Kimberly Yvette Nance v. Social Security Administration, Commissioner

Court of Appeals for the Eleventh Circuit·Decided July 18, 2019·No. 18-14611·Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 18-14611

Non-Argument Calendar

D.C. Docket No. 4:17-cv-00378-AKK

KIMBERLY YVETTE NANCE, Plaintiff-Appellant,

versus

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Andrew Saul, Commissioner,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Alabama

(July 18, 2019)

Before WILLIAM PRYOR, BRANCH, and GRANT, Circuit Judges. PER CURIAM:

Kimberly Yvette Nance appeals the district court’s order affirming the denial of her claim for Social Security disability benefits. She argues that the Administrative Law Judge erred by giving little weight to the opinions of her treating physician. Because we conclude that substantial evidence supported the decision of the ALJ, we affirm.

I. BACKGROUND

A. Procedural Background In October 2013, when she was 41 years old, Nance applied for disability insurance benefits for a period of disability beginning on September 17, 2013. Her disability claim was based on a failed lumbar disc repair, osteoarthritis, fibromyalgia, and depression. Before September 2013, Nance worked as a certified nursing assistant. After a hearing, an ALJ denied Nance’s application on August 18, 2015. The Appeals Council denied her request for review on January 9, 2017, making the ALJ’s decision the final decision of the Social Security Commissioner. Nance then sought review of the Commissioner’s decision in the district court. The district court affirmed the Commissioner’s decision, finding that the ALJ’s decision was supported by substantial evidence.

B. The Evidence Before the ALJ Nance completed a function report in which she described her daily activities. She explained that she generally ate cereal, sandwiches, and fast food

that someone bought her, and she may cook one meal a month. She stated that she can drive and ride in a car but that she prefers for someone else to drive because of her pain. According to the report, she goes to the doctor once a week, shops once a month for 30 minutes, shops once every other week for 10 to 15 minutes, and visits her father. She does one load of laundry a day though it takes her all day because she takes breaks to rest.

On September 17, 2013, Nance saw Dr. Ronnie Lewis at Rapid Care Family Medical Clinic for anxiety and depression. Dr. Lewis diagnosed situational depression, myalgia, myositis, and chronic back pain. Dr. Lewis referred Nance to Rheumatology Associates of North Alabama for fibromyalgia, where she was seen by Dr. Christie Thomas. Dr. Thomas did not diagnose fibromyalgia and was “unable to elucidate any type of rheumatologic condition at this time,” but noted that she would follow-up closely on Nance’s labs. On September 18, 2013, Dr. Grant Huntzinger performed an MRI of Nance’s lumbar spine. He noted that Nance had mild lower lumbar spondylosis, most severe at the L4–L5 level, as well as moderate L4–L5 and severe L5–S1 level facet arthropathy.

On October 10, 2013, Nance saw Dr. Anthony Sims at Henagar Family Medicine. Nance reported moderate, aching, generalized pain. Associated symptoms included “chronic myofascial pain, but not depression, joint pain (multiple sites), leg cramps, morning stiffness in joints, muscle spasms, or

numbness in arm.” Dr. Sims’s examination showed no clubbing, cyanosis, or edema, and normal range of motion and strength. Dr. Sims diagnosed low back pain, fibromyalgia, and hypothyroidism. Dr. Sims recommended that Nance engage in “[r]egular, low-impact exercises three times a week,” such as “walking, swimming, water aerobics, & biking.”

Nance then saw Dr. Anjaneyulu Alapati of HH Neurological Associates on November 5, 2013, complaining of left side facial numbness. Upon examination, Nance had 5/5 motor strength in all extremities, normal coordination, and normal gait. Dr. Alapati assessed left side facial numbness for which he scheduled a brain MRI, and fibromyalgia for which he recommended Nance continue her medication. That same day, Nance also saw Dr. Mark G. Freeman at the Orthopaedic Institute of Chattanooga. Dr. Freeman diagnosed osteoarthritis of the hip and lumbar radiculopathy. Dr. Freeman noted that an x-ray of Nance’s right hip showed mild degenerative joint space narrowing and that she had “very minimal” osteoarthritis in her right hip. Dr. Freeman observed that Nance walked with an antalgic gait but found that her range of motion and strength in her hips were normal.

On November 25, 2013, Dr. Robert Estock, a state agency psychological consultant, reviewed the record and stated that Nance had moderate restrictions in activities of daily living, moderate difficulties in maintaining social functioning,

and moderate difficulties in maintaining concentration, persistence, or pace. Dr. Estock also stated: “[Nance] can fix light meals and does laundry. She can drive, shop and pay bills. She is credible but she does not have listing level functional limitations.”

On December 6, 2013, Nance saw Noel N. Lawson, FNP, for follow-up after a therapeutic lumbar facet injection. Nance reported that her pain had not decreased since the injection and described it as constant achy, sharp, and stabbing pain in the lower lumbar spine on both sides. Nance also stated that standing, prolonged sitting, bending, and movement made the pain worse. Lawson advised Nance to avoid bed rest lasting four days or longer, resume normal activities, continue with water aerobics, and remain off work until her next appointment. Nance saw Lawson again on January 22, 2014, when Nance stated that she was 60% better than her last office visit. Lawson advised Nance to resume normal activities and continue with conservative measures but did not discuss a work restriction.

Nance returned to Dr. Sims on April 8, 2014, and April 29, 2014. At both visits, Nance described her pain as aching, generalized, chronic, and moderate. Dr. Sims noted that her range of motion and strength were normal. Dr. Sims at both visits recommended “[r]egular, low-impact exercises three times a week” and “[l]ow-stress exercises such as walking, swimming, water aerobics, & biking.” On

April 29, 2014, Dr. Sims provided an Attending Physician’s Statement in which he stated that Nance was restricted from sitting for more than one hour, standing for more than 30 minutes, and lifting any amount of weight. Dr. Sims also completed a physician’s certification dated May 18, 2014, that stated that Nance could not engage in substantial gainful activity due to fibromyalgia but could perform activities of daily living even though they took her longer to complete.

On May 28, 2014, Nance reported to Dr. Sims with generalized, moderate edema. Dr. Sims recommended that Nance reduce sodium intake, avoid stressful activities, and exercise regularly. Nance saw Dr. Sims again on October 6, 2014. She described her back pain as moderate and said that it improved with anti- inflammatory use but worsened with activities of daily life. On examination, Nance had normal range of motion and strength. Dr. Sims recommended that Nance use over-the-counter pain medications; avoid manipulation of the spine, extensive extension or flexion of the spine, and twisting; “[e]xercise three to four times a week, once or twice a day as tolerated for 20–40 minutes each time;” and apply heat to the affected area as needed.

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