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Hawkins v. Berryhill

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

November 7, 2018

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


         Claimant, April Stiefel Hawkins, commenced this action on December 19, 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.

         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 the ALJ: (1) improperly considered the opinion of her treating physician; (2) improperly considered her lack of medical treatment; (3) failed to find that she met the requirements of Listings 12.04 and 12.06; (4) entered a residual functional capacity finding that was not supported by substantial evidence; (5) failed to include all of her impairments in the hypothetical question to the vocational expert; (6) improperly evaluated her subjective complaints; and (7) failed to adequately consider her medication side effects. Upon review of the record, the court concludes that these contentions are without merit, and the Commissioner's decision is due to be affirmed.

         A. Treating Physician Opinion

         Claimant first asserts that the ALJ improperly considered the opinions of Dr. Ochuko Odjegba, her treating physician. 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.”).

         The record contains three assessments from Dr. Odjegba. He completed a form entitled “Request for Medical Information Work Requirements” for the State of Alabama Department of Public Health Food Stamp Program on March 7, 2014. He checked a box indicating that claimant was not able work, and then explained that her limitations were due to lumbago, generalized osteoarthritis, and fibromyalgia. She had experienced those conditions for “years, ” and would continue to suffer from them permanently.[1]

         Dr. Odjegba also completed a “Physical Capacities Form” on June 2, 2015. He indicated that claimant could sit for thirty minutes at a time and stand and walk for fifteen minutes at a time. She would have to lie down, sleep, or sit with her legs propped up for three hours during an eight-hour work day. Her limitations existed back to October 1, 2012, and they would continue for twelve or more months. The limitations were caused by back and knee pain, and the medications claimant took for her conditions caused sedation, nausea, and vomiting.[2]

         Dr. Odjegba completed a second “Physical Capacities Form” on November 2, 2016. He indicated that claimant could sit, stand, and walk for thirty minutes at a time. She would have to lie down, sleep, or sit with her legs propped up for four hours during an eight-hour work day. Her limitations existed back to October 1, 2012, and they would continue for twelve or more months. The limitations were caused by cervicalgia, backache, fibromyalgia, and generalized osteoarthritis. The medications claimant took for her conditions caused sedation and drowsiness.[3]

         The ALJ afforded only little weight to Dr. Odjegba's opinions. The ALJ did not credit Dr. Odjegba's statement that claimant was unable to work because that is an issue reserved to the Commissioner. He also explained that Dr. Odjegba

attempted to relate mental limitations but is not qualified to give such an opinion. Dr. Odjegba has also opined that the claimant is unable to sit, stand, or walk for longer than 30 minutes, which is not supported by any of his findings during the relevant period . . . . He remarked that the claimant's medications cause sedation, drowsiness, nausea, and vomiting, although his treatment notes reveal no such complaints.

Tr. 94 (record citation omitted). The ALJ thus adequately articulated his reasons for not fully crediting Dr. Odjegba's opinions.

         Claimant argues that the ALJ's decision nonetheless was not supported by substantial evidence because Dr. Odjegba's treating records reflect that claimant consistently received treatment for cervical and thoracic spine pain, and she reported pain scores of six or higher on at least twenty-six occasions between 2005 and 2013. Claimant also points to her fibromyalgia diagnosis and to MRI and x-ray results that reveal spondylitic changes and scoliosis in her spine. Even so, the mere existence of a medical condition, or of some pain resulting from that condition, does not support a finding of disability. Neither does claimant's subjective assessment of her pain level. Instead, the relevant consideration is the effect of claimant's condition, considered in combination with any of her other impairments, on her ability to perform substantial gainful work activities. See 20 C.F.R. §§ 404.1505(a) & 416.905(a) (defining a disability as “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months”). See also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (“The [Social Security] Act ‘defines “disability” in terms of the effect a physical or mental impairment has on a person's ability to function in the workplace.'”) (quoting Heckler v. Campbell, 461 U.S. 458, 459-60 (1983)) (alteration supplied). Even though there may be some subjective evidence in the record to support Dr. Odjegba's assessment, there is substantial evidence to support the ALJ's decision to afford only little weight to that assessment.

         Claimant also asserts that the ALJ improperly afforded more weight to the opinion of Dr. Samuel Williams, the state agency consultant, than it did to Dr. Odjegba's opinion. As an initial matter, the ALJ only afforded Dr. Williams's assessment “some weight, ” which is not much more than the “little weight” he afforded to Dr. Odjegba's assessment. Moreover, the ALJ did not specifically rely upon Dr. Williams's opinion as a factor in deciding to reject Dr. Odjegba's opinions. Finally, the ALJ was entitled to afford more weight to the opinion of a non-examining physician than to the opinion of a treating physician if the non-examining physician's opinion was more consistent with the medical evidence.

         B. Lack of Medical Treatment

         Claimant also argues that the ALJ improperly drew adverse inferences from her lack of medical treatment. The only time the ALJ mentioned claimant's lack of treatment was in the following context:

Moreover, there is no objective support for [claimant's] allegations of disabling mental symptoms. The claimant has been noted to demonstrate inadequate attention at only one encounter during the relevant period, undermining her complaints of an inability to concentrate . . . . She has also gone without mental health treatment for much of the relevant period, but she generally demonstrates an appropriate mood and affect with memory intact. . . .

Tr. 94 (alteration and emphasis supplied, record citations omitted).

         It is true that “poverty excuses [a claimant's] noncompliance” with medical treatment. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (alteration supplied). Thus, “while a remediable or controllable medical condition is generally not disabling, when a ‘claimant cannot afford the prescribed treatment and can find no way to obtain it, the condition that is disabling in fact continues to be disabling in law.'” Id. (quoting Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986)). The Eleventh Circuit has also held that “when an ALJ relies on noncompliance as the sole ground for the denial of disability benefits, and the record contains evidence showing that the claimant is financially unable to comply with prescribed treatment, the ALJ is required to determine whether the claimant was able to afford the prescribed treatment.” Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (citing Dawkins, 848 F.2d at 1214) (emphasis supplied).

         As an initial matter, it does not appear that the ALJ actually drew an adverse inference from claimant's lack of medical treatment. He did not find that claimant's complaints of mental health symptoms should not be fully credited because claimant had not sought enough treatment. Instead, he considered that, even for someone who had received only limited mental health treatment, claimant did not display symptoms consistent with disabling limitations.

         Moreover, even if the ALJ had drawn an adverse inference from claimant's lack of treatment, and even if her lack of treatment was the result of financial difficulty, the ALJ's decision would have been, at most, harmless error. Claimant's failure to seek additional mental health treatment was far from the sole reason that the ALJ denied claimant's disability benefits. The ALJ also considered claimant's reported activities, other medical conditions, and medical records.

         C. Mental Health Listings

         Claimant next asserts that the ALJ should have found her disabled under Listings 12.04 and 12.06. Listing 12.04, addressing affective disorders, requires proof of:

         1. Depressive disorder, characterized by five or more of the following:

a. Depressed mood;
b. Diminished interest in almost all activities;
c. Appetite disturbance with change in weight;
d. Sleep disturbance;
e. Observable psychomotor agitation or retardation;
f. Decreased energy;
g. Feelings of guilt or worthlessness;
h. Difficulty concentrating or ...

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