Kimberly Denise Brown v. Social Security Administration, Commissioner

Case: 18-15200 Date Filed: 05/31/2019 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-15200
Non-Argument Calendar
________________________
D.C. Docket No. 4:17-cv-01324-CLS
KIMBERLY DENISE BROWN,
Plaintiff - Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 31, 2019)
Before TJOFLAT, WILLIAM PRYOR and JORDAN, Circuit Judges.
PER CURIAM:
Kimberly Brown appeals an order affirming the denial of her application for
disability insurance benefits and supplemental security income. 42 U.S.C.
Case: 18-15200 Date Filed: 05/31/2019 Page: 2 of 4
§§ 405(g), 1383(c)(3). Brown challenges the decision to discount the opinion of
her treating physician, Dr. Ochuko Odjegba, that she was physically disabled. She
also argues that the Appeals Council failed to consider new evidence from Dr.
Odjegba and from Dr. Thomas Lackey. We affirm.
Substantial evidence supported the administrative law judge’s decision to
give little weight to Dr. Odjegba’s assessment that Brown’s back pain and lumbar
disc disease were disabling. Dr. Odjegba’s opinion that Brown could sit, stand, and
walk no longer than 30 minutes and had to elevate her legs above her waist for half
of an eight-hour workday was inconsistent with his treatment notes and with the
objective medical evidence. See Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th
Cir. 2004). Dr. Odjegba’s treatment notes recorded that Brown had no swelling in
and had a normal range of motion, full muscle strength, and stability in her upper
and lower extremities; that medication alleviated her hypertension and anemia,
which contributed to her pain; and that her alcohol abuse likely exacerbated her
conditions. Dr. Sathyan Iyer, who performed a consultative examination, made a
similar finding that Brown had a full range of motion and normal muscle power in
her extremities, and Dr. Iyer and emergency room physicians recorded that Brown
exhibited no swelling in her legs and that she abused alcohol. Brown’s magnetic
resonance imaging scan showed minor degenerative joint disease in Brown’s
lumbar spine, but no distinct changes in her disc height, significant narrowing, or
2
Case: 18-15200 Date Filed: 05/31/2019 Page: 3 of 4
other abnormalities that would suggest the condition of her back rendered her
incapable of working. And Dr. Lackey, who Brown later visited for pain
management, recorded that medication alleviated the pain in her ankle, legs, arms,
and back. Good cause supported the administrative law judge’s decision to
discount Dr. Odjegba’s assessment that Brown was disabled. See id. at 1240–41.
The Appeals Council did not err by refusing to consider medical records that
Dr. Lackey prepared on July 26, 2016, and on September 21, 2016, and that Dr.
Odjegba prepared on October 18, 2016. A claimant is entitled to review by the
Appeals Council if additional evidence that she submits is new, material, and
chronologically relevant. 20 C.F.R. § 404.970(a)(5). New evidence is
“chronologically relevant” only when the evidence “relate[s] to the period on or
before the date of the administrative law judge hearing decision.” Id. § 404.970(c).
For evidence to be material, “a reasonable possibility [must] exist[] that the
evidence would change the administrative result.” Hargress v. Soc. Sec. Admin.,
Comm’r, 883 F.3d 1302, 1309 (11th Cir. 2018).
Brown’s additional evidence was not chronologically relevant. Dr. Lackey
and Dr. Odjegba prepared the treatment records after the administrative law judge
denied Brown’s application on June 21, 2016. See id. And the treatment records
were not relevant to the period preceding the administrative law judge’s decision.
See id. at 1309–10. Dr. Lackey recorded in July and September that he continued
3
Case: 18-15200 Date Filed: 05/31/2019 Page: 4 of 4
to treat Brown’s back pain effectively with medication, and Dr. Odjegba reported
in October that he continued to treat Brown for hypertension and that he treated
Brown for a knot on her leg that developed after the administrative law judge’s
decision. In contrast to Washington v. Social Security Administration, 806 F.3d
1317, 1322–23 (11th Cir. 2015), and Hunter v. Social Security Administration, 705
F. App’x 936, 939–40 (11th Cir. 2017), where new psychological reports were
chronologically relevant because their opinions that the claimants were disabled
were based on preexisting treatment records chronicling, respectively, auditory and
visual hallucinations and panic attacks, Brown’s additional medical records do not
contain new findings about her condition based on limitations that existed before
the administrative law judge issued his decision.
Brown also argues, for the first time, that the new evidence was material, but
we disagree. Although Brown argues that Dr. Lackey’s records establish that he
“continued treatment for [her] pain” and “substantiate” Dr. Odjegba’s opinion,
Brown fails to explain how Dr. Lackey’s records, which are cumulative to those
submitted to the administrative law judge, would have changed the outcome of her
proceeding.
We AFFIRM the denial of Brown’s application for benefits.
4