Nelson v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

PAMELA NELSON, )

)

Claimant, )

)

vs. ) Civil Action No. 4:19-CV-01560-CLS

)

ANDREW SAUL, Commissioner, )

Social Security Administration, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Pamela Nelson commenced this action on September 19, 2019, pursuant to 42

U.S.C. § 405(g), seeking judicial review of a final adverse decision of the

Commissioner of the Social Security Administration, affirming the decision of the

Administrative Law Judge (“ALJ”) and, thereby, denying her claim for disability and

disability insurance benefits.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. See Lamb v.

Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253

1 Doc. no. 1 (Complaint).

(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: (1) the Appeals Council inappropriately failed to consider new

evidence; (2) the ALJ failed to accord proper weight to the opinion of Dr. Rickless,

the examining physician assigned by the Commissioner; and (3) the ALJ failed to

consider claimant’s testimony regarding the side effects of her pain medication.’

Upon review of the record, the court concludes that those contentions lack merit, and

the Commissioner’s ruling is due to be affirmed.

I. DISCUSSION

A. Appeals Council Did Not Fail to Review New Evidence.

Claimant first argues that the Appeals Council inappropriately failed to

consider new evidence.

When a claimant submits new evidence to the AC [i.e., the Appeals

Council], the district court must consider the entire record, including the

evidence submitted to the AC, to determine whether the denial of

benefits was erroneous. Ingram [v. Commissioner of Social Security

Administration], 496 F.3d [1253,] 1262 [(1 1th Cir. 2007)]. Remand is

appropriate when a district court fails to consider the record as a whole,

including evidence submitted for the first time to the AC, in determining

whether the Commissioner’s final decision is supported by substantial

evidence. /d. at 1266-67. The new evidence must relate back to the

time period on or before the date of the ALJ’s decision. 20 C.F.R. §

* See doc. no. 9 (Brief in Support of Disability), at 3.

404.970(b).

Smith v. Astrue, 272 F. App’x 789, 802 (11th Cir. 2008) (alterations and emphasis

supplied). Moreover, new evidence should be considered if there is a reasonable

possibility that it would have changed the administrative result. Washington v. Social

Security Administration, Commissioner, 806 F.3d 1317, 1321 (11th Cir. 2015).

Claimant submitted four new treatment records to the Appeals Council: (1)

records from an October 31, 2018 visit to the Lincoln Family Practice; (2) an

independent medical examination performed by Dr. Jane Teschner on January 21,

2019; (3) February 25, 2016 records from Advanced Imaging; and (4) records from

Neurological Specialists dated November 7, 2018, and December 4, 2018.3 The

Appeals Council found that the medical records from Advanced Imaging did “not

show a reasonable probability that [they] would change the outcome of the decision.”4

The Appeals Council declined to review the other medical records because they were

dated after the ALJ’s September 5, 2018 decision, and they did not relate to the

period at issue. Therefore, they did not affect the decision about whether claimant

was disabled during the period before the ALJ’s decision.5

3 For summary of the new evidence, see id. at 4-8. See also doc. no. 7-3 (Administrative

Record), at 68-74 (Lincoln Family Practice records); id. at 60-67 (Dr. Teschner’s Independent

Medical Examination); id. at 75-81 (Advanced Imaging records); and doc. no. 7-4 (Administrative

Record), at 82-93 (Neurological Specialists records).

4 See doc. no. 7-3 (Administrative Record), at 2 (alteration supplied).

5 Id.

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Claimant argues that the Appeals Council did not properly consider whether,

despite being conducted after the ALJ’s decision, the medical evaluations were

chronologically relevant to claimant’s disability.6 However, claimant does not bother

to state the ways in which the medical records were, in fact, chronologically relevant

to her disability. Claimant’s entire argument consists of block quotes from allegedly

similar cases with no application to the facts in the present case.7 For such reasons,

the Commissioner argues that claimant failed to develop and, therefore, waived her

argument that the Appeals Council did not properly consider her new evidence.8 See,

e.g., National Labor Relations Board v. McClain of Georgia, Inc., 138 F.3d 1418,

1422 (11th Cir. 1998) (holding that “[i]ssues raised in a perfunctory manner . . . are

generally deemed to be waived”); Sanchez v. Commissioner of Social Security, 507

F. App’x 855, 856 n.1 (11th Cir. 2013) (holding claimant waived arguments by not

expressly challenging ALJ’s findings); Morgan v. Social Security Administration,

Commissioner, No. 4:17-cv-01148-ACA, 2019 WL 1466259, at *3 (N.D. Ala. Apr.

3, 2019) (noting that claimant’s argument that block quoted some court decisions and

briefly summarized another, but did not identify any specific alleged error with the

ALJ’s decision gave “neither the Commissioner nor the court any guidance about

6 Doc. no. 9 (Brief in Support of Disability), at 24-34.

7 See id.

8 See doc. no. 10 (Brief in Support of Commissioner), at 5-7.

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[claimant’s] argument aside from the fact that she asserts the existence of an error”)

(alteration supplied); Brown v. Berryhill, No. 4:17-cv-1324-CLS, 2018 WL 5024086,

at *8 (N.D. Ala. Oct. 17, 2018), aff’d sub nom. Brown v. Social Security

Administration, Commissioner, 770 F. App’x 1014 (11th Cir. 2019) (noting that

plaintiff had “not made any actual argument regarding why the Appeals Council

should have made a different decision. Instead, she simply summarizes the new

evidence provided to the Appeals Council and includes block quotes from several

cases. That is insufficient to carry claimant’s burden of demonstrating error in the

ALJ’s decision”).

Even when confronted with the deficiency of her argument, claimant makes no

attempt to correct her error in her reply brief, but simply asserts that she “has not

waived this argument as claimed by the Commissioner.”9 Even so, this court

reviewed the new evidence for chronologically relevant material, and found none.

There is no indication that any of the records relate back to the time period before the

ALJ’s decision.10

Moreover, even if the evidence was chronologically relevant, it was not

9 Doc. no. 11 (Reply in Support of Disability), at 7.

10 Dr. Teschner’s report states that she reviewed medical records provided to her by

claimant’s attorney, and that those records were “given consideration in the overall of [claimant’s

fitness for work,” but she also evaluated claimant’s physical presentation at the time and assesses

all of the evidence together for her recommendation. See doc. no. 7-3 (Administrative Record), at

63, 66.

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material because it is unlikely that it would change the outcome of the

Commissioner’s decision. Aside from a new diagnosis of carpal tunnel syndrome by

Dr. Seth G. Spotnitz,11 the new medical records reflect similar symptoms, examination

findings, and mobility and pain levels as those recorded in the records submitted to

the ALJ. Accordingly, the Appeals Council did not err in its consideration of the

additional medical records submitted on appeal. Even if the Council did err, any such

error was harmless.

B. ALJ Accorded Proper Weight to Dr. Rickless’s Opinion.

Claimant next argues that the ALJ failed to accord proper weight to the

opinions of Dr. Morton Rickless, the examining physician assigned by the

Commissioner.12 Social Security regulations provide that, in considering what weight

to give any medical opinion (regardless of whether it is from a treating or consultative

physician), the Commissioner should evaluate: the extent of the examining or

treating relationship between the doctor and patient; whether the doctor’s opinion is

consistent with the record as a whole; the doctor’s specialization; and other factors.

See 20 C.F.R. § 404.1527(d). See also Wheeler v. Heckler, 784 F.2d 1073, 1075

(11th Cir. 1986) (“The weight afforded a physician’s conclusory statements depends

11 See doc. no. 7-4 (Administrative Record), at 84.

12 Doc. no. 9 (Brief in Support of Disability), at 34-44.

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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. Rickless examined claimant at the request of the Administration on October

31, 2016, a little over two months after claimant’s August 10, 2016 neck surgery to

remove the anterior plate and screws from her prior surgery.13 At the examination,

claimant “presented wearing a lumbar brace” and complained “of back pain and loss

of motion.”14 Dr. Rickless found during examination that claimant’s motion was

limited, but her muscle strength was normal except for slightly weakened grip

strength in her right hand (4/5).15 “Dr. Rickless also reiterated that the claimant

presented with a picture of chronic neck and back pain indicative of failed neck and

back surgery which appeared different or somewhat different from what was

indicated in her treatment records.”16 The ALJ assigned significant weight to Dr.

Rickless’s “examination narrative and range of motion findings,” but gave little

weight to “his medical source statement with partial functional assessment” because

the “examination was conducted only 2-3 months following the claimant’s neck

surgery,” and “Dr. Rickless noted inconsistencies between the claimant’s clinical

13 Doc. no. 7-3 (Administrative Record), at 18.

14 Id.; see also doc. no. 7-12 (Administrative Record), at 511.

15 See doc. no. 7-12 (Administrative Record), at 515, 518-19.

16 See doc. no. 7-3 (Administrative Record), at 19.

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presentation and the indications of improvement reflected in her treatment records.”17

Without identifying any specific alleged error, claimant argues that the ALJ

substituted her own judgment for that of the consulting physician.18 The

Commissioner again argues that this failure to make any specific argument constitutes

waiver.19 Claimant makes no attempt to correct this waiver in her reply.20

Accordingly, this argument is deemed waived.

Even if claimant had not waived her argument, it would fail. Claimant appears

to argue, primarily through the use of block quotes, that this case is either like

McClurkin v. Social Security Administration, 625 F. App’x 960 (11th Cir. 2015), in

which the ALJ failed to state with clarity the reasons for discounting part of the

physician’s report, or like Wilder v. Chater, 64 F.3d 335 (7th Cir. 1995), in which the

ALJ failed to credit the opinion of the consulting physician when it was “the only

medical evidence in the case.” Id. at 337. Those arguments fail. The ALJ in this

case states specifically the weight assigned to Dr. Rickless’s report and explicitly

assigns it less weight only where it disagrees with the other available medical

evidence.21 These circumstances cannot compare to situations where the ALJ failed

17 Id. at 20-21.

18 See doc. no. 9 (Brief in Support of Disability), at 34.

19 See doc. no. 10 (Brief in Support of Commissioner), at 14.

20 See doc. no. 11 (Reply in Support of Disability), at 7-13.

21 See doc. no. 7-3 (Administrative Record), at 20-21.

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to explain the reasoning at all, or where the consulting physician provided the only

medical evidence. Accordingly, the ALJ did not err in assigning less weight to a

portion of the consulting physician’s report.

C. The ALJ Did Not Fail to Consider Claimant’s Testimony Concerning the

Side Effects of Her Pain Medication.

Claimant’s final argument is that the ALJ failed to adequately consider

claimant’s testimony concerning the side effects of her medication.22 As part of

evaluating how claimant’s symptoms affect her ability to work, the ALJ must also

consider the effectiveness and any side effects of medications claimant takes to treat

those symptoms. See Walker v. Commissioner of Social Security, 404 F. App’x 362,

366 (11th Cir. 2010) (citing 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv)).

Claimant alleges that the ALJ made a finding that claimant was prescribed a

medication that caused adverse side effects, but “did not consider or discuss how the

medications affected [claimant’s] ability to work.”23 During the hearing before the

ALJ, claimant testified that the pills she was prescribed for depression made her want

“to do stupid stuff”: i.e., commit suicide.24 Claimant no longer takes that

medication.25 Claimant also testified that the pain medication she was originally

22 See doc. no. 9 (Brief in Support of Disability), at 44-46.

23 Id. at 44 (alteration supplied).

24 Doc. no. 7-3 (Administrative Record), at 53.

25 See id.

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prescribed had adverse side effects, including stomach pains, headaches, and

hallucinations, so she no longer takes it on a regular basis.26

The ALJ stated in her decision that a “doctor gave [claimant] medication for

depression, but it had adverse side effects.”27 The ALJ also noted the side effects

caused by claimant’s pain medication.28 However, because claimant no longer takes

the pain or depression medications, the ALJ noted that “[t]here is no evidence of

persistent adverse side effects from any prescribed medications.”29 The record shows

that the ALJ did evaluate whether claimant experienced adverse side effects for any

medication she was currently taking, and concluded that there was none. Therefore,

the ALJ did not fail to consider claimant’s testimony regarding the side effects of her

past medication.

II. CONCLUSION

The court concludes that the ALJ’s decision was based upon substantial

evidence and in accordance with applicable legal standards. Accordingly, the

decision of the Commissioner is AFFIRMED. Costs are taxed against claimant. The

26 See id. at 50.

27 Id. at 16.

28 See id. at 16.

29 Id. at 20. The ALJ also did not find claimant’s depression to be a severe impairment. Id.

at 14 (“The claimant’s medically determinable mental impairment of depression does not cause more

than minimal limitation in the claimant’s ability to perform basic mental work activities and is

therefore nonsevere.”).

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Clerk is directed to close this file.

DONE and ORDERED this 15th day of July, 2020.

ys United States District Judge

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