United States District Court, N.D. Alabama, Northwestern Division
KERRY D. GILBERT, Plaintiff,
SOCIAL SECURITY ADMINISTRATION, the Commissioner, Defendant.
MEMORANDUM OPINION AND ORDER
C. BURKE UNITED STATES DISTRICT JUDGE.
the Court is the complaint of plaintiff Kerry D. Gilbert. In
his complaint, plaintiff seeks judicial review of an adverse
final decision of the Commissioner of the Social Security
Administration (“the Commissioner”) pursuant to
42 U.S.C. § 405(g). The Court has reviewed the pertinent
record and the parties' briefs.
the duty of the Court to review the decision of the ALJ and
not re-weigh the evidence or substitute its decision for the
ALJ's. In particular, the Court must affirm the ALJ's
decision if it is supported by substantial evidence even if
there is evidence that supports the opposite conclusion. The
Court must also determine whether the ALJ applied the correct
provide context for plaintiff's arguments and the
procedural history of this action, the Court briefly recounts
a portion of plaintiff's medical history. On September 5,
2013, a needle biopsy of a pancreatic mass indicated that
plaintiff had follicular lymphoma. (R. 480-84). Plaintiff
then underwent six cycles of chemotherapy that ended on
January 10, 2014. (Id. at 731). An electromyographic
study on June 23, 2014, of the upper and lower extremities
was abnormal and showed evidence for a sensory and motor
primarily axon loss polyneuropathy, common after
chemotherapy. (Id. at 546-48). A CT scan performed
on October 24, 2014, showed continued presence of the
pancreatic head mass with an interval decrease in size with
no evidence of recurrence. (Id. at 614, 617). On
March 3, 2015, during a consulting visit with a neurologist,
plaintiff reported painful neuropathy and other symptoms.
(Id. at 670-71). Additionally, the neurologic
examination demonstrated deficits referable to peripheral
motor and sensory nerves. (Id.). The neurologist
recommended a change in medication and a follow-up
on August 4, 2015, plaintiff had a PET scan that showed
peripancreatic and hepatic hilar masses that were intensely
FFDG avid and of concern for recurrent lymphoma.
(Id. at 691). A needle biopsy of the pancreatic head
on September 21, 2015, was consistent with follicular
lymphoma. (Id. at 695). Plaintiff then underwent
weekly Rituxan chemotherapy that ended on October 27, 2015,
and began maintenance Rituxan therapy beginning on November
25, 2015. (Id. at 731).
filed an application for a period of disability insurance
benefits (“DIB”) and supplemental social security
income (“SSI”) benefits on August 22, 2013,
alleging disability beginning on August 19, 2013. (R. 290,
294). Administrative Law Judge (“ALJ”) Mallette
Richey held a hearing on April 2, 2015, and issued an
unfavorable decision on July 14, 2015, finding that plaintiff
was not disabled. (Id. at 158-72). Plaintiff's
claim was then re-opened to consider new evidence and another
ALJ, Tresie Kinnell, held a hearing on December 2, 2015.
(Id. at 51). That ALJ issued another unfavorable
decision on February 5, 2016, finding that plaintiff was not
disabled. (Id. at 40).
appealed that decision to the Appeals Council. On September
26, 2016, the Appeals Council rendered a partially favorable
decision to plaintiff. (Id. at 177-83, 276-80).
Specifically, the Appeals Council found that plaintiff was
disabled as of August 4, 2015, because he met Listing
13.05(A)(1) due to a recurrence of lymphoma. (Id. at
278). The Appeals Council specifically stated that it
considered “additional evidence that [plaintiff]
submitted after the hearing decision was issued.”
(Id.). The Appeals Council later reopened its
September 26, 2016, decision because of a clerical error: the
record showed that plaintiff was insured for DIB only through
December 31, 2014, but did not become disabled until August
4, 2015. (Id. at 285-89).
the Appeals Council amended its decision and issued two
notices to plaintiff, one to address his application for SSI
and one to address his application for DIB. (Doc. 1-4, 7-14).
With respect to the DIB claim, on February 3, 2017, the
Appeals Council denied plaintiff's request for review
because, although it had determined that plaintiff was
disabled as of August 4, 2015, his DIB coverage had expired
on December 31, 2014. (Id. at 11). With respect to
the SSI claim, on February 1, 2017, the Appeals Council
vacated the ALJ's decision with respect to whether
plaintiff met a listing due to his lymphoma diagnosis.
(Id. at 11-13). Relying on the opinion of Dr. Gerald
Bell, M.D., the Appeals Council concluded that plaintiff met
Listing 13.05(A)(1) and was disabled as of August 4, 2015,
but not before that date, for purposes of SSI. (Id.
at 11-13, 281-83). Plaintiff then filed this action.
contends that the record reflects two errors. First,
plaintiff asserts that the Appeals Council failed to
articulate good cause for ignoring the opinions of Dr. Scott
Morgan, his treating oncologist. Second, plaintiff asserts
that the ALJ erred in assessing the credibility of
plaintiff's subjective complaints of pain due to
neuropathy. Plaintiff requests that the Court remand this
action with instructions to award benefits since September 5,
2013, or, alternately, reconsider, among other things,
whether plaintiff met Listing 13.05 and when. The Court will
address each of plaintiff's contentions in turn.
Opinions of Treating Physician Dr. Scott Morga
argues that the Appeals Council failed to articulate good
cause for ignoring the April 6, 2016, opinion of treating
physician, Dr. Morgan. Plaintiff argues that, although it was
in the record, the Appeals Council failed discuss the
opinions of Dr. Morgan contained in his April 7, 2016, sworn
statement; plaintiff also argues that the Appeals Council
failed to address Dr. Morgan's November 25, 2015, letter
regarding his functional status. In short, it appears that
plaintiff argues that the Appeals Council should have adopted
Dr. Morgan's conclusion in the April 7, 2016, sworn
statement that plaintiff met Listing
13.05(A)(2) as of September 5, 2013, the date of the
first needle biopsy. The Court will address the November 2015
open letter dated November 25, 2015, Dr. Morgan stated that
plaintiff was under his care for follicular lymphoma, and
that plaintiff was treated with chemotherapy that ended in
January 2014. (Id. at 703). Dr. Morgan also noted
that plaintiff had the side effects of neuropathy, chronic
weakness, and fatigue; that he was currently taking
medications to treat his neuropathy, but continued to have
significant pain in his lower extremities; and that these
side effects interfered with his daily living, although Dr.
Morgan provided no specific examples. (Id.). Dr.
Morgan also noted that plaintiff was being treated with
Rituximab every two months as a maintenance treatment.
(Id.). Notably, Dr. Morgan did not describe any
specific work-related limitations.
appears to take issue with the Appeals Council not directly
addressing the November letter when reviewing the ALJ's
February 5, 2016, decision. However, the Court notes that the
ALJ did address Dr. Morgan's letter in her February 5,
2016, decision, giving it “good weight.”
(Id. at 38). In fact, the ALJ found that Dr.
Morgan's assessment in the November letter was consistent
with the record evidence that showed plaintiff's
impairments, including some pain for neuropathy, do cause
some interference with his daily living, but that the
evidence did not show that the interference is debilitating.
(Id.). The Court finds that the ALJ did not commit
error in this assessment. The ALJ considered the November
letter and assigned it substantial weight, as she was
required to do. See Phillips v. Barnhart, 357 F.3d
1232, 1240 (11th Cir. 2004) (“The opinion of a treating
physician, such as Dr. Schatten, “must be given
substantial or considerable weight unless ‘good
cause' is shown to the contrary.”) (citation
omitted). Furthermore, the ALJ examined the record evidence
regarding plaintiff's complaints of neuropathy, but
determined that, while some limitations were warranted, the
pain was not wholly disabling. The fact that the Appeals
Council did not expressly mention the November letter - a
letter that was already assigned good weight by the ALJ - was
not error either. The Appeals Council stated that it had
considered the written record that was before the ALJ, which
included the November 25 letter. The record also shows that
Dr. Bell, who evaluated the evidence at the request of the
Appeals Council in May 2016, specifically considered the
November 25 letter. (R. 277, 282). Thus, the Court finds no
reversible error in this regard.
crux of plaintiff's argument appears to be that the
Appeals Council failed to discuss the April 7, 2016, sworn
statement of Dr. Morgan in its decision. (R. 747-72). In his
sworn statement, Dr. Morgan stated, among other things that,
he diagnosed plaintiff with indolent follicular lymphoma in
August 2013. (Id. at 756). Dr. Morgan noted that the
medication taken by plaintiff could cause side effects such
as neuropathy and that, in plaintiff's case, it
exacerbated his neuropathy. (Id. at 760-61). Dr.
Morgan confirmed that plaintiff saw a neurologist in June
2014 who conducted studies that showed polyneuropathy.
(Id. at 762). Dr. Morgan explained that, when he
indicated in this records that plaintiff's pain was
controlled, he meant that plaintiff was able to tolerate the
amount of problems that he had with medications.
(Id. at 765). Additionally, Dr. Morgan opined that
plaintiff was not able to work from August or September 2013
to the present. (Id. at 766-67). More specifically,
Dr. Morgan opined that plaintiff could not have worked during
his chemotherapy treatments because of acute side effects and
that he could not work long-term due to the side ...