful activity since the alleged onset of his disability. (Id.) According to the ALJ, Mr. George has the following impairments that are considered “severe” based on the requirements set forth in the regulations: lumbar degenerative disc disease, obesity, hypertension, osteoarthritis, mood disorder, and reading and math disorder. (Id.) However, he found that these impairments neither meet nor medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (Tr. at 76). The ALJ did not find Mr. George's allegations entirely credible (Tr. at 79), and he determined that he has the following residual functional capacity:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with no right side foot control operation and no climbing of ladders, ropes or scaffolds. He is precluded from commercial driving and from exposure to hazardous or moving machinery, unprotected heights, and uneven terrain. He can sustain no more than occasional climbing of ramps or stairs, balancing, stooping, kneeling, crouching and crawling. He requires a handheld device for ambulation, balancing and standing. He needs work that requires no more than the understanding, remembering and carrying out of simple instructions. That activity can be sustained for two hours at a time and with mid-morning, lunch and mid-afternoon breaks, can be sustained over an eight-hour day. The work should require no more than occasional changes in the work setting and no more than occasional interaction with the public, co-workers and supervisors.

(Tr. at 78).

         According to the ALJ, Mr. George is unable to perform any of his past relevant work, he is a “younger individual, ” and he has “at least a high school education, ” as those terms are defined by the regulations. (Tr. at 83-84). He determined that “[t]ransferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is ‘not disabled, ' whether or not he has transferable job skills.” (Tr. at 84). The ALJ found that Mr. George has the residual functional capacity to perform sedentary “jobs that exist in significant numbers in the national economy.” (Id.). Even though additional limitations impede Mr. George's “residual functional capacity to perform the full range of sedentary work, ” the ALJ determined that Mr. George “would be able to perform the requirements of representative sedentary, unskilled occupations with an SVP of 2, such as . . . table worker, . . . assembler, . . . .and as a[n] inspector.” (Tr. at 84-85). The ALJ concluded his findings by stating that Mr. George “has not been under a disability, as defined in the Social Security Act, from January 1, 2013, through the date of this decision.” (Id.)

         II. Standard of Review

         This Court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of its review is limited to determining (1) whether there is substantial evidence in the record as a whole to support the findings of the Commissioner, and (2) whether the correct legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the Commissioner with deference, but applies close scrutiny to the legal conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts, weigh evidence, or substitute its judgment for that of the Commissioner. (Id.) “The substantial evidence standard permits administrative decision makers to act with considerable latitude, and ‘the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.'” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Federal Mar. Comm'n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the evidence preponderates against the Commissioner's decision, the Court must affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for “despite this deferential standard [for review of claims] it is imperative that the Court scrutinize the record in its entirety to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

         The court must keep in mind that opinions such as whether a claimant is disabled, the nature and extent of a claimant's residual functional capacity, and the application of vocational factors “are not medical opinions, . . . but are, instead, opinions on issues reserved to the commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). Whether the plaintiff meets the listing and is qualified for Social Security disability benefits is a question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ about the significance of certain facts, the court has no power to reverse that finding as long as there is substantial evidence in the record supporting it.

         III. Discussion

         Mr. George argues that the Commissioner's decision should be overturned for five reasons. First, he contends that the ALJ failed to accord proper weight to the opinions of Dr. Nichols and Dr. Estock, consulting physicians for the Commissioner. Second, he asserts that the ALJ failed to adequately consider Mr. George's testimony concerning the side effects of his pain medication. Third, he contends that the ALJ's conclusion that Mr. George retains the RFC to perform sedentary work is not supported by substantial evidence and that the RFC violates SSR 96-8p. Fourth, he maintains that the case should be remanded because the ALJ failed to assess the intensity and persistence of Mr. George's symptoms pursuant to SSR 16-3p. Finally, he argues that the Appeals Council failed to show that it had adequately evaluated the newly submitted evidence.

         A. Consideration of Dr. Nichols and Dr. Estock's Opinions

         Under prevailing law, a treating physician's testimony is entitled to “substantial or considerable weight unless ‘good cause' is shown to the contrary.” Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 1997) (internal quotations omitted). The weight to be afforded a medical opinion regarding the nature and severity of a claimant's impairments depends, among other things, upon the examining and treating relationship the medical source had with the claimant, the evidence the medical source presents to support the opinion, how consistent the opinion is with the record as a whole, and the specialty of the medical source. See 20 C.F.R. §§ 404.1527(d), 416.927(d). “Good cause” exists for an ALJ to not give a treating physician's opinion substantial weight when the “(1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) . . . was conclusory or inconsistent with the doctor's own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) citing Lewis, 125 F.3d at 1440; see also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good cause” exists where the opinion was contradicted by other notations in the physician's own record).

         Of course, neither Dr. Nichols nor Dr. Estock was plaintiff's treating physician. The great weight ordinarily accorded the opinions of the claimant's treating physician simply does not extend to them. Dr. Nichols performed a consultation based upon an examination, while Dr. Estock was a non-examining consultant. “The opinions of nonexamining, reviewing physicians… when contrary to those of the examining physicians, are entitled to little weight, and standing alone do not constitute substantial evidence.” Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987) (citing Spencer ex rel. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir.1985) (per curiam)).

         Opinions such as whether a claimant is disabled, the claimant's residual functional capacity, and the application of vocational factors “are not medical opinions, . . . but are, instead, opinions on issues reserved to the Commissioner;” thus the court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The court instead looks to the doctors' evaluations of the claimant's condition and the medical consequences thereof, not their opinions of the legal consequences of his [or her] condition.” Lewis, 125 F.3d at 1440. See also 20 C.F.R. § 404.1527(d)(1)(“A statement by a medical source that you are ‘disabled' or ‘unable to work' does not mean that we will determine that you are disabled.”). Such statements by a physician are relevant to the ALJ's findings, but they are not determinative, because it is the ALJ who bears the responsibility of assessing a claimant's residual functional capacity. See, e.g., 20 C.F.R. § 404.1546(c).

         1. The Weight Given to Dr. Nichols

         Mr. George argues that the ALJ failed to accord proper weight to the opinion of Dr. June Nichols, an examining medical consultant. According to the ALJ, during his consultation with Dr. Nichols, Mr. George “reported that he no longer felt like doing things and that his wife had to help him with things such as bathing and driving him where he needed to go.” (Tr. at 81). Dr. Nichols noted that Mr. George's “affect was within normal limits with only situational anxiety [present]. His mood was mildly depressed.” (Tr. at 320). She further noted that he had difficulty with sleeping and that he was fully oriented. (Tr. at 320-21). However, Mr. George “was unable to compute Serial Sevens or Serial Threes.” (Tr. at 321). He could not do multiplication problems, but he could “calculate simple addition and subtraction” problems. (Id.). His “recent and remote memory functions appeared mildly impaired, ” although his “[f]und of information was fair.” (Id.). His thought processes and thought content were normal. (Id.). Dr. Nichols further concluded that Mr. George likely “functions in the low-average range of intellectual ability.” (Id.). She diagnosed Mr. George with “mood disorder directly related to medical condition, depression[;]” “alcohol abuse in remission[;]” “reading disorder[;]” and “disorder of mathematics.” (Id.). Additionally, she diagnosed Mr. George with high blood pressure, stomach ulcers, chronic migraines, chronic back pain, and insomnia. (Tr. at 322). She assigned Mr. George a global assessment of functioning score of 55. (Id.).

         The ALJ concluded, however, that “the opinion of Dr. Nichols is given only some weight.” (Tr. at 81). The ALJ found that Mr. George had “failed to seek formal mental health treatment[, ] . . . ha[d] not made any significant complaints of mental health symptoms to his treating physicians[, ] . . . [and] ha[d] not been prescribed any psychotropic medications.” (Id.). Additionally, the ALJ noted that, “[w]hile he testified at the hearing to anxiety and some problems focusing, [Mr. George] also testified that he still is not taking any medications for his alleged mental health symptoms.” (Id.).

         The record makes clear that not one of Mr. George's treating physicians has ever concluded that Mr. George suffered from mental health symptoms. In fact, the record is replete with examples to the contrary, where the attending medical professional noted that Mr. George was “Negative for anxiety and depression” during office visits ranging from January 23, 2013 to September 12, 2014 (Tr. at 293, 297, 304, 334, 343, 348, 353, 358). Additionally, Dr. Jimmy Oguntuyo found Mr. George's psychiatric system “within normal limits” on four different visits between September 9, 2014, and November 18, 2014. (Tr. at 364, 368, 382, 388). The ALJ articulated reasons for giving less than controlling weight to Dr. Nichols' conclusions, given Mr. George's failure to complain of mental health symptoms to his treating physicians and to seek treatment. Dr. Nichols' diagnosis simply was not bolstered by the other evidence in the record. Accordingly, the ALJ had good cause for giving Dr. Nichols' diagnosis “little weight.”[2]

         2. The Weight Given to Dr. Estock

         Mr. George further argues that the ALJ failed to accord proper weight to the opinion of Dr. Robert Estock, a non-examining consultative physician. Dr. Estock reported that Mr. George had “moderate” limitations in a few categories of his mental functioning. However, Dr. Estock ultimately determined that Mr. George was capable of understanding, remembering, and carrying “out short and simple instructions[;]” attending and concentrating for “2 hour periods on simple tasks with customary breaks and rest during the ...

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