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Graham v. Berryhill

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

August 2, 2018





         On October 29, 2012, the claimant protectively applied for disability insurance benefits and a period of disability under Title II of the Social Security Act. The claimant alleged disability beginning April 26, 2011, because of lumbar disc disease, cervical disc disease, right shoulder impingement, obesity, and depression. The Commissioner denied the claims on January 30, 2013. On February 8, 2013, the claimant filed a written request for a hearing before an administrative law judge (ALJ), and she held a video hearing on February 26, 2014. (R. 13, 91-92, 109, 133, 244).

         In a decision dated April 4, 2014, the ALJ found that the claimant was not disabled as defined by the Social Security Act and was, therefore, ineligible for disability benefits. On November 17, 2015, the Appeals Council granted the claimant's request for review. The Appeals Council vacated the hearing decision and remanded the case to an ALJ to obtain supplemental evidence from a vocational expert to clarify the assessed limitations' effect on the claimant's occupational base. The ALJ held a second hearing on April 25, 2016, and again found that the claimant was not disabled under the Social Security Act in a decision dated August 25, 2016. (R. 7, 10-11, 106, 109, 127-28).

         On May 17, 2017, the Appeals Council denied the claimant's request for review; consequently, the ALJ's decision became the final decision of the Commissioner of the Social Security Administration. (R. 1). The claimant has exhausted his administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, the court REVERSES and REMANDS the decision of the ALJ.


         The issue before the court is whether the ALJ accorded proper weight to the opinions of the claimant's treating physician. The claimant raised three other issues involving the ALJ's findings regarding the claimant's residual functional capacity, the ALJ's assessment of the claimant's subjective testimony, and the ALJ's consideration of the claimant's disability pension. Because the court finds that substantial evidence does not support the ALJ's decision regarding the weight she gave Dr. Savage's opinions, the court will not address these other issues.


         The standard for reviewing the Commissioner's decision is limited. This court must affirm the ALJ's decision if she applied the correct legal standards and if her factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

         “No . . . presumption of validity attaches to the [Commissioner's] legal conclusions, including determination of the proper standards to be applied in evaluating claims.” Walker, 826 F.2d at 999. This court does not review the Commissioner's factual determinations de novo. The court will affirm those factual determinations that are supported by substantial evidence. “Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971).

         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 (RFC), 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(d), 416.927(d). Whether the claimant 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 substantial evidence in the record supports it.

         The court must “scrutinize the record in its entirety to determine the reasonableness of the [Commissioner]'s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not only look to those parts of the record that support the decision of the ALJ, but also must view the record in its entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).


         Absent a good showing of cause to the contrary, the ALJ must accord substantial or considerable weight to the opinions of treating physicians. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). The ALJ must credit the opinions of treating physicians over those of consulting physicians unless good cause exists for treating the opinions differently. Lewis v. Callahan, 125 F.3d 1436, 1440-41 (11th Cir. 1997). The ALJ may discount a treating physician's report when it is not accompanied by objective medical evidence or is wholly conclusory. Crawford v. Commissioner, 363 F.3d at 1159. Where the ALJ articulated specific reasons for failing to give the opinion of a treating physician controlling weight but substantial evidence does not support those reasons, the ALJ commits reversible error. See Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).

         V. FACTS

         The claimant was forty-five years old at the time of the ALJ's final decision. The claimant has a college education[1] and past relevant work for the State of Alabama as a youth service counselor. The claimant alleged disability beginning on April 26, 2011 because of lumbar disc disease, cervical disc disease, right shoulder impingement, obesity, and depression. (R. 13, 25, 38).

         Physical and Mental Impairments

         On April 26, 2011, the claimant sought treatment with Dr. P. Lauren Savage, Jr., an orthopedic surgeon at Alabama Orthopedic, Spine and Sports Medicine Associates, for pain in his right shoulder and neck, with his neck pain radiating down to the right arm. The claimant's pain resulted from a car accident on September 7, 2010. He assessed his right side pain as severe with a ranking of eight out of ten on the pain scale, and his neck pain as moderate with a rating of four. The claimant denied feeling depressed or anxious, and reported that his pain increased with lifting, twisting, driving, lying on his back, and rising from sitting. Activities and sleeping made his symptoms worse. On examination, the claimant's neck and shoulder showed no instability. Dr. Savage prescribed the claimant Mobic and ordered MRIs of the claimant's right shoulder and cervical spine. (R. 433-35).

         The MRI of the claimant's cervical spine showed posterior broad-based disc bulging; bilateral severe neural foraminal stenosis at ¶ 3-4; mild central canal stenosis at ¶ 3-4; mild concentric disc bulging and mild central canal and left neural foraminal stenosis at ¶ 4-5; concentric disc bulging and a right posterior protrusion at ¶ 5-6; bilateral moderate neural foraminal stenosis; mild right central canal stenosis; and a small broad-based central protrusion at ¶ 6-7, with mild impression on the thecal sac. The impression was degenerative changes and disc disease and stenosis. At a follow-up appointment on May 3, 2011, Dr. Savage gave the claimant injections of numbing and steroid medications and recommended a course of physical therapy. (R. 429, 440).

         On July 1, 2011, the claimant returned to Dr. Savage with continuing pain and numbness in his right shoulder and pain in his mid and lower back. The claimant complained that he woke at night with pain three nights during the week. X-ray imaging of the claimant's lumbosacral spine and thoracic spine showed no disc space narrowing, acute osseous lesions, or any significant degenerative arthritis. Dr. Savage discussed treatment options with the claimant, and recommended an arthroscopy of his right shoulder. Dr. Savage performed an acromioplasty, an arthroscopic surgery to remove a small piece of the acromion that is causing friction between the bone and the tendon, and a Mumford procedure, an operation to remove the end of the clavicle to ameliorate shoulder pain, on the claimant's right shoulder on July 8, 2011. (R. 420, 422, 441).

         Between July 15 and September 2, 2011, the claimant saw Dr. Savage four times for follow-up appointments. Following his surgery, the claimant had superficial abscesses in axilla, which cleared, and he reported an improved range of motion in his shoulder but with mild tenderness. Dr. Savage prescribed Percocet and further physical therapy. (R. 415-419).

         On October 14, 2011, the claimant saw Dr. Savage for persistent back, leg, neck, arm, and upper back pain. The claimant's leg pain and tingling and numbness were “worse [] than right after [the] wreck.” The claimant denied a history of depression, anxiety, bipolar or schizophrenia. Dr. Savage's bilateral lumbar examination revealed that the claimant had limited lumbar flexion, extension, and rotation, and his muscle strength was “grossly normal” and equal bilaterally. He had moderate subacromial tenderness and good range of motion in his right shoulder, although he had pain with flexion over the head, horizontal adduction, and internal rotation. A new MRI of the claimant's cervical spine showed formal protrusion on the right and moderate to severe right and mild left neural foraminal stenosis at ¶ 5-6, as well as mild central canal stenosis. A new MRI of his lumbar spine showed central protrusion and moderate right neural foraminal stenosis at ¶ 5-S1 and herniation with annular tear. The impression was nerve root impingement syndrome and herniated nucleus pulp/lumbar. Dr. Savage ordered a lumbar epidural injection and recommended further physical therapy. (R. 409-11, 442-43).

         On December 27, 2011, the claimant saw Dr. Savage for pain in his shoulder and back. The claimant noted that when he was able to rest and not do too much his pain was a four or a five on a ten-point pain scale. But, when he had a “pain-out” his pain was a ten and “stop[ped] him in his tracks.” Additional symptoms included radiation of pain on his right side, sleep disturbances, stiffness, range of motion limitation, and weakness. The claimant denied a history of depression, anxiety, bipolar, or schizophrenia. In his bilateral lumbar spine, he had good alignment but generalized tenderness. X-ray imaging showed no acute changes, and Dr. Savage gave the claimant injections of numbing and steroid medications. (R. 405-06).

         The claimant saw Dr. Savage on February 21, 2012 for severe lower back pain, which the claimant rated as an eight on a ten-point scale. Dr. Savage noted that the claimant's current condition prohibited him from working in his previous profession. (R. 399, 401).

         On July 17, 2012, Dr. Savage completed a Report of Disability on behalf of the claimant for the Retirement Systems of Alabama (RSA). Dr. Savage stated that the claimant's job required “a lot of monitoring” and “excessive walking, ” as well as daily physical confrontations with students. He stated that the claimant would not be able to participate in control force tactics training because of his conditions, and maintaining a safe physical environment would require too much demanding physical work for the claimant. Dr. Savage further noted that, ...

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