Fuller
v.
Berryhill

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISIONJul 31, 2018
No. 5:17-cv-204-MTT-CHW (M.D. Ga. Jul. 31, 2018)

No. 5:17-cv-204-MTT-CHW

07-31-2018

BRENNA M. FULLER, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


Social Security Appeal

REPORT AND RECOMMENDATION

This is a review of a final decision of the Commissioner of Social Security denying Plaintiff Brenna M. Fuller's application for benefits. Because substantial evidence supports the Commissioner's decision, it is RECOMMENDED that the Commissioner's decision be AFFIRMED.

BACKGROUND

Plaintiff applied for Social Security benefits in late 2013 (Exs. 1D, 2D), alleging disability beginning on December 31, 2008. (R. 297). Plaintiff alleges disability due primarily to pain in her lower back and right leg stemming from a motor vehicle accident. (R. 310). The record indicates that Plaintiff may also suffer from weakness, stiffness or tingling in her upper extremities. See (R. 320-21). After Plaintiff's application for benefits was denied initially and on reconsideration at the state-agency level (Exs. 1A-8A), Plaintiff sought further review before an Administrative Law Judge ("ALJ").

At a hearing before the ALJ on January 15, 2016, Plaintiff testified that she was able to work part time stocking magazines three days a week, for two hours each day. (R. 303-04). But see (R. 478) (indicating Plaintiff worked 16 hours per week). Plaintiff also testified that she had applied to become a foster parent. (R. 302-03). With regard to her functional limitations, Plaintiff testified that she could sit for 20 to 45 minutes at one time and could stand for at least 15 minutes at one time. (R. 316).

On February 26, 2016, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. (R. 277-89). The ALJ noted that despite Plaintiff's alleged onset date of December 2008, the earliest available medical evidence in this case dated from October 2010. (R. 281). The ALJ further noted that Plaintiff's part-time work earnings had steadily increased from 2011 to 2014, ending "just below the level of presumptive substantial gainful activity." (R. 279-80, 454). The ALJ concluded that Plaintiff's treatment was "essentially routine and/or conservative in nature," consisting primarily of medications, physical therapy and home exercises. (R. 284, 287). For this reason, the ALJ discounted statements by Dr. Harvey Jones, a treating internist, indicating that Plaintiff was incapable of performing even sedentary work.

Plaintiff subsequently sought review before the Appeals Council, to whom Plaintiff submitted additional evidence. In particular, Plaintiff submitted a form from Dr. Kim Johnston, a neurosurgeon, suggesting that Dr. Johnston agreed with the functional limitations proposed by Dr. Jones in an earlier report dated January 13, 2016. See (R. 8-14). Notwithstanding Plaintiff's new evidence, the Appeals Council denied review in Plaintiff's case on April 4, 2017, finding that Dr. Johnston's form was "about a later time." (R. 2).

Plaintiff now seeks review before this Court pursuant to 42 U.S.C. § 405(g). Plaintiff argues (1) that the ALJ by discounting Dr. Harvey Jones's opinion, (Doc. 8-1, pp. 13-14), and (2) that the Appeals Council erred by failing to remand Plaintiff's case in light of the new evidence from Dr. Kim Johnston. (Doc. 8-1, pp. 14-16). Because the record supports neither of Plaintiff's arguments, and because substantial evidence supports the Commissioner's decision, it is recommended that Plaintiff's case be affirmed.

STANDARD OF REVIEW

Judicial review of a decision of the Commissioner of Social Security is limited to a determination of whether that decision is supported by substantial evidence, as well as whether the Commissioner applied the correct legal standards. Winschel v. Comm'r, 631 F.3d 1176, 1178 (11th Cir. 2011). "Substantial evidence" is defined as "more than a scintilla," and as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Eleventh Circuit has explained that reviewing courts may not decide the facts anew, reweigh the evidence, or substitute their judgment for that of the Commissioner. Id. Rather, if the Commissioner's decision is supported by substantial evidence, the decision must be affirmed even if the evidence preponderates against it.

EVALUATION OF DISABILITY

Social Security claimants are "disabled" if they are unable to engage in 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. 42 U.S.C. § 423(d)(1)(A).

The Social Security Regulations outline a five-step sequential evaluation process for determining whether a claimant is disabled: "(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of impairments; (4) based on a residual functional capacity ("RFC") assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's RFC, age, education, and work experience." Winschel, 631 F.3d at 1178 (11th Cir. 2011) (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v)).

MEDICAL RECORD

Plaintiff claims to suffer from disabling pain in her lower back and right knee associated with a motor vehicle accident in 2008. See (R. 671). The earliest available medical records, however, date from October 2010. Those records show a normal lumbar-spine screen. (R. 554-55, 565). Lumbar, thoracic and cervical-spine screens from December 2013 similarly show normal findings. (R. 561-63). Beginning in December 2013, Plaintiff treated with Dr. Harvey Jones, an internist. (R. 660-64). Dr. Jones characterized most of his objective findings as "trivial," (R. 664), but based on Plaintiff's reported medical history and subjective symptoms, Dr. Jones concluded that Plaintiff was "disabled since 2008." (R. 664).

In February 2014, medical sources at First Choice Primary Care instructed Plaintiff to seek an orthopedic evaluation based on her persistent reports of chronic back and neck pain, as well as new symptoms of paresthesia of the shoulders and upper arms. (R. 537-39). In March 2014, Plaintiff sought treatment at the Coliseum Northside Hospital for back pain. (R. 516, 560). Medical imaging revealed mild disc-space narrowing at the L5-S1 site, mild lumbar facet arthropathy, and minimal spondylosis at the thoracolumbar junction. (Id.).

In April 2014, Plaintiff sat for a consultative examination with Dr. Alton Greene. (Ex. 2F). Dr. Greene noted that Plaintiff was able to work part time as a merchandiser, the she could independently dress and feed herself, that she drove a car, that she could clean, shop and climb stairs "[i]n short intervals," and that Plaintiff could stand, walk, and sit for 20 minutes each at a time. (R. 518). Dr. Greene diagnosed Plaintiff with lumbago, but found that Plaintiff had "no physical, manipulative, visual, or communicative limitations." (R. 519).

In contrast to Dr. Greene's findings, Dr. Harvey Jones completed an RFC questionnaire in June 2014, in which he found: that Plaintiff's symptoms would constantly interfere with her attention and concentration; that Plaintiff was only able to walk one city block without rest or significant pain; that Plaintiff could only sit for 45 minutes at one time, and for only 2 hours total during an 8-hour workday; that Plaintiff could only stand or walk for 5 minutes at a time, and for only 1 hour total during an 8-hour workday; and that Plaintiff would likely miss work more than four times per month due to her medical impairments. (R. 525-26). The record indicates that Dr. Jones did not have before him Plaintiff's records from the Coliseum Northside Hospital when completing this June 2014 RFC questionnaire. (R. 656).

Additional 2014 medical records from First Choice Primary Care show that Plaintiff was prescribed Baclofen and was encouraged to seek chiropractic care for her ongoing back pain. (R. 532, 534). It is not clear that Plaintiff sought chiropractic care, but Plaintiff did undergo physical therapy, primarily for complaints associated with right-knee pain. (R. 579-94). A February 2015 MRI of Plaintiff's right knee revealed few abnormal findings. (R. 605).

In November 2014, Plaintiff sought treatment with Dr. Cherinor Sillah. (R. 573-75). Based on Plaintiff's continued reports of back pain, Dr. Sillah provided Plaintiff with a trigger-point injection and instructed Plaintiff to continue her medication regimen and to perform a home exercise program. (R. 575). Plaintiff declined a second trigger-point injection at a follow-up appointment with Dr. Sillah in January 2015. (R. 572).

Also in January 2015, Plaintiff sought follow-up care from Dr. Harvey Jones, who found that Plaintiff had symptoms of depression and bipolar disorder. (R. 653). Dr. Jones also reported a decline in Plaintiff's "physical difficulties," for which he prescribed a soft cervical collar, a thoraco-lumbar back brace, and a TENS unit. (R. 653-54). Contemporaneous records from First Choice Primary Care similarly show an "acute worsening of [Plaintiff's] chronic condition," which Plaintiff treated with Tramadol. (R. 635). After Dr. Jennifer Evans of First Choice Primary Care was able to review a February 2015 MRI of Plaintiff's lower back, however, Dr. Evans discontinued Plaintiff's Tramadol prescription. (R. 627, 633). That February 2015 MRI shows signs of only mild degenerative disc disease, mild narrowing of the right neural foramen, and a small disc protrusion, all at the L5-S1 site. (R. 633). A subsequent July 2015 record from Dr. Jones notes that Plaintiff was continuing to work part-time, although Dr. Jones concluded that Plaintiff was "not capable of continuing with gainful employment." (R. 649).

In October 2015, Plaintiff reported to First Choice Primary Care for medication refills, follow-up treatment relating to a sinus infection, and to complete an application to become a foster parent. (R. 618). A November 2015 treatment note from Dr. Jones states that Plaintiff was "still in intractable pain." (R. 647).

In January 2016, Dr. Jones completed another RFC questionnaire in which he stated that Plaintiff's prognosis was "[p]oor pending surgical evaluation." (R. 665). That surgical evaluation was conducted by Dr. Kim Johnston, a neurosurgeon. After an initial appointment in January 2016, Dr. Johnston ordered a new MRI study of Plaintiff's lumbar spine, which revealed "disk herniation ... producing impingement in the epidural nerve root." (R. 674). Based on this finding, Dr. Johnston stated that Plaintiff was "a candidate for a right L5-S1 microdiskectomy" procedure. (R. 674). The last record from Dr. Johnston available to the ALJ states that Plaintiff planned to talk with her husband about whether to undergo this procedure. (R. 674). Plaintiff subsequently submitted later records from Dr. Johnston to the Appeals Council. (R. 8-14, 251-64).

DISABILITY EVALUATION IN PLAINTIFF'S CASE

Following the five-step sequential evaluation procedure, the reviewing ALJ made the following findings in Plaintiff's case. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 31, 2008, her alleged onset date. (R. 279). At step two, the ALJ found that Plaintiff had the following severe impairments: "lumbar spondylosis; degenerative disc disease of the lumbar spine; right chondromalacia patella; spinal enthesopathy; non-allopathic lesion sacral; lumbago; [and] paresthesia of the left upper extremity." (R. 280). At step three, the ALJ found that Plaintiff's impairments did not meet or equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 280). Therefore, the ALJ assessed Plaintiff's RFC and determined that Plaintiff could perform light work with the following exceptions: "She can frequently climb ramps and stairs; never climb ropes, ladders or scaffolds; frequently balance, stoop, crouch, and kneel, but never crawl." (R. 280).

Based on this RFC finding, the ALJ determined at step four that Plaintiff was capable of performing her past relevant work as an Order Clerk and Collection Clerk. (R. 288). Alternatively, the ALJ also found at step five that Plaintiff could adjust to other sedentary work, and specifically, that Plaintiff could perform the requirements of the following representative occupations: Information Clerk, Dispatcher, and Telephone Order Clerk. (R. 288). As a result, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act.

ANALYSIS

Plaintiff raises two grounds for relief. First, Plaintiff argues that the ALJ erred by discounting the opinion of Dr. Harvey Jones, a treating internist. (Doc. 8-1, pp. 13-14). Second, Plaintiff argues that the Appeals Council should have remanded Plaintiff's case for the consideration of new evidence from Dr. Kim Johnston, a neurosurgeon. (Doc. 8-1, pp. 14-16). The record supports neither of Plaintiff's grounds for relief, and accordingly, it is recommended that Plaintiff's case be affirmed.

In reference to Dr. Harvey Jones, Plaintiff cites Dr. Jones's January 2016 RFC questionnaire (Ex. 11F) in which Dr. Jones stated that Plaintiff:

• Could walk only one city block without rest or severe pain;
• Could continuously stand for only 15 minutes at one time;
• Could sit for only four hours, and could stand/walk for only two hours during an eight-hour workday;
• Would be absent more than three times per month;
• Suffered from constant severe pain that would constantly interfere with her attention and concentration; and
• Was "not going to be physically able to hold down full time work until [her symptoms were] corrected surgically."


(R. 670)

The ALJ assigned little weight to Dr. Jones's January 2016 opinion, and indeed to all of Dr. Jones's opinions, and substantial evidence supports the ALJ's decision to do so. As noted by the ALJ, Dr. Jones's findings appear to be based predominantly on Plaintiff's own reports of her subjective symptoms. (R. 283). Dr. Jones noted in his initial December 2013 treatment record, for example, that his objective findings were "trivial." (R. 664). Although Plaintiff does not challenge the ALJ's negative credibility finding, the ALJ determined that Plaintiff's subjective complaints of disabling pain were inconsistent with her activities of daily living, which included independent functioning and "robust" chores. (R. 287). The ALJ also cited Plaintiff's steadily increasing part-time job performance, and her decision to apply to become a foster parent in 2015, as inconsistent with a finding of disabling pain. (R. 286-87). Substantial evidence supports the ALJ's clearly articulated credibility finding. Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) ("A clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court"). Therefore, to the extent Dr. Jones relied upon Plaintiff's own report of her subjective symptoms, the ALJ properly discounted Dr. Jones's opinion.

In discounting Dr. Jones's opinion, the ALJ also cited the lack of supporting objective medical evidence elsewhere in the record. Specifically, the ALJ noted the lack of medical evidence from December 2008, Plaintiff's alleged onset date, through October 2010. (R. 281). The ALJ also noted the relative lack of medical evidence from 2011 and 2012. (R. 281). Regarding the medical evidence that was available, the ALJ cited MRI studies from 2010 and 2013 which showed few abnormal findings. (R. 281, 561-63, 565). The ALJ also reasonably concluded that Plaintiff's medical treatment was largely conservative. (R. 283). In this regard, the ALJ noted that Dr. Cherinor Sillah as well as Dr. Jennifer Evans of First Choice Primary Care treated Plaintiff by (a) instructing Plaintiff to maintain her medication regimen, and by (b) instructing Plaintiff to undergo physical therapy or to perform a home exercise regimen. (R. 284). The ALJ also partially credited findings from Dr. Alton Green, an examining physician who found that Plaintiff had no physical limitations. (R. 282-83). Finally, the ALJ noted that Plaintiff treated with Dr. Jones only at roughly six-month intervals for checkups. (R. 284).

A treating physician's opinion may be discounted for "good cause" which "exists when the: (1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records." Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). In this case, the ALJ concluded that Dr. Jones's statements regarding Plaintiff's functional ability were based upon Plaintiff's own subjective statements, were unsupported by objective medical findings, were inconsistent with Plaintiff's reported daily activities, and were also inconsistent with the overall medical record which revealed a history of conservative treatment. Because substantial evidence supports the ALJ's stated bases for discounting Dr. Jones's opinion, Plaintiff's first argument does not provide grounds for a remand.

Plaintiff's second argument relates to Dr. Kim Johnston, a neurosurgeon who began treating Plaintiff in January 2016, just before the ALJ issued his March 2016 opinion. The few records from Dr. Johnston before the ALJ show little apart from a finding that disk herniation at the L5-S1 site of Plaintiff's spine appeared to be "producing impingement in the epidural nerve root." (R. 674). "[T]he mere existence of ... impairments does not reveal the extent to which they limit [a claimant's] ability to work." Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005). Therefore, Dr. Johnston's January and February 2016 records are not sufficient to support a finding of disability, and indeed, Plaintiff does not argue that Dr. Johnston's records compelled a finding of disability by the ALJ.

Rather, Plaintiff argues that the Appeals Council erred by failing to remand Plaintiff's case for the consideration of later records from Dr. Johnston, submitted for the first time to the Appeals Council. Although several later records from Dr. Johnston are before the Court—the record shows, for example, that Plaintiff underwent a discectomy procedure in May 2016 (R. 255)—Plaintiff cites only one record which she claims warranted a remand by the Appeals Council. (Doc. 8-1, pp. 15-16). That record consists of a June 2016 single-question prompt in which Dr. Johnston indicated that she agreed with the functional limitations proposed by Dr. Jones in his January 2016 RFC questionnaire which was attached for Dr. Johnston's review. See (R. 8-14).

For two reasons, the Appeals Council did not err by declining to remand Plaintiff's case based on this later record from Dr. Johnston. First, the record itself consists only of a checkmark indicating "yes" in response to a prompt stating: "Do you agree with your professional colleague, Dr. Harvey Jones, that the limitations outlined on the enclosed form represent an accurate assessment of your patient's physical capabilities?" (R. 8). Dr. Johnston's checkmark is unsupported by any objective medical findings or comments, and it therefore fails to provide a sufficient basis to render erroneous the ALJ's rejection of Dr. Jones's underlying opinion. See, e.g., Williams v. Astrue, 2012 WL 1867634 at *6 (M.D. Ala. May 22, 2012) ("[f]orm reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best") (citing Mason v. Shalala, 994 F.2d 1058, 1065 (4th Cir. 1993)). Put differently, Dr. Johnston's June 2016 check-box form is not "material." See Hargress v. Comm'r, 883 F.3d 1302, 1309 (11th Cir. 2018).

Second, the Appeals Council rejected Dr. Johnston's June 2016 check-box record as "about a later time," (R. 2), and in this regard, substantial evidence supports the Appeals Council's decision. Although Social Security claimants may generally submit additional evidence at each stage of the administrative review process, the Appeals Council considers evidence not submitted to the ALJ only if that evidence "is new, material, and chronologically relevant." Hargress, 883 F. 3d at 1308-09. Nothing in Dr. Johnston's June 2016 check-box record suggests that Dr. Johnston reviewed Plaintiff's treatment records, as opposed to Dr. Jones's RFC questionnaire, from the relevant period before the ALJ's decision. Cf. Hargress, 883 F.3d at 1309 (discussing Washington v. Comm'r, 806 F.3d at 1322-23)). Similarly, nothing in Dr. Johnston's June 2016 record suggests that Dr. Johnston interviewed Plaintiff to assess Plaintiff's own description of her physical limitations during that earlier, relevant period. Id. Finally, Dr. Johnston's June 2016 form provides no basis for determining what symptoms, if any, Plaintiff suffered as a result of her May 2016 discectomy procedure.

Because Dr. Johnston's June 2016 check-box form does not address these points, the Appeals Council did not err by rejecting that form as chronologically irrelevant or "about a later time." Hargress v. Comm'r, 883 F.3d at 1309 (noting that the Appeals Council is "not required to give a ... detailed explanation" of its decision to deny review). Accord Ring v. Comm'r, 728 F. App'x 966, 968-69 (11th Cir. 2018). Accordingly, Plaintiff's second argument also does not provide grounds for a remand.

CONCLUSION

After a careful review of the record, it is RECOMMENDED that the Commissioner's decision be AFFIRMED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.

The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."

SO RECOMMENDED, this 31st day of July, 2018.

s/ Charles H. Weigle


Charles H. Weigle


United States Magistrate Judge