Robert Copher vs Commissioner of Social Security , 429 F. App'x 928 ( 2011 )


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  •                                                                              [DO NOT PUBLISH]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
    2
    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).
    3
    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
    4
    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).
    5