Kimberly Denise Brown v. Social Security Administration, Commissioner

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 31, 2019
• Docket: 18-15200
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]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

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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

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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.