Robinson v. Astrue (CONSENT)
MEMORANDUM of OPINION. Signed by Honorable Judge Susan Russ Walker on 6/27/2011. (br, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
Commissioner of Social Security,
CIVIL ACTION NO. 2:10cv29-SRW
MEMORANDUM OF OPINION
Plaintiff Monique Robinson brings this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of a decision by the Commissioner of Social Security (“Commissioner”)
denying her application for a period of disability and disability insurance benefits under the
Social Security Act. The parties have consented to entry of final judgment by the Magistrate
Judge, pursuant to 28 U.S.C. § 636(c). Upon review of the record and briefs submitted by
the parties, the court concludes that the decision of the Commissioner is due to be affirmed.
On January 23, 2006, when she was thirty-nine years old, plaintiff reported to Dr.
O’Neill Culver complaining of a bad headache around her forehead and eyes, tightness in the
right side of her head and tightness in her throat. Dr. Culver noted minimal ankle edema and
stated “[t]he back shows no CVA nor ILA tenderness. Neurologically she has 2+
symmetrically reflexes. The rest of the exam is [within normal limits].” He diagnosed
uncontrolled hypertension. Plaintiff returned to Dr. Culver one week later, again with
complaints of headache. She stated that she was also having some trouble with her back. On
examination, Dr. Culver noted that plaintiff as “grossly obese.” He stated that her back
“shows rather moderate lumbosacral spinous process tenderness w/bilateral sacroiliac joint
tenderness.” She had “½ + ankle edema.” Dr. Culver diagnosed uncontrolled hypertension,
chronic low back pain, dependent edema and headaches. (R. 198).
Plaintiff next sought treatment from Dr. Culver nearly six months later, on July 24,
2006. She complained of chest pain associated with left-side body and arm pain. She reported
that she had developed a fast heartbeat for several hours and had started to have chest pains.
She also reported pain radiating down her left arm. On examination of plaintiff’s neck, Dr.
Culver noted a well healed thyroid scar, with “some mild thyromegaly remaining.” He again
described her as “grossly obese” and stated that her extremities showed “some ½+ ankle
edema.” He noted that her skin, lymphatics, and back were all within normal limits. He
diagnosed chest pain, hypertension and weakness. Dr. Culver had plaintiff undergo an EKG,
which was normal. He ordered blood tests, gave plaintiff a prescription for Ultram for spasms
and told her to come back in two days.
Plaintiff did so, returning to Dr. Culver on July 26, 2006. She complained of recurring
episodes of weakness and stated that she was having muscle aches. Dr. Culver noted that
examination of her extremities showed some weakness of the legs bilaterally with “some skin
[changes] that appear to be coarse.” He stated that “[t]he neurological exam shows normal
reflexes that are 2+ and symmetrical [with] normal motor strength.” He noted that her cardiac
enzymes were negative, and that her cholesterol profile, lipid profile and “the rest of the labs
are [within normal limits].” Dr. Culver diagnosed hypothyroidism, weakness, and myositis.
He ordered a TFH level and told plaintiff to return in one week. (R. 197).
On October 25, 2006, plaintiff had a “barium swallow” test due to complaints of
difficulty swallowing (dysphagia), which revealed a mild hiatal hernia and mild esophageal
dysmotility. (R. 182). A thyroid uptake and scan performed on the same day revealed no
focal abnormality in the left lobe and a small amount of activity in the right neck, suggesting
a small residual amount of thyroid tissue following a previous lobectomy. (R. 181). A thyroid
ultrasound showed “relative small size of the right lobe of the thyroid gland. There is a tiny
cyst in each lobe. Heterogenous solid 13mm nodule in the inferior left lobe of the thyroid
gland. (R. 180). On October 31, 2006, plaintiff returned to Dr. Wesley Barry, Jr., for followup of her dysphagia.1 Dr. Barry reviewed plaintiff’s testing results. He stated that the nodule
on her left side “is not of any particular concern since it is not even noted on the nuclear
medicine thyroid scan.” He diagnosed mild esophageal dysmotility and indicated that no
surgical therapy was indicated. He stated that if she continued to have a problem, she should
follow-up with her gastroenterologist. (R. 183).
On December 17, 2006, plaintiff reported to the emergency room at Lakeview
Community Hospital complaining of moderate chest pain – six on a scale of ten – which was
The treatment notes indicate that plaintiff’s “previous note apparently was
misplaced. The patient, because of her dysphagia, had a barium swallow, thyroid scan,
and thyroid ultrasound.” (R. 183).
radiating down her left arm. She had no shortness of breath, no palpitations, and no vomiting,
but “some nausea.” (R. 244). She was diagnosed with hypertension, chest pain, angina and
GERD and advised to follow-up with her primary care physician in two days. (R. 244-245).
The following month, on January 29, 2007 – when she was forty years old – plaintiff
protectively filed an application for a period of disability and disability insurance benefits.
(R. 132, 151). She alleged that she had become disabled thirteen months earlier, on January
1, 2006, due to back problems, arthritis, high blood pressure and problems with her left hand
and arm. She stated that she is unable to stand for any length of time, unable to do a lot of
bending due to back problems, and unable to do a lot of lifting due to numbness and
weakness in her left hand. (R. 121, 126). In a physical activities questionnaire, plaintiff
indicated that she is able to sit, to walk for fifteen minutes, and to stand for ten to fifteen
minutes. (R. 144). She stated that her back gives her a lot of problems and her hand and
forearm hurt a lot when she tries to do a lot of chores around the house, and that she has a
lot of back and arm pain on cold or cloudy days. (R. 144, 147). She noted that her household
chores are limited to doing laundry, that she goes to the grocery store once a month with her
husband, and that she can carry a light bag of groceries if it weighs less than seven pounds.
(R. 146-47). She indicated that she cannot drive while she is taking her medication. (R.
On February 5, 2007, plaintiff returned to Dr. Culver complaining of trouble with her
back. She stated that she was having trouble with moving and bending and trying to do her
housework, and that she had pain in her hands, worse on the left than on the right. On
examination of her back, Dr. Culver noted, “The back shows rather moderate lumbosacral
spinous process tenderness. Tenderness that extends from the lumbo sacral spine all the way
to the thoracic spine. There is noted bilateral sacroiliac joint tenderness as well as Rt sciatic
notch tenderness.” On examination of plaintiff’s extremities, he also noted “tenderness over
the volar carpoligament w/palpation, worse on the L than Rt.” He stated that the rest of the
exam was within normal limits. He diagnosed chronic lumbosacral strain, traumatic arthritis
of the back, carpal tunnel syndrome bilaterally in her hands, and hypertension. (R. 196).
The following month, on March 16, 2007, plaintiff returned to Dr. Culver complaining
of continued problems with her back. She stated that she was unable to do housework and
that her hands continued to hurt. Dr. Culver continued to note tenderness of plaintiff’s back
and her carpal tunnel ligaments. He diagnosed “1. Lumbosacral disc [disease]. 2. Chronic
low back pains 3. Chronic right sciatic neuralgia, 4. Bilateral CTS. 5. URI. He advised
plaintiff to continue taking “her Tylenol she’s taking at home which helps her pain,” and he
prescribed a cough syrup.
On April 9, 2007, plaintiff again reported to the emergency room at Lakeview
Community Hospital complaining of mid-epigastric chest pain. The pain improved with
administration of a GI cocktail. She was diagnosed with chest pain, probable GERD, and
uncontrolled hypertension. (R. 239-242).
On April 18, 2007, plaintiff reported to Dr. William D. King for a consultative
physical examination. (R. 188-192). Plaintiff told Dr. King that she has had lower back pain
since sometime in the 1980s when she was in a motor vehicle accident. She stated that the
pain “comes and goes,” is not aggravated by any position, motion, or activity, and is nonradiating. She reported that medications do not help and that her back was hurting then. Dr.
King noted, however, that “she does not seem to be in any distress.” Plaintiff told Dr. King
that she had never had any x-rays or tests done, and had not seen an orthopaedic doctor. She
complained of occasional numbness in her left hand and stated that it tingles and sometimes
hurts. This also “comes and goes” and is not associated with any activity.
On examination of her upper extremities, Dr. King noted that plaintiff’s “shoulders,
elbows, wrists, MCP, PIP and DIP joints are all normal with full range of motion” and that
there was no evidence of any synovial thickening, tenderness, or abnormalities. He stated
that her grip strength was 5/5 bilaterally, her hand dexterity was normal, sensation to light
touch was normal, and that the Tinel sign was negative in both hands. Dr. King noted full
range of motion of plaintiff’s hips, knees, and ankles and stated that her feet are normal, with
no swelling. Dr. King observed that plaintiff had full range of motion on flexion of her back,
that extension of her back is normal, that she “bends over easily and touches her toes” and
“straightens up easily.” He further noted that her lateral motion and twisting were both
normal, and straight leg raises were negative. She showed normal curvature of her back and
“slight excenuation of the lower lumbar lordotic curve.” He noted her gait to be normal, her
heel toe walking to be normal, and squatting to be normal. Dr. King observed that plaintiff
“climbs up and down the exam table without difficulty.”
On neurologic exam, he noted that plaintiff is “[a]lert and orientated times III,” that
her “cranial nerves II-XII are intact,” her “[deep tendon reflexes] are 2+ symmetrically
bilaterally” and that there were “no motor or sensory deficits.” Dr. King stated that he had
been asked to “indicate the number and location of tendon or trigger points and there are
none.” He further stated that he had been asked to discuss an assistive device and that the
plaintiff does not need one. He added that she denied any seizures, headaches, dizziness, or
blackouts. Dr. King’s impressions were: (1) lower back pain of unknown etiology with
normal back exam; (2) paresthesia of the left hand with normal sensation exam and normal
hand exam and negative Tinel sign; (3) hypertension well controlled; (4) moderate obesity;
(5) history of GERD and (6) history of partial thyroidectomy. (R. 190). Dr. King concluded:
Based on these medical findings despite the above mentioned impairments, her
ability to do work related activity, such as sitting, standing, walking, lifting,
carrying, handling objects, hearing, speaking and traveling should not be
impaired based on a completely normal exam. However, the patient does claim
lower back pain and the numbness in her left hand. I can not see any
abnormality on her exam.
Plaintiff’s application for disability was denied at the initial administrative level on
April 24, 2007. (R. 73-79).
On May 1, 2007, plaintiff again reported to Lakeview Community Hospital emergency
room complaining of chest pain moderate without radiation. She stated that it began after
she ate a hamburger. She was diagnosed with chest pain, GERD, and constipation. (R. 2367
238). Plaintiff returned to Dr. Culver on May 16, 2007, again complaining of trouble with
her back. She stated that she was having trouble sleeping at night and doing housework. He
noted continued tenderness on examination of her back and bilateral carpal tunnel tenderness.
He diagnosed: “1. Lumbosacral disc [disease] with chronic low back pains. 2. Chronic Rt
sciatic neuralgia. 3. Bilateral CTS. [and] 4. HTN.” (R. 196).
On May 31, 2007, plaintiff requested a hearing before an administrative law judge.
(R. 82). In a disability report she completed in connection with her appeal from the initial
denial of benefits, plaintiff stated that sometimes her husband helps her to get dressed and
she is not even able to get out of bed on some days. (R. 158).
On June 20, 2007, plaintiff returned to Dr. Culver complaining of trouble with her
back and neck area. She stated that she was hurting more now. She also reported problems
with her blood pressure. Dr. Culver diagnosed chronic lumbar disc disease with chronic low
back pain, chronic right sciatica neuralgia, bilateral carpal tunnel syndrome, hypertension,
and gross obesity. (R. 195). Dr. Culver referred plaintiff to Dr. McRae at Southeast Pain
Management Center. (R. 193-195).
Plaintiff reported to Dr. McRae on August 6, 2007. In her intake forms for her initial
evaluation, plaintiff reported back pain, left arm pain and difficulty moving her fingers. She
stated that her pain on that day was a level “3” out of “10” and that the lowest level of her
pain is a “2.” On an average day, her pain is “4,” and at the highest it is an “11” on a scale
of ten. She stated that her pain interferes with every activity. (R. 228). On physical
examination, Dr. McRae noted that her gait was normal for her age and that she had muscle
strength of 5/5 of her major muscle groups in her upper and lower extremities. He described
plaintiff as moderately overweight and in mild to moderate distress. He noted tenderness and
pain in the lumbar spine examination and in the sacral coccygeal and pelvic area, mild
lordosis, and moderately restricted lumbar flexion and extension, with pain elicited on both.
(R. 225). Dr. McRae noted, “On history and physical examination today, she appeared to
have mechanical lumbar pain with associated thoracolumbar myofascial pain and possibly
carpel tunnel syndrome of the right wrist. (R. 193). Dr. McRae recommended that plaintiff
increase her activity and he scheduled her for a one time physical therapy session “for
establishment of a daily home exercise program for stretching and strengthening of her
thoracolumbar area.” He also scheduled her for bilateral facet intervention” stating that it
appears that she had “some mechanical pain related to her facets.” He told plaintiff to
continue with her current dose of Tramadol and to offset her Advil use with Tylenol. He
stated that she may need more formal evaluation of her carpal tunnel syndrome with
electromyelography and nerve conduction study. (R. 193-194).
On August 14, 2007, plaintiff reported to Dr. McRae for a facet joint/nerve injection.
“Lumbar/Sacral 1st Level.” (R. 213). The following day, she reported pain of moderate with
a pain score of “5.” (R. 220-222). On the day of the injection, she reported a pain score of
“7” but exhibited “[n]o pain behaviors.” Her facial appearance was relaxed, her verbalization
was normal, and her mobility and range of motion were within normal limits. (R. 214). Her
gait again was reported to be normal and she had muscle strength of 5/5 in her upper and
lower extremities. Dr. McRae instructed plaintiff to maintain a daily pain diary and to report
for follow-up in two weeks. (R. 214-216).
On August 23, 2007, plaintiff reported for physical therapy at Southeast Alabama
Medical Center. (R. 203-205). At a follow-up visit with Dr. McRae on September 4, 2007,
plaintiff noted pain at a level of “5” on a scale of ten. She was complained of back pain,
neck pain, left arm pain and bilateral hip pain. (R. 208). In the history section of his treatment
notes, Dr. McRae noted, “Patient is able to perform activities of daily living, complex
activities of daily living. Patient does not require/use any assistive devices. The symptoms
of pain improve with rest. The symptoms of pain worse with walking, standing, weight
bearing, lifting, daily activities.” She reported improvement overall after her bilateral lumbar
facet joint injection. Though she was given a home exercise program from physical therapy,
she reported that she had not been able to follow-up with the exercises or with subsequent
physical therapy because of the onset of a week long heavy menstrual period. (R. 208).
Dr. McRae again observed that plaintiff exhibited no pain behaviors, a relaxed facial
appearance, normal verbalization and that her mobility and range of motion were within
normal limits. (R. 209). Dr. McRae advised plaintiff to follow-up with physical therapy the
following week and increase her activity with her home exercise program. He noted moderate
generalized tenderness in her cervical area, thoracic rib area, sacral, coccycgeal, pelvic and
lumbar area; he also noted moderate restriction of motion in plaintiff’s lumbar flexion,
lumbar extension, and lateral rotation. (R. 210).
On September 14, 2007, plaintiff reported to a neurologist, Dr. E. Ross Clifton. Dr.
Clifton performed an EMG and nerve conduction study on plaintiff’s left arm and selected
muscles and nerves of the right arm. He determined that the study showed evidence of
chronic C5-6 radiculopathy, but no indication of active radiculopathy. It showed no evidence
of carpal tunnel syndrome by nerve conduction velocity criteria, no evidence of neuropathy,
and no evidence of cubital tunnel syndrome. (R. 266).
On October 16, 2007, plaintiff returned to Dr. McRae. She complained of bilateral
lumbar and hip pain, but reported continued improvement since the facet injection. She
stated that she had been performing her daily home exercise program for three weeks and she
reported pain of “7” out of “10” in her hip. She reported that she would undergo an outpatient
procedure for a uterine polyp that was causing the excessive menstrual bleeding. (R. 261).
She also reported depressive symptoms and sleep disturbances as well as muscle pain, joint
pain, and decreased range of motion. (R. 262). Dr. McRae noted “18/18 tender points
positive on Manual Tender Point Survey” with “[f]our quadrant involvement.” He noted that
she had “EMG/NCS evidence of a C5-6 LUE radiculopathy” and stated that he would
schedule her for a cervical epidural steroid injection.2 He also diagnosed unspecified myalgia
and myocytis. He stated she meets criteria for fibromyalgia with diffuse myofacial pain and
poor sleep. (R. 263).
There is no indication in the record that plaintiff had this procedure.
On November 2, 2007, plaintiff had outpatient surgery, a Hysteroscope D & C for her
problem of menorrhagia, performed by Dr. A. H. Saville, Jr. Plaintiff next sought treatment
from Dr. McRae on June 10, 2008, eight months after she had last seen him. She complained
of posterior neck pain, posterior thoracic pain, posterior lumbar pain, left arm pain, bilateral
knee pain and a frontal headache and left-sided headache. (R. 255). She reported that she
had undergone a D &C and that her abnormal uterine bleeding was much improved. She
reported muscular pain, joint pain, decreased range of motion, generalized muscle weakness
and numbness, depressive symptoms and sleep disturbances. (R. 256). Dr. McRae again
noted 18 of 18 positive trigger points. Plaintiff’s gait was normal, and she exhibited a mildly
depressed affect, crying during the exam. Dr. McRae assessed lumbosacral spondylosis
without myelopathy, brachial neuritis/radiculitis not otherwise specified, and unspecified
myalgias and myocitis. He again indicated that she “meets criteria for fibromyalgia” and
again recommended a cervical epidural steroid injection. (R. 254-258).
Plaintiff returned to Dr. McRae on July 11, 2008. She complained that the Cymbalta
that he had started her on at her previous visit made her feel drowsy. She stated she had
considered the cervical epidural steroid injection but wanted to try medications first. (R.
248). She reported diffuse pain related to fibromyalgia and cervical radiculopathy. She
reported a depressed mood, exercising and stretching daily, and that she takes Tramadol. (R.
248). Plaintiff rated her pain level as “5” on a scale of ten. (R. 249). The doctor noted that
she was sighing frequently, but that her mobility and range of motion were within normal
limits. (R. 251). He further noted that she was in no acute distress. (R. 252). He continued
the same diagnoses, and noted she is not interested at the present time in the “CESI.” He
started her on a different medication, Gabapentin, and advised her of potential interaction
between Tramadol and Cymbalta and the need to minimize the Tramadol. (R. 252).
On August 20, 2008, plaintiff returned to Dr. Culver for the first time since June 20,
2007, fourteen months previously. She reported a history of fibromyalgia, cervical
radiculopathy, trouble with her back and legs, and depression. He noted ½+ ankle edema,
moderate lumbosacral spinous process tenderness, interscapular tenderness with bilateral
shoulder tenderness, and several areas of tenderness along the posterior back. He diagnosed
fibromyalgia, cervical radiculopathy, lumbar spondylosis, depression, obesity and GERD.
He prescribed Xantac and Ultram for pain.
Several weeks later, on October 1, 2008, Dr. Culver completed a clinical assessment
of pain form. He circled responses to indicate that “Pain is present to such an extent as to
be distracting to adequate performance of daily activities or work,” that “physical activity
such as walking, standing, sitting, bending, stooping, moving of extremities, etc.” would
result in “[g]reatly increased pain and to such a degree as to cause distraction from tasks or
total abandonment of tasks.” He circled the response to indicate that “Drug side effects can
be expected to be significant and to limit effectiveness due to distraction, inattention,
drowsiness, etc.” (R. 303). He also completed a medical source statement, indicating that
plaintiff can lift ten pounds occasionally to six pounds frequently, sit for two hours in an
eight hour day, and stand or walk for three hours in an eight hour day. He indicated that she
would need one hour of rest during an eight hour work day, in addition to regular breaks, that
she does not require an assistive device to ambulate, and that she should avoid dust fumes,
gases, extremes of temperature, humidity and other environmental pollutants because she
“has problems breathing.” He checked blocks to indicate that: plaintiff can never bend or
stoop, reach overhead, or work around hazardous machinery; that she can only rarely do
pushing and pulling movements with arm or leg controls, climbing, or fine manipulation; and
that she can occasionally perform gross manipulation and operate a motor vehicle. He
estimated that she would be absent from work as a result of her impairments or treatments
more than four days per month. (R. 304). In response to a question asking for the medical
basis and diagnosis for the restriction, he wrote “cervical radiculopathy, fibromyalgia, lumbar
spondylosis, obesity, GERD, depression, antalgic gait, SOB.” (R. 305). When asked to list
“objective evidence of pain, he noted that he had seen an antalgic gait and local tenderness.
He rated her pain as moderate. He stated that she had been functioning at the level described
for more than two and a half years, and that she was taking medication that would adversely
affect her ability to work, specifically, anti-inflamatories and narcotics. He wrote that she is
“unable to engage in work-related activity.” (R. 305).
An ALJ conducted a hearing on November 18, 2008. (R. 26-52). Plaintiff first
testified that she left her job working for Saunder’s Medical as an oxygen technician due to
her disability. She stated that she was having trouble with her back and had to carry the
oxygen, which weighed eight pounds, and the machines, which weighed fifteen to twenty
pounds. (R. 31-32). She also testified, however, that she was “let go” because her employer
was cutting back on employees. (R. 32).3 She testified that she had been going to school
taking classes in child development for the previous year, carrying a part-time course load.
(R. 32-33). She testified that she does not go to school full time because she cannot sit up
in the chairs for very long, and because of her medication. (R. 34). She is pursuing a degree
in early childhood development and stated that it would permit her to work in a preschool or
daycare. (R. 34). She testified that she has a good attendance record at school, is getting all
“A”s, and was inducted into Phi Beta Kappa. (R. 35). She further testified that her schooling
would probably take longer than four years and that she goes to school just “to try to do
something for [herself], because [she] stay[s] depressed a lot.” (R. 35). She stated that her
pain management physician, Dr. McRae, prescribed an anti-depressant but did not refer her
to a psychologist or psychiatrist. (R. 36). Plaintiff testified that she has pain all of the time
in her left arm and that Dr. McRae diagnosed fibromyalgia. (R. 36). She stated that, when
she was working as a medical oxygen technician, she was able to go to work as scheduled.
However, she did not believe that she could do that work anymore. (R. 37). Her left arm
goes numb, but her right arm is okay. (R. 38). She testified that she can stand for about
thirty minutes, sit for about thirty minutes, walk on the treadmill for about ten minutes, and
Plaintiff reported past work as a production worker for a company that made
automobile parts, as a private housekeeper and babysitter for a special needs child, and as
a medical supply technician. (R. 136-40).
lift about five pounds. She testified that she was getting steroid shots in her back but that
they did not seem to help, and that the pain management did not help. (R. 38-40).
Plaintiff testified that her medications make her nauseous, drowsy, and sleepy. On
a typical day, she stays at home when she is not in class. She watches television and reads
books and, sometimes, her husband takes her out for a ride because she is depressed. (R. 40).
She is able to feed and dress herself and take care of her own hygiene. She uses a computer
at home about five hours a week. (R. 41). She cooks sometimes and folds clothes but does
not wash dishes, sweep, vacuum, or do any yard work. (R. 41). She is able to stay on her
computer for about forty-five minutes before she has trouble. She testified that her teachers
are aware of her medical problems so they allow her to come and go as she feels necessary.
(R. 43). She testified that she has pain every day and that it is constant. She stated that her
pain level “most of the time” is at a level of nine on a scale of ten. (R. 43). She testified that
her lumbar steroid injections gave her relief by taking the edge off, but that it lasted for only
about an hour. (R. 44). She testified that she gets three hours of sleep a night. (R. 45). She
spends two to three hours each day lying down. (R. 46).
A vocational expert, Barry Murphy, testified at the hearing. Before she questioned the
VE about plaintiff’s case, the ALJ asked him, “Do you understand that if you give me an
opinion which conflicts with the information contained in the Dictionary of Occupational
Titles that you need to advise me of the conflict and the basis for your opinion?” He
responded that he did. (R. 47). He testified that plaintiff’s previous work as a medical
supply technician was medium and semi-skilled, and that her work as an aide for the autistic
child was light and semi-skilled. In response to the ALJ’s hypothetical question, the
vocational expert testified that the hypothetical person described could not do plaintiff’s past
work but could perform sedentary, unskilled work such as an order clerk, surveillance system
monitor, and a “call-out operator,” which he explained was a telemarketing type of job. In
his second hypothetical question, the ALJ added mental limitations and asked whether the
hypothetical individual could perform all of the jobs previously mentioned or any other jobs
and the VE responded that such a person could perform all of the jobs he had previously
identified, in the same numbers that he had previously identified. (R. 48-49). The ALJ asked
the VE if his answers were consistent with the information contained in the Dictionary of
Occupational Title and the VE responded that they were. (R. 49). The ALJ asked a third
hypothetical question, based on the form completed by Dr. Culver. The VE testified that a
person with the limitations identified by Dr. Culver could not perform plaintiff’s past work
or any other work. (R. 50).
The ALJ issued an opinion on January 20, 2009. (R 11-25). She determined that
plaintiff meets the insured status requirements of the Social Security Act through December
31, 2011. She further determined that the plaintiff had not engaged in substantial gainful
activity since her alleged onset date of January 1, 2006. (R. 13). She found that plaintiff has
severe impairments of fibromyalgia syndrome, back impairments of lumbar spondylosis and
cervical radiculopathy, and depression. (R. 14). She found that plaintiff does not have an
impairment or combination of impairments that meets or medically equals a Listing. (R. 16).
The ALJ determined that plaintiff has the following residual functional capacity:
to perform light work as defined in 20 C.F.R. 404.1567(b) except claimant can
lift 10 pounds frequently primarily with the right upper extremity; claimant can
sit, stand and walk for 6 hours in an 8-hour day with normal breaks; claimant
is limited to occasionally climbing stairs or ramps, balancing, stooping,
kneeling, crouching, or crawling; claimant is limited to never climbing ladders,
ropes or scaffolds; claimant can rarely reach with the left upper extremity;
claimant is further limited to understanding, remembering, and carrying out
short simple instructions.
(R.18). The ALJ concluded that plaintiff is unable to perform any of her past relevant work.
(R. 23). However, she determined, based on the VE’s testimony, that plaintiff can perform
other work as an order clerk, which is sedentary and unskilled, a surveillance system monitor,
also sedentary and unskilled and a call-out operator, also sedentary and unskilled. (R. 24).
She stated, “Pursuant to SSR 00-4p, the vocational expert’s testimony is consistent with the
information contained in the Dictionary of Occupational Titles.”
concluded, therefore, that the plaintiff had not been under a disability as defined in the Social
Security Act from January 1, 2006 through the date of the decision. (R. 24).
On November 13, 2009, the Appeals Council denied plaintiff’s request for review
(R. 1-4) and, therefore, the ALJ’s decision stands as the final decision of the Commissioner.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
to determine whether substantial evidence supports the ALJ’s factual findings. Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145
(11th Cir. 1991). Substantial evidence consists of such “relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Cornelius, 936 F.2d at 1145.
Factual findings that are supported by substantial evidence must be upheld by the court. The
ALJ’s legal conclusions, however, are reviewed de novo because no presumption of validity
attaches to the ALJ’s determination of the proper legal standards to be applied. Davis, 985
F.2d at 531. If the court finds an error in the ALJ’s application of the law, or if the ALJ fails
to provide the court with sufficient reasoning for determining that the proper legal analysis
has been conducted, the ALJ’s decision must be reversed. Cornelius, 936 F.2d at 1145-46.
Plaintiff raises two issues in her appeal to this court. She contends that the
Commissioner’s decision is due to be reversed because the vocational expert’s testimony
conflicts with the Dictionary of Occupational Titles and the conflict was not resolved during
the hearing. Plaintiff points out that the DOT indicates that individuals limited to
understanding, remembering and carrying out only simple, short instructions can perform at
the general educational development (“GED”) reasoning level of one, and that the jobs noted
by the VE require individuals to have a GED reasoning level of three. Plaintiff argues,
therefore, that the VE’s testimony that plaintiff could perform jobs as an order clerk,
surveillance system monitor, and call-out operator conflicts with the DOT and that
– according to Social Security Ruling 00-4p – the conflict should have been resolved before
the ALJ could rely on the vocational expert’s testimony.
The ALJ asked the vocational expert at the hearing whether his testimony was
consistent with the DOT, and he responded that it was. Even assuming that the VE were
wrong regarding the consistency, the ALJ was entitled to rely on the testimony. Further, the
law in the Eleventh Circuit is that the ALJ is entitled to rely on vocational expert testimony
even when it conflicts with the Dictionary of Occupational Titles. Jones v. Apfel, 190 F.3d
1224 (11th Cir. 1999). Plaintiff argues that SSR 00-04p is controlling and post-dates the
decision in Jones, supra. However, the Eleventh Circuit has recently reaffirmed the holding
of Jones. See Hurtado v. Astrue, 2011 WL 1560654 (11th Cir. Apr. 25, 2011); Jones v.
Astrue, 2011 WL 1490725 (11th Cir. Apr. 19, 2011). Plaintiff’s argument is, therefore,
Plaintiff further contends that the Commissioner’s decision is due to be reversed
because the ALJ failed to accord adequate weight to the opinion of plaintiff’s treating
physician, Dr. Culver. “If a treating physician’s opinion on the nature and severity of a
claimant’s impairments is well-supported by medically acceptable clinical and laboratory
diagnostic techniques, and is not inconsistent with the other substantial evidence in the
record, the ALJ must give it controlling weight.” Roth v. Astrue, 249 Fed. Appx. 167, 168
(11th Cir. 2007)(unpublished opinion)(citing 20 C.F.R. § 404.1527(d)(2)). “If the treating
physician’s opinion is not entitled to controlling weight, . . . ‘the testimony of a treating
physician must be given substantial or considerable weight unless “good cause” is shown to
the contrary.’” Id. (citing Crawford v. Commissioner, 363 F.3d 1155, 1159 (11th Cir. 2004)).
“If the ALJ finds such good cause and disregards or accords less weight to the opinion of a
treating physician, he must clearly articulate his reasoning, and the failure to do so is
reversible error.” Pritchett v. Commissioner, Social Security Admin, 315 Fed. Appx. 806
(11th Cir. 2009)(unpublished opinion)(citing MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986)). “When the ALJ articulates specific reasons for not giving the treating
physician’s opinion controlling weight, and those reasons are supported by substantial
evidence, there is no reversible error. Schuhardt v. Astrue, 303 Fed. Appx. 757, 759 (11th
Cir. 2008)(unpublished opinion)(citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir.
The ALJ accepted Dr. Culver’s assessment “to the extent it supports several of
claimant’s impairments rise to the level of severe impairments.” (R. 21). However, she gave
his assessment little weight, finding it to be inconsistent with his own treatment notes, only
supported by weak objective evidence, and inconsistent with the course of treatment
prescribed to the claimant. (R. 21). Plaintiff argues that the ALJ failed to provide good cause
for rejecting Dr. Culver’s opinion as expressed in the clinical assessment of pain form and
the medical source statement he completed.
In his October 1, 2008, form, Dr. Culver indicated that plaintiff had been functioning
at the very limited level he described for over two and a half years, i.e, since before April 1,
2006. (R. 305). The Commissioner observes, correctly, that from the time of her alleged
onset date through June 2007, plaintiff saw Dr. Culver only intermittently and was prescribed
conservative treatment with medications for her symptoms.4 Plaintiff saw Dr. Culver on
January 23, 2006, complaining of headache. Dr. Culver noted no tenderness on examination
of plaintiff’s back. She returned a week later, again complaining of headache and reporting,
also, that she was having “some trouble” with her back. Dr. Culver noted, this time, some
moderate tenderness. Plaintiff did not again return to Dr. Culver for almost six months, when
she saw him in his office two days apart in late July 2007. She first complained of chest
pain, radiating down her left arm, but had a normal EKG. Plaintiff’s back, again, was noted
to be “within normal limits” on examination. Two days later, she complained of “recurrent
The Commissioner also points to the minimal objective findings found by Dr.
King, the consultative examiner, in April 2007. (Doc. # 12, p. 12)(citing R. 188-91). The
Commissioner further observes that, while plaintiff testified that her pain level typically
was a nine on a ten point scale, she indicated on an intake form for her treatment with Dr.
McRae in August 2007, that on an average day her pain level was only a four. (Doc. #
12, p. 11)(citing R. at 43-44 and 228). Plaintiff rated her back pain as “mild,” at a level
“3” on that day with normal activities of daily living but restricted recreational activities.
(R. 270). At the administrative hearing, plaintiff also testified that, after the lumbar
injections, she had relief “[a]t least for about an hour.” (R. 44). However, in a September
2007 visit to Dr. McRae, plaintiff reported a pain level of 5/10 that day, “compared with
on average 3/10 while more sedentary this week” and she also reported “improvement
overall after he bilateral lumbar facet joint injections.” (R. 208). In October 2007,
plaintiff reported “continued improvement since the facet injections” but “7/10 pain in
her hips.” At her next visit with Dr. McRae eight months later, in June 2008, she rated
her pain level at “7” (R. 257), but also reported that medication improved her pain level
from “6” to “4.” (R. 255).
episodes of weakness.”
After the two visits in late July 2006, plaintiff did not again return to Dr. Culver until
after she filed her application for disability six months later. (R. 196-98). In four office
visits in February, March, May and June of 2007, plaintiff complained of back pain and
tenderness, and pains in her carpal tunnel ligaments bilaterally, and – while Dr. Culver
diagnosed lumbar disc disease and carpal tunnel syndrome – he did so without ordering
objective testing (R. 196).5 In the sixteen months between the June 20, 2007 office visit and
Dr. Culver’s completion of the pain and medical source statement forms on October 1, 2008,
he saw plaintiff only once, on August 20, 2008. (R. 306). Thus, the reasons articulated by
the ALJ for discrediting the opinion expressed by Dr. Culver in the forms – i.e., that it is
inconsistent with his own treatment notes, only supported by weak objective evidence, and
inconsistent with the course of treatment prescribed to the claimant – are supported by
substantial evidence and provide good cause for rejecting Dr. Culver’s opinion of disabling
Upon review of the record as a whole, the court concludes that the decision of the
Commissioner is supported by substantial evidence and proper application of the law.
When plaintiff had a nerve conduction study performed by a neurologist in
September 2007, it showed no evidence of carpal tunnel syndrome, cubital tunnel
syndrome, or radial neuropathy (R. 266). While the EMG performed the same day showed
evidence of chronic cervical radiculopathy, there was no indication of active
radiculopathy at that time. (Id.)
Accordingly, the decision is due to be AFFIRMED. A separate judgment will be entered.
DONE, this 27th day of June, 2011.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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