LEFFLER

v.

COMMISSIONER OF SOCIAL SECURITY

THIS CAUSE is before the Court on Claimant’s appeal of an administrative decision denying her application for a period of disability and disability insurance benefits. In a decision dated February 6, 2019, the Administrative Law Judge (ALJ) found that Claimant had not been under a disability, as defined in the Social Security Act, from June 15, 2014, through the date of the decision. R.

33. The Appeals Council denied Claimant’s request for review on February 22, 2020. R.

1.

Having considered the parties’ joint memorandum and Claimant’s reply to the Commissioner’s response, the Court concludes that the Commissioner’s decision is due to be

AFFIRMED.

I. Issues on Appeal

Claimant makes two arguments on appeal: (1) the Appeals Council improperly rejected new and material evidence; and (2) the ALJ improperly evaluated Claimant’s pain testimony. Doc.

26.

II. Standard of Review

As the Eleventh Circuit has stated: In Social Security appeals, we must determine whether the Commissioner’s decision is supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner]. Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176, 1178 (11th Cir. 2011) (citations and quotations omitted). “With respect to the Commissioner’s legal conclusions, however, our review is de novo.” Lewis v. Barnhart, 285 F. 3d 1329, 1330 (11th Cir. 2002).

III. Discussion

A. Issue One: The Appeal’s Council’s Decision to Deny Claimant’s Request for Review

At step two of the sequential evaluation process, the ALJ must decide whether the claimant has a medically determinable impairment that is severe or a combination of impairments that are severe. 20 C.F.R. § 404.1520(c). In the instant case, the ALJ determined that Claimant has the following severe impairments: degenerative disc disease; low back pain; migraine headaches; photophobia; hearing loss with vertigo; hypertension; and partial incontinence. R.

25.

At step four of the sequential evaluation process, the ALJ found that Claimant had the residual functional capacity (RFC) to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) allowing for occasionally climbing ramps and stairs; no climbing ladders, ropes, and scaffolds; occasional balancing; frequent kneeling, crouching and crawling; and no work in unprotected heights or with moving mechanical parts. The claimant must avoid concentrated exposure to humidity, wetness, temperature extremes, vibrations, and noise. R.

28.

With respect to the migraine impairment, Claimant contends that the Appeals Council erred in its rejection of new and material evidence that her neurologist, Paul Krenzer, M.D., submitted after the ALJ’s decision was rendered. Doc.

26. A claimant is generally permitted to present new evidence at each stage of the administrative process. Ingram v. Comm'r of Soc. Sec., 496 F. 3d 1253, 1261 (11th Cir. 2007). The Appeals Council must consider evidence that was not presented to the ALJ when that evidence is new, material, and chronologically relevant. Id.; see 20 C.F.R. § 404.970(a)(5). A piece of evidence is new if it is not cumulative of other evidence in the record, see Robinson v. Astrue, 365 F. App'x 993, 996 (11th Cir. 2010), it is material if “there is a reasonable possibility that the new evidence would change the administrative outcome,” Hyde v. Bowen, 823 F. 2d 456, 459 (11th Cir. 1987), and it is chronologically relevant if it “relates to the period on or before the date of the [ALJ's] hearing decision,” 20 C.F.R. § 404.970(a)(5). The Appeals Council must grant the petition for review if the ALJ's “action, findings, or conclusion is contrary to the weight of the evidence currently of record.” Ingram, 496 F. 3d at 1261.

However, the Appeals Council has the discretion to refuse review of the ALJ's decision denying benefits. Washington v. Soc. Sec. Admin., Comm'r, 806 F. 3d 1317, 1320 (11th Cir. 2015).

If the Appeals Council considers new evidence but denies review, the Appeals Council is not required to articulate its reasons for denying review. Mitchell v. Comm'r, Soc. Sec. Admin., 771 F. 3d 780, 784-85 (11th Cir. 2014).

If a claimant challenges the Appeals Council’s denial, the reviewing court must determine whether the new evidence renders the denial of benefits erroneous. Id. at 785 (citing Ingram, 496 F. 3d at 1262).

Claimant states that her current attorney first reviewed the case after the ALJ’s decision and “the one thing that was noticeably absent from the record was a treating physician’s opinion about how much the migraines limited her ability to do work-related activities.” Doc. 26 at 32.

Accordingly, the attorney sent a Headache Medical Source Statement (the Statement) to Dr. Krenzer to be completed. Id. at 32. While the Statement dated March 22, 2019 was executed after the ALJ’s decision, Dr. Krenzer noted that the opinion covered 2016 (date of first treatment) through March 2019. R.

15.

The Statement allows the physician to indicate by checking a box that the intensity of the patient’s headaches is “severe – prevents all activity.” R. 15, 19. Dr. Krenzer checked this box along with other boxes indicating that Claimant’s symptoms associated with her headaches include nausea, phonophobia, photophobia, and vertigo. R.

15. Dr Krenzer also indicates on the Statement that bright lights and noise trigger the headaches, and bright lights worsen the headaches. R.

16.

Dr. Krenzer checked off that emotional factors contribute “somewhat” to the severity of Claimant’s headaches. R.

17.

Further, Dr. Krenzer opined in the Statement that Claimant’s impairments were expected to last for at least 12 months, and she had approximately 18 headaches per month typically lasting 24 hours. 15, 17. Dr. Krenzer further opined, by checking a box, that while having a headache,

Claimant would generally be precluded from performing even basic work activities and would need a break from the workplace. R.

17. Dr. Krenzer checked boxes indicating that Claimant would likely be off task 25% or more of the time while at work and her impairments would cause her to be absent from work 4 or more days per month. Id. The new attorney submitted the Statement to the Appeals Council as new evidence in support of the disability claim.

On February 22, 2020, the Appeals Council denied Claimant’s request for review and stated the following: You submitted headaches medical source statement signed by Robert Krenzer, dated 2016 to March 22, 2019 (5 pages).

We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence.

R. 2.

Claimant challenges the Appeals Council’s decision and describes Dr. Krenzer’s opinion as “new, relevant and material.” Doc. 26 at 29. Specifically, Claimant asserts that the Appeals Council erred because the ALJ’s RFC conflicts with Dr. Krenzer’s opinion in that the physician diagnosed Claimant with chronic daily headaches which “prevented all activity.” Id. at 33.

Turning to the ALJ’s decision, with respect to the migraine headaches, the ALJ found the following: As for migraine headaches and photosensitivity, the medical record is partially consistent with the subjective allegations. The claimant provided related medical evidence. This includes diagnoses for migraine headaches with ancillary vertigo, tinnitus, and hearing loss (See e.g.,¹ F/3; 7F/10).

The claimant admitted to ringing in the ears; vertigo; hearing loss; ear pain; ear pressure; and headaches (See e.g.,¹ F/3).

The vertigo was most likely related to migraines (1 F/5).

When she presented for a photophobia medical examination, she was wearing sunglasses (See e.g., F/10 (noting the examiner was unable to get a good look at the claimant due to the photophobia)).

This includes evidence about complaints and treatment, including Botox (ineffective) (See e.g., 7E; 2F/10); headache prescriptions like Topomax (See e.g., 1F/11); anticonvulsants; beta blockers; antidepressants; and Imitrex without benefit (See e.g., 7F/8, 11).

The claimant did not find vestibular rehabilitation “terribly helpful” (See e.g., 7F/8).

However, the totality of the record is more conservative than the allegations. In particular, the record shows unremarkable diagnostic brain studies (See e.g., 1F/10; 2F/26).

The claimant’s audiogram showed mild hearing loss in low frequencies to normal hearing in high frequencies (See e.g., 1F/5-6).

The claimant’s neurological examination was normal (See e.g., 7F/10).

Nerve conduction and balance tests were negative (See e.g., 8F/24).

The claimant’s eye examination was normal (See e.g., 3F).

Studies for dizziness noted enhanced dizziness and nausea on VNG subtests, however, overall the clamant had a normal VNG; there was no indication of central or peripheral vestibular pathology (See e.g., 1F/6).

In addition, clinical evidence documented the ability to hear a conversational voice; and normal ear, musculoskeletal and neurological examinations (See e.g., 1F/5; See also 2F.18 (hearing intact bilaterally)).

Treatment has also been quite conservative, generally involving little more than routine medications; lifestyle changes; and monitoring. For example, in January 2019, the claimant was advised to avoid migraine triggers such as anxiety, fatigue, stress, bright sunlight, cold, heat, and noise. She was also advised prevention methods such as stopping smoking; reducing caffeine and sugar; avoiding alcohol; improving sleep and eating habits; increasing water intake; and limiting the use of acute headache medications/overuse (See e.g., 13F/3).

The treatment record also shows that the claimant has more commonly denied or made no mention of the related allegations when speaking with her treating sources. For example, while admitting to balance loss, she denied tremors, seizures; speech difficulties; muscular weakness; tingling; and numbness (See e.g., 1F/4).

She also denied a roaring sound in the ears; ear discharge; and itching in the ears (See e.g., 1F/3. The medical evidence does not reflect related surgeries; extended inpatient treatment; hearing aids; or consistent/regular use of related neurologist, audiologists, physical therapists, or ENT specialists.

*** As for the opinion evidence, great weight is given to the state agency medical opinion by Harold Adelman, M.D., finding that the claimant is capable of a range of Light work (See 5A; 6A). This is persuasive. As a State agency source, this doctor had the advantage of program experience and familiarity with our standards and definitions. This opinion is also largely consistent with the medical record outlined above, including conservative objective medical evidence as well as the generally conservative clinical signs and treatment (See e.g., 1F/3, 10; 2F/18; 7F/10; 8F/11, 14, 24; 13F/2-3, 22, 30). Accordingly, this opinion is the basis for the RFC assessment.

R 30-31, 32.

Claimant states that she “believes the new evidence will change the outcome of the decision because it was noticeably absent when the ALJ assessed [her] residual functional capacity.” Doc. 26 at 29. Claimant’s argument largely centers on her comparison between Dr. Krenzer and Dr. Adelman’s opinions. Claimant states that the ALJ gave Dr. Adelman’s opinion “great weight” because it was “largely consistent with the medical record” discussed within the decision. Doc. 26 at 35.

However, now that Dr. Krenzer offers new evidence, Claimant contends that the RFC is no longer based on substantial evidence. Id. In the joint memorandum, Claimant argues that even if there is good cause to not give Dr. Krenzer’s opinion controlling weight as her treating physician, the ALJ would err to give greater weight to Dr. Adelman’s opinion as a non-examining physician. Id. at 36.

The Court finds that the record does not support this argument. While Claimant describes Dr. Krenzer as her treating physician in the joint memorandum, she concedes in her Reply that Dr. Krenzer was actually not her treating physician. Doc. 30 at 3. This is so because Dr. Krenzer only conducted one examination on June 16, 2016, approximately three years before he filled out the Statement.¹ A one-time examining physician’s opinion is not entitled to any specific weight or deference. See McSwain v. Bowen, 814 F. 2d 617, 619 (11th Cir. 1987); Huntley v. Soc. Sec. Admin, Comm’r., 683 F3d. Appx. 830, 832 (11th Cir. 2017) (“The [ALJ] need not defer to the opinion of a physician who conducted a single examination because that physician is not a treating physician.”).² In any event, by deciding that the Statement does not show a reasonable probability that it would change the outcome of the ALJ’s decision, the Appeals Council found that Dr. Krenzer’s opinion was not material. Taking into consideration that Dr. Krenzer examined Plaintiff, there is good cause to support this determination. First, Dr. Krenzer’s opinion on the form is cursory in nature and consists of checked boxed and fill-in-the-blank responses without accompanying explanations. For example, Dr. Krenzer checked that Claimant is incapable of even “low stress”

However, as the Commissioner points out, Dr. Krenzer’s notes from the June 16, 2016 visit state only that one of his colleagues saw Claimant in the past for headaches and there is no indication that he reviewed or had access to Dr. Crumble’s record. R.

478. There is no mention of Dr. Crumble. See id. Claimant’s speculations on the connection between Dr. Crumble and Dr. Krenzer’s records is not evidence.

Second, Dr. Krenzer’s opinion is not necessarily consistent with the 2016 examination notes. While the note does reflect phonophobia, photophobia, and vertigo, Claimant also presented at the examination as not being under distress, her neurological exam, gait, and posture were normal, and her speech, comprehension, and hearing were normal. R. 479-480. These findings do not support Dr. Krenzer’s opinion that Claimant is prevented from all activity especially in light of his terse and conclusory responses to the answers on the form.

Third, Dr. Krenzer only assessed Claimant on one occasion. His findings that Claimant’s headaches have no response to treatment and occur 18 days of the month for 24 hours at a time and are so severe as to prevent all activity are not substantiated elsewhere in the medical record. As the ALJ discussed at length, the totality of the record is more conservative. R.