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Brown v. Berryhill

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

October 17, 2018

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


         Claimant, Kimberly Denise Brown, commenced this action on August 7, 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) failed to give appropriate weight to her testimony regarding pain and other subjective symptoms; (3) did not include all of her limitations in the hypothetical question to the vocational expert; (4) improperly considered her lack of medical treatment; (5) entered an unacceptably conclusory residual functional capacity finding; and (6) improperly considered her medication side effects. She also asserts that the Appeals Council improperly considered new evidence submitted after the ALJ's decision. 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 opinion 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.”).

         Dr. Odjegba submitted a “Physical Capacities Form” on July 25, 2014. He indicated that claimant could sit, stand, and walk for less than thirty minutes at one time. He expected claimant to need to lie down, sleep, or sit with her legs propped at waist level or above for four hours out of an eight-hour work day. He also stated that claimant's condition would last twelve or more months, and that the conditions causing her limitations included “back ache” and “lumbar disc disease.”[1] Dr. Odjegba attached to the Physical Capacities Form a copy of an MRI report of claimant's lumbar spine. The MRI revealed minor mutli-level degenerative disc disease but no distinct changes in disc height and no significant narrowing or other abnormalities.[2]

         The ALJ rejected Dr. Odjegba's evaluation because it was not supported by the medical evidence, including Dr. Odjegba's own treating records. Specifically, the ALJ stated that Dr. Odjegba's records

repeatedly reveal normal physical examinations of the claimant. For example, on June 10, 2014, Dr. Odjegba noted no edema and normal range of motion, muscle strength, and stability in the extremities with no pain on inspection. . . . Dr. Odjegba also ordered a[n] MRI, which revealed only minor degenerative joint disease in the lumbar spine, and he concluded that the claimant's lower extremity pain could, instead, be caused by anemia. . . . As noted above, the claimant's pain management records show that her pain is well controlled. In addition, when compliant with treatment, the claimant's hypertension and anemia are well controlled.

Tr. 97 (alteration supplied, record citations omitted).

         The ALJ's conclusion was in accordance with applicable law, because the ALJ considered whether Dr. Odjegba's opinion was consistent with the doctor's own records and other medical evidence. See Phillips, 357 F.3d at 1240-41. The ALJ's decision also was supported by substantial evidence. There is little evidence of any spinal injury, or any other medically determinable cause for limitations as severe as those imposed by Dr. Odjegba. Even the MRI report that Dr. Odjegba attached to his assessment revealed only mild degenerative joint disease and no other significant abnormalities. Moreover, Dr. Odjegba's treatment records revealed normal examination results, including negative straight leg raising test, lack of swelling and normal range of motion, muscle strength, and stability.[3] Dr. Odjegba also opined that claimant's leg pain could have resulted from her anemia, which was well controlled when she was compliant with treatment.[4]

         It is true that claimant regularly reported to her pain management doctor in 2015 and 2016 that she experienced back pain that increased upon exertion and improved with medication and rest. Her reported pain level varied from a 6 to a 9, but it improved anywhere from 60-90% with when she took her medication as prescribed, leaving the pain at only minimal levels.[5] In any event, though, claimant's subjective complaints to her physician regarding her level of pain do not constitute medical evidence of her condition.

         Finally, claimant attempts to pick apart the opinion of consultative examiner Dr. Sathyan Iyer, who stated on April 26, 2014, that claimant experienced no significant physical limitations but might experience difficulty driving because of decreased distant vision in her left eye.[6] Claimant asserts that Dr. Iyer's consultative opinion cannot constitute substantial evidence to override Dr. Odjegba's treating opinion because Dr. Iyer misstated the nature of claimant's ankle injury and did not review all the medical records regarding her heart condition. Those arguments are irrelevant, however, because the ALJ did not rely upon Dr. Iyer's assessment when he rejected Dr. Odjegba's assessment. In fact, the ALJ assigned only limited weight to Dr. Iyer's assessment because he concluded that claimant's vision impairment was minor and correctable, and because he believed that claimant did suffer some limitations as a result of her chronic pain syndrome, hypertension, and microcytic anemia.[7]


         Pain and Other Subjective Symptoms

         Claimant also asserts that the ALJ improperly considered her complaints of pain and other subjective symptoms. To demonstrate that pain or another subjective symptom renders her disabled, a claimant must “produce ‘evidence of an underlying medical condition and (1) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (2) that the objectively determined medical condition is of such severity that it can be reasonably expected to give rise to the alleged pain.'” Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991) (quoting Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). If an ALJ discredits subjective testimony of pain, “he must articulate explicit and adequate reasons.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986)).

         The ALJ in the present case properly applied these legal principles. She found that claimant's medically determinable impairments could reasonably have been expected to produce the symptoms claimant alleged, but that claimant's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible.[8] That conclusion was in accordance with applicable law. See Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“After considering a claimant's complaints of pain, the ALJ may reject them as not creditable, and that determination will be reviewed for substantial evidence.”) (citing Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984)) (emphasis supplied).

         The ALJ also adequately articulated reasons to support her findings. She reasoned that claimant's leg fractures appeared to have completely healed, that claimant was non-compliant with medications and follow-up treatment, and that she engaged in alcohol and tobacco use that might have exacerbated her conditions. The ALJ also observed that claimant's subjective complaints were not supported by the medical evidence, clinical findings, or objective medical testing, and that medications tended to provide significant relief for claimant's symptoms. The ALJ's conclusions were supported by substantial evidence of record.

         C. Vocational Expert Testimony

         Claimant also argues that the ALJ's decision was not supported by substantial evidence because the ALJ did not include of all her impairments in the hypothetical question posed to the vocational expert during the administrative hearing. See Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1180 (11th Cir. 2011) (quoting Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (per curiam)) (“‘In order for a vocational expert's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments.'”). Claimant did not identify any specific impairments that should have been included; instead, she generally asserts that the ALJ should have included all the impairments about which she complained. As discussed in the previous section, however, the ALJ properly discredited some of claimant's subjective complaints. She included in the hypothetical question only the limitations that she found were supported by the record. Accordingly, the ALJ's hypothetical question to the vocational expert was not defective.

         D. Lack of Medical Treatment

         The ALJ found that claimant had the severe impairments of chronic pain syndrome, hypertension, and microcytic anemia.[9] She did not find claimant's seizure disorder to be a medically determinable impairment, much less a severe impairment.[10]Claimant contests that finding because, she says, the ALJ improperly drew an adverse inference from her failure to seek additional medical treatment for her seizure disorder, despite the fact that she could not afford additional treatment.

         Claimant's brief quotes only part of the ALJ's discussion of her seizure disorder. The entirety of the ALJ's discussion is as follows:

[T]here does appear to be some indication of a small cerebrovascular accident approximately one year later [i.e., in 2015]. The claimant presented to the emergency department on June 25, 2015, alleging some seizure-like activity. Her blood pressure was elevated and a CT scan of the brain showed small intraparenchymal hemorrhage. . . . A MRI of the brain was consistent with the CT scan, showing the small right periventricular hemorrhage with no evidence of obvious ischemia and was otherwise normal. . . . At follow-up on June 6, 2015, the claimant stated that she did not want any testing done due to her concern about co-pays, but agreed to a CT scan, which showed that the hematoma resolved. . . . As there is no evidence of any residual symptoms or limitations, the undersigned finds the claimant's apparent cerebrovascular accident is a non-severe impairment. It is noted, however, that these symptoms have been considered in the evaluation of the severity of the claimant's hypertension, as the claimant attributed ...

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