Kittrell v. Colvin(CONSENT)

Filing 15

MEMORANDUM OPINION AND ORDER: The Court AFFIRMS the Commissioner's decision. A separate judgment will be entered. Nancy A. Berryhill substituted for Carolyn W. Colvin (Acting Commissioner of Social Security) pursuant to FRCP 25(d). Signed by Honorable Judge Terry F. Moorer on 2/24/2017. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ELMER KITTRELL
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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CASE NO. 2:16-cv-323-TFM
[wo]

MEMORANDUM OPINION AND ORDER
I. PROCEDURAL HISTORY
Plaintiff Elmer Kittrell filed for an application for disability insurance benefits on March
14, 2013, alleging disability beginning March 5, 2013. Mr. Kittrell’s application was denied at
the initial administration level, and his request for a hearing before an Administrative Law Judge
(“ALJ”) was granted. Following the hearing, the ALJ concluded that the plaintiff was not under a
“disability” as defined in the Social Security Act and denied the plaintiff’s claim for benefits.
The Appeals Council rejected a subsequent request for review on March 3, 2016, consequently
the ALJ’s decision became the final decision of the Commissioner of Social Security
(“Commissioner”).2 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now
before the court for review pursuant to 42 U.S.C. §§ 405(g), and 28 U.S.C. § 636(c). Based on

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
2

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.

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the court’s review of the record in this case, the parties’ briefs (Docs. 12-13), and the relevant
law, the court concludes that the Commissioner’s decision is AFFIRMED.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability when the person is
unable to
Engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than 12 months…
To make this determination,3 the Commissioner employs a five-step, sequential
evaluation process.
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments set forth
in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
See 20 C.F.R. § 404.1520.
An affirmative answer to any of the above questions leads either to the next question, or,
on steps three and five, to the finding of a disability. A negative answer to any question, other
than step three, leads to a determination of “not disabled.” 20 C.F.R. § 416.920(a)-(f); McDaniel
v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4 This five-step analysis is a fair and just way
for determining disability applications to conform to the Social Security Act. See Bowen v.
Yuckert, 482 U.S. 137, 153 (1987)(citing Heckler v. Campbell, 461 U.S. 458, 461 (1983)) (The
3

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.
4

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI). The
same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited
as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981)(Unit A).

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use of the sequential evaluation process “contribute[s] to the uniformity and efficiency of
disability determinations”).
The burden of proof rests on the claimant for steps 1-4. On the fifth step, the burden
shifts to the ALJ, who must show that there are significant jobs in the economy that claimant can
perform. See Ostborg v. Comm’r of Soc. Sec., 610 Fed. Appx. 907, 915 (11th Cir. 2015);
McDaniel 800 F.2d at 1030. The ALJ must determine the claimant’s Residual Functioning
Capacity (“RFC”) for steps four and five. 20 C.F.R. § 404.1520(a)(4). The claimant’s RFC is
what he can still do in spite of his physical or mental impairment(s) based on all medical
evidence. Phillips v. Barnhart 357 F.3d 1232, 1239 (11th Cir. 2004). For the fifth step, the ALJ
relies on a vocational expert (VE) to determine if there are jobs in the national and local
economy that claimant can perform considering the claimant’s RFC, age, education, and
previous work experience. Id. At 1239-40. A vocational expert is an expert on what kinds of jobs
individuals can perform with regard to his capacity and impairment(s). Id. The ALJ must pose a
hypothetical scenario which includes all of the claimant’s impairment(s), to the VE for testimony
to be considered substantial evidence. Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)
(citing McSwain v. Bowen, 814 F.2d 617, 619-20 (11th Cir. 1987)).
The standard of review of the Commissioner’s decision is a limited one. This court must
find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42 U.S.C.
§405(g). “Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1158 (11th Cir. 2004)).

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III. BACKGROUND
A. The Commissioner’s Decision
The plaintiff was 43 years old which is defined as a younger individual age 18-44, on the
alleged disability onset date, has a limited education, and is able to communicate in English (R.
21-22). He has prior work history as a mechanic, where he repaired machines. (R. 14). The
plaintiff alleges he became disabled on March 5, 2013, due to fibromyalgia and obesity. (R. 13).
After the hearing, the ALJ found that Kittrell suffers from severe impairments of fibromyalgia
and obesity. (R. 13). The ALJ determined that the claimant has the (RFC) to perform sedentary
work as defined in 20 CFR § 404.1567(a). (R. 14).
To make this determination, the ALJ must follow a two-step process. (R. 14). The first
step is to determine whether there is an underlying medically determinable physical or mental
impairment(s)—i.e. impairment(s) that can be determined by medically acceptable diagnostic
techniques—that could be reasonably expected to cause claimant’s pain or other symptoms. (R.
14). The second step is to evaluate whether the underlying physical or mental impairment(s)
limit the claimant’s functioning due to the intensity, or persistence of the claimant’s symptoms.
(R. 14).
Here, the ALJ looked at the entirety of the medical records and the claimant’s reports to
make her determination. The ALJ found that Kittrell is not able to perform his past relevant work
as a mechanic based on limitations as prescribed by his treating physician. (R. 21). In
determining whether the underlying physical or mental impairment(s) limited the claimant’s
functioning, the ALJ relied on the expertise of a vocational expert (VE)5 by providing a series of
hypotheticals to determine if the claimant could find work with limitations as prescribed. (R. 6165). A person with the same vocational profile as the claimant, with the capacity to perform light
5

Joshua S. Tilton, Ph.D., C.R.C., L.R.C.

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work activity, with the following limitations; sit/stand intervals every 60 minutes, no climbing,
and no more than occasional overhead reaching, etc. would be limited to unskilled work activity
due to the side effects of pain and medication. With this hypothetical in mind, VE was able to
determine three examples of unskilled work activity the claimant could do with those limitations.
(R. 61-62).
(1) Storage facility rental clerk
a. Nationally there are approximately 416,000 jobs.
b. In Alabama there are approximately 8,700 jobs.
(2) Cashier
a. Nationally there are approximately 3,400,000 jobs.
b. In Alabama there are approximately 66,000 jobs.
(3) Self-service store attendant
a. Nationally there are approximately 4,200,000 jobs.
b. In Alabama there are approximately 57,000 jobs.
The second hypothetical given, with the claimant’s vocational profile, limited to
sedentary work activity; no climbing, occasional overhead reaching, etc. and limited to unskilled
work, the VE was able to determine three examples of work the claimant could with those
limitations. (R. 63).
(1) Food and beverage order clerk
a. Nationally there are approximately 227,000 jobs.
b. In Alabama there are approximately 2,700 jobs.
(2) Charge account clerk
a. Nationally there are approximately 215,000 jobs.
b. In Alabama there are approximately 3,800 jobs.
(3) Addressing clerk
a. Nationally there are approximately 109,000 jobs.
b. In Alabama there are approximately 710 jobs.
The third hypothetical given, with the addition of the sit/stand option to limitations given
in hypothetical two, all three of the jobs presented would still be available, in the same numbers.
(R. 64). The last hypothetical given, if an individual was only able to work six hours in a normal
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work day and that if the individual was absent three or more times in a typical month, would the
individual be able to perform competitive work activity, and the VE confirmed that it would be
unlikely based on his training and experience. (R. 65).
Because there are jobs that exist in significant numbers in the national and local economy
that the claimant can perform with consideration to claimant’s age, education, work experience,
and RFC, the ALJ determined that the claimant was not disabled. (R. 22).
B. The Plaintiff’s Claims
Kittrell raises the issue of whether the Commissioner’s decision should be reversed
because the ALJ erred in rejecting the medical opinions of record of Mr. Kittrell’s treating
specialist. (Doc. 12, Pl. Br. 3).
IV. DISCUSSION
Kittrell argues that the ALJ erred in rejecting the medical opinions of record of Mr.
Kittrell’s treating specialist. On May 15, 2007,6 Mr. Kittrell was seen by Wael Hamo, M.D. with
a history7 of upper back pain with features of left thoracic radiculopathy with negative MRI of
cervical and lumbosacral spine. During multiple consultations with Dr. Hamo, Kittrell reported
constant upper and lower back pain. Dr. Hamo’s assessments included “tenderness of the
thoracic spine area.” Treatment included occipital nerve block and trigger point injections, as
well as prescriptions to Lyrica, Cymbalta, Pristique, and Ultram for “fibromyalgia pain.” (R.
244-257).
However, the ALJ appropriately assessed the opinion of Dr. Hamo. When determining
the weight to give to a doctor’s opinion, an ALJ considers many factors, including whether the

6

Kittrell has medical records dating back to October 11, 2005. However, Plaintiff states the error relates
to May 15, 2007 forward.
7

Kittrell had seen Dr. Hamo since May 2, 2006.

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doctor examined the claimant, the evidence the doctor presents to support his opinion, whether
the doctor’s opinion is consistent with the record as a whole, the doctor’s specialty, and other
factors. See 20 C.F.R. § 404.1527(c); Schuhardt v. Astrue, 303 F. App’x 757 (11th Cir. 2008). A
treating doctor’s opinion is generally entitled to more weight, thus an ALJ must articulate
specific reasons for discounting a treating doctor’s opinion. See 20 C.F.R. § 404.1527(c)(2);
Phillips 357 F.3d at 1240 (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (The
ALJ must clearly articulate the reasons for giving less weight to the opinion of a treating
physician, and failure to do so is reversible error).
Absent “good cause,” the ALJ is to give medical opinions of treating physicians
“substantial weight.” Winschel 631 F.3d at 1179 (citing Lewis v. Callahan, 125 F.3d at 1440).
Good cause exists when the treating physician’s opinion is not supported by evidence, the
evidence supports and contrary finding, or the treating physician’s opinion was inconsistent with
the doctor’s medical records. See 20 C.F.R. § 404.1527(c); Phillips, 357 F.3d at 1241. Although
a physician’s opinion about what a claimant can or cannot do is relevant, these opinions are not
determinative because the ALJ has the responsibility of assessing the claimant’s RFC. See 20
C.F.R. § 404.1546(c); see also Beegle v. Soc. Sec. Admin., Comm’r, 482 F. App’x 483, 486 (11th
Cir. 2012)(“A claimant’s residual functional capacity is a matter reserved for the ALJ’s
determination, and while a physician’s opinion on the matter will be considered, it is not
dispositive”). There is substantial evidence to support the ALJ’s assessment of Dr. Hamo’s
opinion. (R. 19, 21, 328-29).
On June 9, 2014, Dr. Hamo completed the “Medical Statement Regarding Fibromyalgia
for Social Security Disability Claim” form. (R. 328-29). Dr. Hamo check-marked a list of
symptoms, history or widespread pain for three or more months, pain in eleven or more pressure

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points, stiffness, tension headaches, parethesias, and chronic fatigue. (R. 328). Dr. Hamo
indicated that Kittrell could work six hours a day, stand for ten minutes at a time and for a total
of 30 minutes in a workday, sit for 60 minutes at a time and for a total of less than six hours in a
workday. (R. 328). Kittrell could lift 10 or 20 pounds occasionally, not lift any weight
frequently, and occasionally bend, stoop, and raise his arms above shoulder level. (R. 328). Dr.
Hamo opined that Kittrell would miss more than four days of work each month and could not
work an eight hour day, five days a week from March 5, 2013, Kittrell’s alleged disability onset
date. (R. 329). The medical findings to support this assessment were listed as “chronic neck pain,
chronic upper and lower back pain, thoracic radiculopathy, thoracic and L [4-]5 spine disease,
fibromyalgia.” (R. 329).
The ALJ accepted Dr. Hamo’s limitations to standing for ten minutes at a time and sitting
for 60 minutes at a time and limiting Kittrell to lifting 10 pounds and occasionally reaching
overhead. (R. 14, 21, 328-29). However, the ALJ discussed how the remainder of Dr. Hamo’s
opinion is inconsistent with Kittrell’s treating records and Dr. Hamo’s more recent examination
findings. (R. 21). The ALJ devoted a substantial part of her decision discussing the relevant
medical evidence. (R. 14-21, 244-47, 177-83, 185-92, 198-99, 310-11, 334-35). Additionally, the
ALJ noted specifically why she found that Kittrell’s fibromyalgia was not disabling, as alleged
by Kittrell and Dr. Hamo. (R. 20).
Additional evaluation of Kittrell by a consulting M.D. Dimtcho Popov, at the State
Agency’s request, was conducted on April 30, 2013. Dr. Popov observed that Kittrell was not in
acute distress and recorded normal findings. (R. 20, 280-83). The ALJ also referenced the
treatment notes of Kittrell’s rheumatologist, Elizabeth Perkins, M.D. (R. 20, 314-15). On

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October 21, 2013, Dr. Perkins observed that Kittrell was not in acute distress and noted full
strength, intact sensation, full range of motion, and normal gait (R. 316).
Dr. Hamo’s own treatment records in June 2014 do not support Kittrell’s allegations of
legs going out or being unable to “do anything.” (R. 20). Kittrell was not followed on a monthly
basis, rather told to follow up three or four months after each visit with Dr. Hamo beginning in
May 2013. (R. 20, 286, 189, 335). Dr. Hamo’s treatment records during the relevant period of
time consistently show full strength in extremities, mild tenderness in left and right occipital
area, no restriction on neck movement, and normal gait. (R. 286, 288-89, 335). Dr. Hamo’s postalleged disability onset date treatment notes are largely unchanged from those treatment notes
dating back to 2006, years before Kittrell stopped working. (R. 244-57). These findings support
the ALJ’s determination that Dr. Hamo’s June 2014 opinion was not supported by Kittrell’s
treatment notes. (R. 20-21).
The ALJ referenced Dr. Hamo’s most recent treatment notes as not being fully consistent
with his contemporaneous opinion. (R. 21, 328-29, 334-35). The ALJ specifically highlighted
that although Dr. Hamo’s opinion was expressed on the “Medical Statement Regarding
Fibromyalgia for Social Security Disability Claim” form and listed fibromyalgia as a “finding,”
his treatment notes from the same day do not list fibromyalgia with the other diagnoses in the
“Assessment” section of the form. (R. 21, 328-29, 334-35). These inconsistencies further support
the ALJ’s determination to put little weight in Dr. Hamo’s opinion that Kittrell had disabling
limitations. (R. 21).
In short, the ALJ gave good reasons for her determination to assign little weight to Dr.
Hamo’s opinion, and is supported by substantial evidence. (R. 21, 328-29). Dr. Hamo’s opinion
was inconsistent with Kittrell’s treatment notes, including Dr. Hamo’s own records. (R. 21). The

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evidence as a whole supports the ALJ’s finding that Kittrell had the Residual Functional
Capacity to perform a range of sedentary work and was thus not disabled. (R. 14-23).
V. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the Court
AFFIRMS the Commissioner’s decision. A separate judgment will be entered.
DONE this 24th day of February 2017.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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