United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION
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.
II.
PHYSICIAN OPINIONS
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 ...