Filed: Jun. 13, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-14595 ELEVENTH CIRCUIT Non-Argument Calendar JUNE 13, 2011 _ JOHN LEY CLERK D.C. Docket No. 3:09-cv-00520-JRK ROBERT COPHER, llllllllllllllllllllllllllllllllllllllll Plaintiff–Appellant, versus COMMISSIONER OF SOCIAL SECURITY, llllllllllllllllllllllllllllllllllllDefendant–Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (June 13, 2011)
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 10-14595 ELEVENTH CIRCUIT Non-Argument Calendar JUNE 13, 2011 _ JOHN LEY CLERK D.C. Docket No. 3:09-cv-00520-JRK ROBERT COPHER, llllllllllllllllllllllllllllllllllllllll Plaintiff–Appellant, versus COMMISSIONER OF SOCIAL SECURITY, llllllllllllllllllllllllllllllllllllDefendant–Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (June 13, 2011) B..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14595 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 13, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cv-00520-JRK
ROBERT COPHER,
llllllllllllllllllllllllllllllllllllllll Plaintiff–Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
llllllllllllllllllllllllllllllllllllDefendant–Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 13, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Robert Copher appeals from the district court’s order affirming the Social
Security Commissioner’s decision denying his application for Social Security
disability benefits and supplemental security income. Copher’s appeal raises one
issue: Did the administrative law judge (ALJ) err by not giving controlling weight
to the opinion of his treating physician? Because we conclude that the ALJ
properly discounted the opinion of Copher’s treating physician, we affirm.
I.
Copher applied for disability insurance benefits and supplemental security
income in December 2003, alleging that he had suffered from neck pain, back
pain, and persistent headaches since December 2002. In 2005, while his first
application was still pending, Copher once again applied for benefits, and his
second application was consolidated with his first. Only Copher’s headaches are
relevant to his appeal.
Copher was first treated by Dr. Manley Kilgore, a neurologist, in June 1999.
Following an accident in July 2003, Copher returned to Dr. Kilgore, who ordered a
brain MRI. The MRI was normal. Later that year, Copher returned and reported
that his headaches were fairly well controlled when he took his medication. One
month later, Copher returned and complained of severe headaches several times a
week. Early in 2004, Copher saw Dr. Kilgore and reported that his headaches
were still severe. In 2005, Copher was again treated by Dr. Kilgore and he again
complained of headaches. After that last visit, Dr. Kilgore wrote a letter noting
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that Copher was “totally incapacitated” by headaches 8 to 10 days a month. In that
same letter, Dr. Kilgore wrote that he had diagnosed Copher as suffering from
post-traumatic headaches.
II.
We review the ALJ’s factual findings with great deference and accept them
as conclusive if they are supported by substantial evidence. Ingram v. Comm’r,
496 F.3d 1253, 160 (11th Cir. 2007). Substantial evidence is that which a
reasonable person would take as sufficient to support a conclusion. Foote v.
Chater,
67 F.3d 1553, 1560 (11th Cir. 1995). It is more than a scintilla but need
not be a preponderance. Dyer v. Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005).
In a disability proceeding, the medical opinion of a claimant’s treating
physician is generally given “controlling weight” in determining the severity of a
claimant’s impairments. 20 C.F.R. § 404.1527(d)(2). But that is only the case if
the treating physician’s opinion is “well-supported by medically acceptable
clinical and laboratory techniques and is not inconsistent with other substantial
evidence” in the record. Id. When the ALJ makes a finding that a treating
physician’s opinion should not be given controlling weight, he must articulate his
reasons for doing so. Phillips v. Barnhart,
357 F.3d 1232, 1240–41 (11th Cir.
2004).
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Here, the ALJ found that Dr. Kilgore’s opinion was not entitled to
controlling weight because it was inconsistent with other substantial evidence in
the record, including Dr. Kilgore’s own records. After reviewing Dr. Kilgore’s
2004 and 2005 opinions about Copher’s orthopedic conditions, the ALJ noted that
Dr. Kilgore never attributed Copher’s inability to work to his orthopedic injuries.
(In any case, Dr. Raul Zelaya, an orthopedic surgeon doctor who examined Copher
advised that he was unable to make physical findings that correlated to Copher’s
subjective complaints. Even Dr. Kilgore’s own examination of Copher noted that
Copher’s motor strength, tone, reflexes, gait, and station were all normal.)
Instead, Dr. Kilgore attributed Copher’s inability to work to his headaches,
but the ALJ noted that all medical imaging of Copher’s brain and his neurological
examinations had been normal. Furthermore, although Dr. Kilgore’s letter opined
that the plaintiff was totally incapacitated for 8 to 10 days a month, several
evaluations indicated that Copher was capable of work, or were at least
ambiguous. For example, the ALJ noted that on one form evaluating Copher, Dr.
Kilgore checked a box for “No Work,” but wrote that Copher was capable of
“light duty.” On another, Dr. Kilgore marked the box for “No Work,” but also
checked “Part Time.” In addition, the ALJ noted that Dr. Kilgore’s records
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indicated that Copher’s headaches were responsive to treatment.1 Thus, the ALJ
found that the inconsistencies in Dr. Kilgore’s own records and between his
opinions and the rest of the record meant that Dr. Kilgore’s opinion was not
entitled to controlling weight.
Because the ALJ clearly articulated his reasons for discounting Dr.
Kilgore’s opinion, and that finding is supported by substantial evidence, we
affirm.
AFFIRMED.
1
At his hearing, Copher testified that he stopped taking his medication because he could
not afford it. Although the ALJ addressed this issue in the administrative proceeding, Copher
has not raised this argument on appeal. Therefore, it has been waived. Cunningham v. Dist.
Att’y’s Office for Escambia Cnty., 592 F.3d 1237, 1254 n.9 (11th Cir. 2010).
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