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Jurisdiction: Alabama Middle District Court
Decision Date: 6/11/2013

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Goldsby v. Colvin Goldsby v. Colvin (M.D. Ala., 2013)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MELINDA DELORA GOLDSBY, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CAROLYN W. COLVIN, Acting Commissioner of Social Security, 1 Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 2: 12-cv-151-CSC (WO)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Done: June 11, 2013

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MELINDA DELORA GOLDSBY, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 1 Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        1

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 2: 12-cv-151-CSC (WO)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Done: June 11, 2013

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM OPINION
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I. Introduction

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On April 9, 2009, the plaintiff, Melinda Delora Goldsby, filed a Title II application for a period of disability and disability benefits and a title XVI application for supplemental security income. (R. 135-146). Goldsby alleged a disability beginning on May 30, 2006. (R. 135-146). After the claims were initially denied, Goldsby requested and, on July 19, 2010, received a hearing before an administrative law judge ("ALJ"). (R. 9, 65). Following the hearing, ALJ Mary E. Helmer denied the claim on September 20, 2010. (R. 45). On December 29, 2011, the Appeals Council rejected a subsequent request for review. (R. 1). The ALJ's decision consequently became the final decision of the Commissioner of Social Security ("Commissioner"). See Chester v. Bowen, 792 F.2d 129 131 (11th Cir. 1986). The

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3). Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United States Magistrate Judge. Based on the court's review of the record in this case and the briefs of the parties, the court concludes that the decision of the Commissioner should be affirmed.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II. Standard of Review

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Under 42 U.S.C. § 423(d)(1)(A) a person is entitled to disability benefits when the person is unable to

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                To make this determination the Commissioner employs a five-step, sequential evaluation process. See 20 C. F. R. §§ 404. 1520, 416. 920.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        McDaniel v. Bowen, 800 F.2d 1026 1030 (11th Cir. 1986).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The standard of review of the Commissioner's decision is a limited one. This court must find the Commissioner's decision conclusive if it is supported by substantial evidence. Graham v. Apfel, 129 F. 3d 1420, 1422 (11th Cir. 1997); 42 U.S.C. § 405(g). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. " Richardson v. Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of the record which supports the decision of the ALJ, but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Walker v. Bowen 826 F.2d 996 999 (11th Cir. 1987).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III. The Issues

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A. Introduction. Goldsby was born on February 3, 1980, and was 30 years old at the time of the administrative hearing in this case. (R. 23, 137). She has some college education. (R. 12). She last worked on May 30, 2006, and she alleges that she stopped

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        working because she could no longer perform the physical requirements of her job as a nurse assistant. (R. 166). Her past employment history also includes work as a cashier and fast food cook. (R. 27). She alleges that she is disabled due to cardiomyopathy and peripheral edema in her legs. (R. 15, 24, 166).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        B. The Findings of the ALJ

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ found that Goldsby has the following severe impairments: obesity; hypertension; and cardiomyopathy. (R. 37). The ALJ stated:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (R. 37-38).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ concluded that Goldsby did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C. F. R. Part

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        404, Subpart P, Appendix 1. (R. 25).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ determined that Goldsby

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (R. 38-39).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ found that Goldsby "is able to return to her past relevant work as a cashier as it is generally performed in the national economy. " (R. 44). Therefore, the ALJ concluded that Goldsby is not disabled. (R. 44).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        C. Goldsby's Claims.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Goldsby presents the following issues for review:

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 12 p. 6).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        IV. Discussion

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        A. Substantial evidence supports the ALJ's finding that Goldsby's cardiomyopathy does not meet the listing in 20 C. F. R. 404, subpt. P, App. 1 § 4. 02.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Goldsby argues that the ALJ erred by failing to find that she had an impairment that met or equaled the listing for cardiomyopathy found in 20 C. F. R. 404, subpt. P, App. 1 § 4. 02. Goldsby contends that the ALJ relied "solely" on the opinion of a consulting physician, Dr. Anderson, who did not provide a detailed analysis of every individual element of the listing for cardiomyopathy found in 20 C. F. R. 404, subpt. P, App. 1 § 4. 02. (Doc. 12 p. 9). However, the ALJ did not rely "solely" on Dr. Anderson's opinion, and an ALJ does not need to "mechanically recite the evidence" of every element of a listing. Hutchinson v. Bowen 787 F.2d 1461 1463 (11th Cir. 1986). Where the ALJ's listing determination is not explicitly stated, it may be found implicitly in the ALJ's decision where the ALJ proceeds to steps three and four of the sequential evaluation process. Id. Accordingly, the court will consider both the explicit and implicit findings of the ALJ with respect to the listing requirements.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                At step three of the sequential evaluation process, the ALJ provided an explanation of her finding that Goldsby did not have an impairment or combination of impairments that met a listing. The ALJ stated:

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (R. 38).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The listing for cardiomyopathy, which the ALJ considered but did not mechanically recite, requires that objective medical evidence (as described in 20 C. F. R. 404, subpt. P, App. 1 § 4. 00(D)(2)) must document that, "while on a regimen of prescribed treatment, " the claimant suffers from chronic heart failure of such severity that the claimant has an "ejection fraction of 30 percent or less" and "persistent symptoms of heart failure which very seriously limit the ability to independently initiate, sustain, or complete activities of daily living. " 20 C. F. R. 404, subpt. P, App. 1 § 4. 02(A)(1) & (B)(1) (emphasis added). "For a

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify. " Sullivan v. Zebley, 493 U.S. 521, 530 (1990). In arguing that the ALJ failed to consider all the requirements of the listing, Goldsby herself does not address "all the specified medical criteria of the listing; " she only argues that testing revealed an ejection fracture of 30 percent or less, and she alleges that she has "persistent symptoms of heart failure that limit her ability to independently intiate, sustain, and complete daily activities. " (Doc. 12 p. 7). The listing, however, requires more.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                As Goldsby points out, her treating cardiologist analyzed the results of a March 1, 2010 echocardiogram and concluded that "the calculated left ventricular ejection fraction of 54% is clearly too high. The visually estimated left ventricular ejection fraction would be 25-30% . . . . The ejection fraction of 54% is clearly too high and the estimated ejection fraction is roughly 30-35%. " (R. 366). However, at steps four and five of the sequential evaluation process, the ALJ expressly concluded that the March 1, 2010 echocardiogram did not qualify as medical documentation of chronic heart failure "while on a prescribed treatment regimen. " 20 C. F. R. 404, subpt. P, App. 1 § 4. 02(A)(1) (emphasis added). As the ALJ explained:

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (R. 41-42 (emphasis in original)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Goldsby entirely fails to address the ALJ's conclusion, which is substantially supported by Dr. Anderson's testimony, that "echocardiogram testing had revealed ejection fractions of 30-35% without treatment. " (R. 41-42 (emphasis in original)). Accordingly, Goldsby has not met her burden to demonstrate that she meets the all the requirements of the

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        listing for cardiomyopathy. Sullivan, 493 U.S. at 530 (holding that, for a claimant "to show that his impairment matches a listing, the impairment must meet all of the specified medical criteria. "); see 20 C. F. R. 404, subpt. P, App. 1 § 4. 02 (setting forth the listing for "chronic heart failure while on a regimen of prescribed treatment, with symptoms and signs described in 4. 00D2" (emphasis added)); 20 C. F. R. 404, subpt. P, App. 1 § 4. 00(D)(2) ("What evidence of CHF do we need? a. Cardiomegaly or ventricular dysfunction must be present and demonstrated by appropriate medically acceptable imaging, such as . . . echocardiography. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Goldsby also argues that she meets the listing because she has "persistent symptoms of heart failure that limit her ability to independently initiate, sustain, and complete daily activities. " (Doc. 12 . 7). As medical evidence of symptoms that "limit" her ability to carry out her activities of daily living, Goldsby points to several medical records of events that occurred while she was not on, or not compliant with, her regimen of prescribed treatment. In August, 2000, two months after the birth of her only child, Goldsby was admitted to the hospital and was diagnosed with "new onset congestive heart failure secondary to postpartum cardiomyopathy. " (R. 235-238). With treatment, the congestive heart failure was resolved. (R. 268). Again in September 2000, she was treated for congestive heart failure; at that time her treating physician noted: "She has recurrent heart failure. She has been taking her medications, but has not been compliant with watching her weight and diet very carefully. She should improve rapidly. " (R. 289-90). These events that occurred in 2000, before the onset of disability in 2006, do not establish "chronic heart failure while on a regimen of

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        prescribed treatment. " 20 C. F. R. 404, subpt. P, App. 1 § 4. 02(A)(1) (emphasis added).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The medical evidence of congestive heart failure in 2000 also does not indicate "persistent symptoms of heart failure which very seriously limit the ability to independently initiate, sustain, or complete activities of daily living. " 20 C. F. R. 404, subpt. P, App. 1 § 4. 02 (B)(1) (emphasis added). "Persistent" as used in the listing "means that the longitudinal clinical record shows that, with few exceptions, the required finding(s) has been present, or is expected to be present, for a continuous period of at least 12 months, such that a pattern of continuing severity is established. " 20 C. F. R. 404, subpt. P, App. 1 § 4. 00 (A)(3)(b). As the ALJ noted in her opinion:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (R. 40).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Goldsby also points to medical records from February 4 and March 3, 2010, contending that these records also indicate that her cardiomyopathy creates persistent symptoms that very seriously limit her activities of daily living. However, the ALJ

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        considered these records and concluded otherwise:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (R. 41-42).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ also observed: "The office notes of the claimant's family practitioner, following his examination on February 4, 2010, contain his assessment that the claimant's alleged 'chest pain' looked more like gastroesophageal reflux disease. " (R. 42 n. 6; R. 344).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The court has independently reviewed the medical record, and it is consistent with the ALJ's summary and analysis of the medical evidence. Substantial evidence supports the ALJ's determination that medical records from February and May, 2010, do not indicate "persistent" heart failure symptoms that "very seriously limit" Goldsby's activities of daily living. 20 C. F. R. 404, subpt. P, App. 1 § 4. 02 (B)(1).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Goldsby also points to a June 9, 2009, function report in which she stated that she "wakes up during the night with chest pains and shortness of breath" and that she tires easily when performing her daily tasks. (R. 102). This subjective self-report is not the sort of medical documentation required to demonstrate persistent symptoms of heart failure that limit daily activities. 20 C. F. R. 404, subpt. P, App. 1 § 4. 00 (A)(3)(b) (defining "persistent" in terms of "that the longitudinal clinical record"); 20 C. F. R. 404, subpt. P, App. 1 § 4. 02 (requiring that symptoms and signs of chronic heart failure must be documented by objective medical evidence (as described in 20 C. F. R. 404, subpt. P, App. 1 § 4. 00(D)(2)). Further, as the ALJ noted, after 2005, Goldsby did not seek treatment for her heart condition until September 23, 2009. (R. 42). On September 23, 2009, her physician noted that Goldsby "used to take Lasix, Coreg, Spironolactone, and Warfarin before, and she stopped drugs in 2006. After that she did not have any primary cart physician. . . . Current medications: nil. " (R. 348). Accordingly, substantial evidence supports the conclusion that Goldsby's June 9, 2009 function report does not establish "persistent" heart failure symptoms that "very seriously limit" Goldsby's activities of daily living "while on a regimen of prescribed treatment. " 20 C. F. R. 404, subpt. P, App. 1 § 4. 02 (B)(1).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Finally, as evidence that her cardiomyopathy very seriously limits her daily activities, Goldsby points to her own subjective testimony of chest pain and pain and swelling in her legs. "Subjective pain testimony supported by objective medical evidence of a condition that can reasonably be expected to produce the symptoms of which the claimant complains

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        is sufficient to sustain a finding of disability. " Walker v. Bowen, 826 F.2d 996 1003-04 (11th Cir. 1987). Where there exists objective medical evidence of an impairment which could reasonably be expected to produce the claimant's symptoms, the ALJ must consider the claimant's subjective testimony and, if the ALJ rejects that testimony, the ALJ must articulate explicit and adequate reasons" for doing so. Cannon v. Bowen, 858 F.2d 1541 1545 (11th Cir. 1988); Hale v. Bowen, 831 F.2d 1007 1011 (11th Cir. 1987). The ALJ clearly articulated reasons for finding that the medical evidence did not support Goldsby's subjective testimony that her cardiomyopathy caused chest pain and edema that persistently interfered with her daily activities while on a treatment regimen. (R. 39-44 (noting, e. g that the medical record indicated gaps in treatment and noncompliance with treatment, repeated denials of chest pain and shortness of breath, treating physicians' observations that Goldsby had no edema, a primary care physician's attribution of chest pain to gastrointestinal reflux disease, the treating cardiologist's finding that Goldsby had no physical restrictions and no significant limitations, and lack of any medical treatment for peripheral edema). Goldsby has not addressed any of the ALJ's reasons for discounting her subjective testimony, and substantial evidence supports the ALJ's findings. See 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. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Accordingly, substantial evidence supports the ALJ's implicit and explicit conclusions that Goldsby did not meet the requirements of the listing because she did not exhibit "chronic

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        heart failure while on a regimen of prescribed treatment" resulting in (1) an ejection fracture of 30 percent or less during a period of stability and (2) "persistent symptoms of heart failure which very seriously limit the ability to independently initiate, sustain, or complete activities of daily living. " 20 C. F. R. 404, subpt. P, App. 1 § 4. 02(A)(1) & (B)(1) (emphasis added); see Sullivan v. Zebley, 493 U.S. at 530 (holding that, for an impairment to meet or medically equal a listing, the impairment "meet all of the specified medical criteria. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        B. The ALJ did not err at step three of the sequential evaluation process by rejecting some of the findings of Goldsby's treating primary care physician.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On April 19, 2010, Goldsby's treating primary care physician, Dr. Sumana Nagireddy, filled out a physical capacities evaluation form. (R. 350). With two exceptions, the residual functional capacity determination of the ALJ is consistent with Dr. Nagireddy's evaluation. First, Dr. Nagireddy indicated that Goldsby could sit for eight hours during an eight-hour work day, but the ALJ determined that Goldsby was further limited to sitting for up to six hours in an eight-hour work day. (R. 38; 350). Second, the ALJ rejected Dr. Nagireddy's opinion that Goldsby was likely to be absent from work four days per month. Dr. Nagireddy's brief explanation for this limitation was that Goldsby "has congestive heart failure with ejection fracture of 30-35% which may be affecting her daily activities. " (R. 350). According to the undisputed testimony of an impartial vocational expert, if Goldsby missed four work days per month due to her congestive heart failure, Goldsby's ability to perform any jobs available in the national economy "would be eliminated. " (R. 28).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                As the ALJ noted, "although Dr. Nagireddy had only seen Goldsby on two

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        occasions during the 8-month period preceding his responses to the physical capacity questionnaire, he meets the definition of a 'treating medical source'" pursuant to 20 CPR 404. 1527(c)(2). Therefore, to the extent that Dr. Nagireddy's response to the physical capacity evaluation qualifies as a medical opinion, that opinion must be given substantial weight unless the ALJ showed "good cause" to the contrary. Phillips v. Barnhart, 357 F. 3d 1232, 1240 (11th Cir. 2004). "'Good cause' 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. " Id. When the ALJ disregards the opinion of a treating physician, the ALJ must clearly articulate her reasons for doing so. Id.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Substantial evidence supports the ALJ's clearly articulated reasons for rejecting Dr. Nagireddy's conclusion that Goldsby's congestive heart failure would cause her to miss four days of work per month. First, as Goldsby fails to mention, this case involves the competing opinions of two treating physicians. The opinion of Dr. Nagireddy, a primary care physician, conflicts with the slightly more recent opinion of the treating cardiologist, Dr. Good. Dr. Good concluded that Goldsby "is New York Heart Association Class I, " which, as both the ALJ and Dr. Anderson pointed out, is equivalent to a finding that Goldsby had cardiac

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        disease with no resulting limitation of physical activity. (R. 43 & n. 7; R. 359-61). The opinion of a specialist is generally due more weight than that of a general practitioner. See 20 C. F. R. § 404. 1527(c)(5) ("We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Further, as the ALJ noted, "Dr. Nagireddy's opinion that the claimant would likely be absent from work four days per month as a result of her impairment or treatment is inconsistent with his own opinions relating to the claimant's functional capacity for an 8-hour workday. " (R. 43). Moreover, in explanation of his opinion, Dr. Nagireddy's provided only a brief note that Goldsby "has congestive heart failure with ejection fracture of 30-35% which may be affecting her daily activities. " (R. 350). See Phillips, 357 F. 3d at 1240 (holding that and ALJ has good cause to reject a treating physician's opinion when the "treating physician's opinion was conclusory or inconsistent with the doctor's own medical records"). By way of contrast, Dr. Good's opinion, which also took into consideration Goldsby's ejection fracture of 30-35%, was supported by a three-page new patient evaluation report that supported his conclusion that Goldsby had no physical limitations associated with her heart condition, and that did not support a finding that Goldsby would miss four work days per month due to symptoms of cardiomyopathy. The ALJ did not err in giving more

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        weight to the well-supported opinion of the treating physician than to the conclusory opinion of the general practitioner. See 20 C. F. R. § 404. 1527(c)(3) ("The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ's decision to credit the opinion of the treating cardiologist is further substantially supported by the testimony of Dr. Anderson, the consulting physician, who also gave more weight to the opinion of the treating specialist. Dr. Anderson testified in detail as to why the opinion of the treating cardiologist, as well the medical record as a whole,

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 19

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        supported a finding that Goldsby had no physical restrictions and did not support a finding that Goldsby would miss four or more days of work per month. (R. 23-27). Dr. Nagireddy's comparatively brief explanation that Goldsby "has congestive heart failure with ejection fracture of 30-35% which may be affecting her daily activities" (R. 350 (emphasis added)) is equivocal at best, and is not supported by the medical record as a whole. The ALJ's reliance on Dr. Anderson's testimony, which Dr. Anderson supported with detailed explanations based on the medical record, is supported by substantial evidence and free of legal error. See 20 C. F. R. § 404. 1527(c)(3) ("The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, . . . and the better an explanation a source provides for an opinion, the more weight we will give that opinion. . . . Because nonexamining sources have no examining or treating relationship with you, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and other examining sources. "); 20 C. F. R. § 404. 1527(c)(3) ("Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In rejecting Dr. Nagireddy's opinion regarding Goldsby's ability to maintain work attendance, the ALJ also "iterated that, prior to the denial of her claim for benefits, the claimant's impairments had not required physician treatment even once during a period of almost five years. Following the denial of the claim, she sought treatment on only four

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 20

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        occasions during a 12-month period. " (R. 43-44). Goldsby's lengthy failure to continue medical treatment further supports the ALJ's decision. See Ellison v. Barnhart, 355 F. 3d 1272, 1275 (holding that "'refusal to follow prescribed medical treatment without a good reason will preclude a finding of disability'" (quoting Dawkins v. Bowen, 848 F.2d 1211 1213 (11th Cir. 1988)); see also 20 C. F. R. § 404. 1527(b) ("How we consider medical opinions. In determining whether you are disabled, we will always consider the medical opinions in your case record together with the rest of the relevant evidence we receive. "); see also Phillips, 357 F. 3d at 1240 (holding that an ALJ has good cause to reject a treating physician's opinion that is not bolstered by the evidence).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Accordingly, the ALJ's decision not to accord controlling weight to Dr. Nagireddy's opinion about Goldsby's ability to maintain attendance at work, and the ALJ's decision to instead accord controlling weight to the opinion of the treating cardiologist, are supported by substantial evidence and are fully in accordance with the controlling law and regulations.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        V. Conclusion

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                For the reasons as stated, the court concludes that the decision of the Commissioner denying benefits to Goldsby should be affirmed. See Landry v. Heckler, 782 F.2d 1551 1551-52 (11th Cir. 1986) ("Because the factual findings made by the ALJ . . . are supported by substantial evidence in the record and because these findings do not entitle the claimant to disability benefits under the appropriate legal standard, we affirm. ").

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Court will enter a separate final judgment.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                ___________        CHARLES S. COODY        UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                ---

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                --- Notes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. See Sullivan v. Zebley, 493 U.S. 521, 525 n. 3 (1990). Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e. g Sullivan, 493 U.S. at 525 n. 3; Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The ALJ found that Goldsby did not suffer from an impairment of peripheral edema. (R. 37; see also R. 39-44 (discussing the lack of medical evidence of peripheral edema)). Goldsby does not challenge this finding on appeal.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Here, the ALJ inserted the following footnote: "The claimant's non-compliance with medication and treatment during this period is iterated. "

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Here, the ALJ inserted the following footnote: "The claimant apparently decided to resume care only after the initial denial of her claims, about 2 weeks following the date on which she obtained a representative and filed her request for a hearing. "

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Here, the ALJ inserted the following footnote: "The claimant's ejection fraction, at the time of her last "pre-filing" . . . visit to her cardiologist in 2005 had been 55% (Exhibit l0F). "

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 But see 20 C. F. R. § 404. 1527(d)(2)-(3) ("Opinions on some issues . . . are not medical opinions . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i. e that would direct the determination or decision of disability. . . . Although we consider opinions from medical sources on issues such as . . . your residual functional capacity. . . the final responsibility for deciding these issues is reserved to the Commissioner. We will not give any special significance to the source of an opinion on issues reserved to the Commissioner. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 In his May 3, 2010 report, Dr. Good noted:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (R. 359-61 (emphasis added)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cannon v. Bowen, 858 F.2d 1541 (11th Cir., 1988)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1988-11-02 Citations: 11
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Ware v. Schweiker, 651 F.2d 408 (5th Cir., 1981)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1981-07-24 Citations: 30
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

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