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Randolph v. Berryhill

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

February 27, 2019

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


         Claimant, Nathan Randolph, commenced this action on August 9, 2018, 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 his claim for a period of disability and disability insurance benefits. For the reasons stated herein, the court finds that the Commissioner's ruling is due to be affirmed.

         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) made factual findings that were not supported by substantial evidence; (2) did not afford proper weight to a treating physician's opinion; (3) improperly substituted her own opinion for that of the medical experts; and, (4) improperly considered claimant's daily activities. Upon review of the record, the court concludes that these contentions lack merit, and the Commissioner's ruling is due to be affirmed.


         Claimant asserts that the ALJ's opinion was not supported by substantial evidence because she “erroneously cherry picked bits and pieces of the record to justify two flawed decisions despite overwhelming objective evidence supporting [claimant's] contention he cannot work.”[1]

         Claimant first challenges the ALJ's statement that “[t]he record clearly shows the claimant has undergone two lumbar spine surgeries and one cervical spine surgery; however, his symptoms resolved postoperatively, with no significant ongoing problems evidenced in the objective medical record.”[2] Claimant asserts that his symptoms continued, or even worsened, after each surgery. It is true that claimant's symptoms did progress after his first lumbar spine surgery on April 5, 2013, [3]necessitating a second surgery more than two and a half years later, on November 2, 2015.[4] But what occurred between claimant's first and second surgeries has little bearing on his claim, because his alleged disability onset date was not until September 1, 2015, only two months before his second surgery.[5] Thus, it was appropriate for the ALJ to focus upon claimant's functional abilities after his second lumbar surgery.

         The ALJ noted that claimant experienced some relief after the second surgery on November 2, 2015.[6] A consultative examination performed by Dr. Kevin Goelz on December 5, 2015, revealed that claimant was able to get on and off the examination table, get into and out of a chair, and ambulate without difficulty. His gait was normal without an assistive device. Straight leg raising tests were negative. Claimant was able to walk on his toes and heels, squat to the floor and recover, tandem walk, and bend to touch his toes. He had normal grip strength, normal fine and gross manipulation skills, no evidence of muscular atrophy, full motor strength in all extremities, and normal reflexes. His range of motion in all joints was within normal limits. Dr. Goelz concluded that claimant had “no exam findings to suggest a functional limitation” with regard to standing, sitting, walking, bending, stooping, reaching, handling, lifting, carrying, seeing, hearing, remembering, or understanding.[7] Dr. Mark Prevost, claimant's orthopedic surgeon, reported on December 16, 2015, that he had “excellent placement” of his bone graft and that he had “some improvement” of his back and leg pain.[8] During visits to his primary care physician, Dr. Farouk Raquib, between November 17, 2015 and June 13, 2016, claimant reported that his pain was between a level 2 and 5 on a 10-point scale. Claimant also stated that, with medication, his activity level improved 60-80%, and his overall pain level improved 70-90%.[9]

         The ALJ acknowledged that claimant re-injured his back sometime in July 2016, while working in his yard.[10] An MRI on August 10, 2016 revealed the following findings in claimant's lumbar spine:

L1-L2: Unremarkable on sagittal images.
L2-L3: Shallow posterior disc bulge. Moderate facet degenerative changes. Flattening of the ventral surface of the thecal sac. AP diameter of the central thecal sac, 11 mm. Mild bilateral lateral recess stenosis.
L3-L4: Broad-based posterior disc protrusion, eccentric to the left. Moderate facet degenerative changes. AP diameter of the central thecal sac, 5mm. Severe bilateral lateral recess stenosis. Mild bilateral foraminal stenosis.
L4-L5: Metal artifact from anterior surgical plate and screws. Interbody spacer appears to be present. Posterior disc osteophyte complex mildly impresses on the ventral surface of the thecal sac. Moderate facet degenerative changes. Lateral recesses appear moderately narrowed on the right and mildly narrowed on the left. Moderate bilateral foraminal stenosis.
L5-S1: Small, shallow, posterior disc protrusion slightly impresses the thecal sac. Moderate facet degenerative changes. AP diameter of the central thecal sac, 11 mm. Mild right and mild-moderate left foraminal stenosis.

Tr. 977-78. When Dr. Prevost reviewed those results on August 24, 2016, he stated that claimant had “a new large disc herniation causing severe bilateral lateral recess stenosis and foraminal stenosis thecal sac only, ” with “significant degenerative changes at this level” and “fairly significant radicular symptoms.”[11] He recommended a series of three epidural steroid injections, with the possibility of an additional (third) surgery if the injections did not provide relief.[12] Claimant reported on October 17, 2016, that he did not receive significant relief from his injections, and Dr. Prevost continued to recommend surgery. Claimant informed Dr. Prevost that he wanted to discuss the potential surgery with his wife, but it does not appear that claimant ever received the surgery, and Dr. Prevost's records do not contain any further notes regarding treatment for claimant's lumbar spine.[13] Even though the ALJ acknowledged that claimant received epidural steroid injections in his lumbar spine, [14]she did not mention Dr. Prevost's recommendation of additional surgery. That omission seems significant at first blush, but claimant's treatment records do not reflect any disabling functional limitations as a result of lumbar pain after he re-injured his back. During monthly visits to Dr. Raquib between August 9, 2016 and December 19, 2017, claimant reported pain at a level 3-5, 60-80% improvement in his overall activity level (with medication), and 70-90% improvement in his overall pain level (with medication).[15] The only exceptions were on June 5 and July 3, 2017, when claimant reported pain at a level 8.[16] Those two isolated incidents are insufficient to support a finding of disability on a continuing basis.

         The ALJ also did not ignore material evidence regarding claimant's cervical impairments. A November 21, 2016 MRI revealed the following changes in claimant's cervical spine:

C5-C6: Moderate-sized right paracentral and right lateral disc herniation is noted which appears to be impinging upon the right exiting nerve root. Overall, it produces mild central canal and moderate-marked right foraminal stenosis. No. left foraminal stenosis is seen.
C6-C7: Large left paracentral and left lateral disc herniation is present which impinges upon the left exiting nerve root. It also abuts the adjacent cord. No. right foraminal stenosis is seen.

Tr. 1077. The ALJ acknowledged those findings, and the fact that claimant underwent surgery on November 29, 2016, to fuse his cervical vertebrae.[17]

         Claimant nonetheless challenges the ALJ's finding that “[t]he record shows no evidence of any further treatment by Dr. Prevost [after the November 29 surgery], which clearly indicates his symptoms improved postoperatively.” It is true that the record does not contain any additional treatment notes from Dr. Prevost after the cervical surgery, but claimant testified that he did not return to Dr. Prevost because he lost his insurance coverage.[18] The ALJ should have taken into account claimant's loss of insurance and inability to afford additional treatment with Dr. Prevost. See Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (holding that “poverty excuses [a claimant's] noncompliance” with medical treatment) (alteration supplied). Even so, the ALJ's failure was, if anything, harmless error. Claimant's failure to seek additional treatment from Dr. Prevost was not the sole basis for the ALJ's decision. See Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (citing Dawkins, 848 F.2d at 1214) (holding 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.”) (emphasis supplied). Moreover, claimant was not completely without medical treatment after his cervical surgery, as he did continue to see Dr. Raquib. As discussed above, claimant reported only mild to moderate pain to Dr. Raquib, and he described significant improvement in his overall pain and activity levels.

         Overall, the record does not reflect that the ALJ “cherry-picked” pieces of record evidence that would support a decision to deny claimant's disability claim. To the extent that the ALJ did not explicitly discuss certain pieces of evidence, that evidence was not material to the decision.


         Claimant next asserts that the ALJ improperly evaluated the opinions of Dr. Prevost, his orthopedic surgeon. 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. 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 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).

         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). 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.”).

         Dr. Prevost provided a “Sworn Statement” on August 26, 2016, during the time period when claimant had re-injured his back after his second lumbar spinal surgery, was undergoing a series of three epidural steroid injections, and anticipated a third lumbar surgery if the injections were not effective.[19] Dr. Prevost testified that “[t]here is no way this gentleman could work at this point. And probably it's not good given the fact that he's had two surgeries and now looking at a third surgery and still has issues in his spine even if we fix that.”[20] He also testified that there was “no way” claimant would ever again be able to work eight hours a day at any job.[21] The ALJ gave Dr. Prevost's statement little weight because it was not supported by the doctor's own records, and there was no explanation for the inconsistencies between the opinion and the records.[22] The ALJ also stated:

The longitudinal records of Dr. Prevost and Dr. Raquib reveal the claimant's symptoms improved with surgery, treatment, and medication. Moreover, a review of the treatment notes simply do not [sic] show that they ever provided the claimant with any restrictions regarding his work activity or daily activities. Additionally, the undersigned notes that these are merely conclusory opinions with no evidence they have any specific vocational training or expertise, concerning an issue, which is reserved to the Commissioner . . . .

Tr. 19-20.

         The ALJ adequately articulated her reasons for rejecting Dr. Prevost's conclusory assessment that claimant could not work, and her decision was supported by substantial evidence. Dr. Prevost's treatment records reveal that claimant suffered from lumbar and cervical pain that required three separate surgeries, but the mere fact that claimant had lumbar and cervical disc impairment, or even that he underwent surgery, does not establish his disability. Instead, the relevant consideration is the effect of claimant's impairment, or combination of impairments, on his ability to perform substantial gainful work activities. See 20 C.F.R. § 404.1505 (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.'”) (alteration supplied) (quoting Heckler v. Campbell, 461 U.S. 458, 459-60 (1983)). Dr. Prevost's records do not indicate that claimant actually suffered disabling functional impairments as a result of his conditions and surgeries.


         Claimant also argues that the ALJ improperly considered the opinion of Dr. Raquib, his primary care physician. Dr. Raquib provided a “Sworn Statement, ” similar to Dr. Prevost's statement, on January 15, 2018. He responded to the questions of claimant's attorney as follows:

Q. [Claimant] cannot sit, stand, or walk for any long periods. He can only sit for maybe, at the most, 30 ...

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