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Clough v. Berryhill

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

May 17, 2019

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


         Claimant, Mark Clough, commenced this action on July 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 supplemental security income benefits. Claimant also filed a motion to correct the administrative record to include the September 12, 2017 evaluation of Dr. David Wilson.[1]

         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. 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. In addition to requesting a correction of the administrative record, claimant contends that the Appeals Council erroneously failed to review Dr. Wilson's report, and that the ALJ improperly considered the opinions of the treating and evaluating physicians.

         I. DR. WILSON'S SEPTEMBER 12, 2017 REPORT

         Dr. David Wilson performed a consultative psychological examination on September 12, 2017, after the ALJ's July 3, 2017 hearing decision. Claimant's attorney submitted a letter to the Appeals Council on October 20, 2017, stating claimant's reasons why the Appeals Council should overturn the ALJ's denial decision. That letter summarized Dr. Wilson's September 12, 2017 evaluation and argued that it should be considered as new and material evidence, [2] but claimant's attorney did not attach a copy of the evaluation, and the Appeals Council did not receive a copy by any other means. The Appeals Council considered claimant's letter but found that it did “not provide a basis for changing the Administrative Law Judge's decision.”[3] Accordingly, the Appeals Council denied claimant's request for review on May 14, 2018.[4]

         After appealing the Commissioner's final denial decision to this court, claimant filed a motion on February 19, 2019, to correct the administrative record by including a copy of Dr. Wilson's September 12, 2017 evaluation.[5] Claimant attached a copy of the evaluation to his motion, and that was the first occasion on which the evaluation was placed in this court's record.

         The Commissioner filed two responses to claimant's motion. First, on March 20, 2019, she filed a “Supplementation to Correct Administrative Record.”[6] Attached to that document is a “Supplemental Certification” signed by Michael Sampson, the Social Security Administration's Chief of the Court Case Preparation and Review Branch 3, Office of Appellate Operations. Sampson certified that “the document annexed hereto is a true and accurate copies [sic] of medical records from Gadsden Psychological Services/Dr. David Wilson which was inadvertently omitted from the administrative record in the case of Mark Shaun Clough, certified on August 11, 2018.”[7] The attachment to the Supplemental Certification included only the first page of Dr. Wilson's September 12, 2017 evaluation, even though the copy of the evaluation attached to claimant's motion is seven pages long.[8]

         The Commissioner filed a separate “Response in Opposition to Plaintiff's Motion to Correct the Record” on April 18, 2019, asserting that, because the Appeals Council received only one page of Dr. Wilson's September 12, 2017 evaluation, claimant failed to show that the entire evaluation was before the Appeals Council.[9]The Commissioner also argued that, even if the September 12, 2017 evaluation were considered in its entirety, it would not warrant remand pursuant to sentence six of 42 U.S.C. §405(g).

         This court entered an order on April 19, 2019, requiring claimant to file a reply brief by May 3, 2019, addressing “the Commissioner's assertions that only one page from Dr. Wilson's assessment was presented to the Appeals Council, and that remand is not warranted under sentence six of 42 U.S.C. §405(g).”[10] Claimant failed to comply with that order. Accordingly, claimant has not demonstrated that the entire September 12, 2017 evaluation ever was submitted to the Appeals Council. In other words, the copy of the administrative record certified to this court includes all of the pages that were received by the Appeals Council. Because there is no indication that the administrative record is incomplete, claimant's motion to correct the record will be denied.

         The substantive briefs claimant filed in support of his claim argued that remand was warranted because the Appeals Council failed to consider Dr. Wilson's September 12, 2017 assessment.[11] Because the Appeals Council never received the entire assessment, that argument is without merit. Additionally, because claimant failed to comply with this court's April 19 order, he has never asserted any substantive argument that remand is warranted for consideration of Dr. Wilson's entire report under sentence six of 42 U.S.C. §405(g). Accordingly, the court will not consider that argument. There has been no reversible error with regard to Dr. Wilson's assessment.


         Claimant also argues that the ALJ improperly considered the opinions of the consultative examining physicians. Social Security regulations provide that, in considering what weight to give any medical opinion, 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. § 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 a 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. § 416.927(d).

         A. Dr. Prince

         Dr. Daniel Prince conducted a consultative physical examination on August 31, 2012, and reviewed all of claimant's medical records. Claimant reported a history of epilepsy resulting in the loss of his driver's license, fractures of both legs from an automobile accident, and a broken back from a fall. The physical examination revealed sluggish reflexes in the legs, and straight leg raise tests were positive in the right leg but negative in the left. His cervical spine was nontender and fully mobile. There was mild deformity of the left clavicle, adequate shoulder mobility, and a grossly deformed left wrist, but grip and pinch strength were adequate. Claimant's lumbar flexion was reduced 35%, and he exhibited paraspinal muscle tenderness in the bilateral lower thoracic and upper lumbar areas. His hips were tender, with the right side worse than the left. Similarly, claimant experienced 40% impairment of his right hip mobility, but only 10-15% impairment of his left hip. His knees displayed slight crepitus but no fluid. His right leg extension was reduced by ten degrees, but his ankles and feet were normal except for some crepitus. Dr. Prince stated:

To me this is fairly simple. After interviewing the claimant and his girlfriend and reviewing the documents, it would make sense that he would falsify information regarding his history of seizures so that he could try to maintain a valid driver's license in the past.[12] He was never able to afford complete healthcare. He is lucky that he was able to do anything after his car accident in 2000 and because of the seizure and falling off a roof in 2009, breaking his back these are problematic issues regarding employment. [sic] The psychology evaluation plus the fact this man could not fill out his history form and had to depend on a girlfriend to do so add to his list of problems. He may be capable of sitting in a chair for short periods of time and doing certain things, but he does not have the intellectual functioning partly due to his lack of education, his lifestyle, and his epilepsy.

Tr. 454 (footnote supplied). Dr. Prince concluded that claimant experienced “[c]omplete, permanent, chronic and total disability secondary to residuals of multiple fractures, epilepsy, grand mal seizure activity, generalized anxiety disorder, and borderline intellectual function.”[13] Dr. Prince also completed a Physical Capacities Form. He stated that claimant could sit for forty-five minutes at a time, and for a total of two hours, during a work day. He could stand for fifteen minutes at a time, and for a total of one hour, and he could walk for six minutes at a time, and for a total of one hour. He could occasionally lift up to twenty pounds and occasionally carry up to ten pounds. He could occasionally use both arms and hands to push and pull, but he could never use his legs and feet for those functions. He could never squat, but he could occasionally bend, crawl, climb, and reach. He was moderately restricted from marked changes in temperature and humidity, and from exposure to dust, fumes, and gasses, and totally restricted from exposure to unprotected heights, moving machinery, and driving automotive equipment. He could occasionally use his hands for grasping, fine manipulation, fingering, and handling. His conditions would last twelve or more months.[14]

         The ALJ afforded Dr. Prince's assessment little weight. He observed that Dr. Prince's opinion about claimant's ability to work was a decision reserved to the Commissioner, and he concluded that Dr. Prince's overall assessment was “inherently less persuasive” because it was “solicited on behalf of the claimant's representative.”[15] The ALJ also reasoned that Dr. Prince's opinion was “remote and not consistent with the claimant's activities of daily living, work history, or the medical evidence of record.”[16]

         Claimant correctly points out that it is improper to reject a physician's assessment simply because the assessment was requested by the claimant's attorney. See Tavarez v. Commissioner of Social Security, 638 Fed.Appx. 841, 847 (11th Cir. 2016) (quoting Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998); Moss v. Astrue, 555 F.3d 556 (7th Cir. 2009)) (“‘[T]he mere fact that a medical report is provided at the request of counsel or, more broadly, the purpose for which an opinion is provided, is not a legitimate basis for evaluating the reliability of the report.'”) (alteration supplied). Even so, that was not the sole basis for the ALJ's rejection of Dr. Prince's assessment. The ALJ's conclusion about the inconsistency of Dr. Prince's opinion with the remainder of the record is supported by substantial evidence.

         B. Dr. Morgan

         Dr. Keith Morgan conducted a consultative physical examination on April 15, 2015. Claimant reported seizure disorder, back pain, and leg pain. Dr. Morgan's general examination findings revealed

a well-developed, well-nourished claimant who is cooperative and does not appear acutely ill. He does demonstrate pain behaviors during the examination, particularly with examination of the lumbar spine. His effort during this part of the examination was questionable at best. He is able to transfer independently. He was observed holding a pen without difficulty as he signed his name today. He is able to pick up a sheet of paper without difficulty using each hand.

Tr. 381. Claimant had full range of motion of the cervical and lumbar spine, but tenderness to palpation throughout the cervical and lumbar paraspinal muscles. He also had full range of motion in his bilateral upper and lower extremities, with no increased joint temperature, no ulnar deviation, and no varicosities, brawny edema, or claudication-like symptoms. His neurological examination was normal. Dr. Morgan assessed claimant as experiencing status-post motor vehicle accident with broken right femur and rod placement, epilepsy, and status post fractured back. Dr. Morgan concluded that claimant could only sit and stand for ten minutes each, walk for four to five minutes, travel for one hour, and lift and carry eight pounds for ten steps. All of his limitations were the result of lower back pain, and they were identical to the limitations claimant reported to Dr. Morgan at the beginning of the examination.[17]

         The ALJ afforded Dr. Morgan's assessment no weight, stating that “[t]he extreme restrictions assessed by Dr. Morgan are entirely inconsistent with the relatively benign findings noted on physical examination and are not consistent with the record as a whole.”[18] The ALJ also reasoned that Dr. Morgan's assessment did not support a finding of disability because claimant demonstrated normal gross and fine motor skills and normal musculoskeletal and neurological examinations. The ALJ found that claimant's allegations of pain were inconsistent with the record because his pain medications were effective at treating his symptoms.[19]

         Claimant asserts that the ALJ improperly substituted his opinion for Dr. Morgan's, but this court disagrees. To the contrary, the ALJ adequately articulated his reasons for rejecting Dr. Morgan's assessment, and his conclusions were in accordance with applicable law and supported by substantial evidence. In addition to the reasons articulated by the ALJ, this court notes that the restrictions imposed by Dr. Morgan seem to be based entirely upon claimant's subjective complaints, not upon any examination findings.

         C. Dr. Bentley

         Dr. Jack Bentley provided two consultative psychological assessments. The first assessment occurred on October 7, 2010. Claimant reported increased depression since breaking his back in August of 2009. He also experienced dysphoric mood, excessive anxiety, periodic panic attacks, and grief over his loss of lifestyle. Claimant had never received formal psychiatric treatment or taken medication to treat anxiety or depression. During the mental status ...

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