McKee v. Berryhill (CONSENT)

Filing 17

MEMORANDUM OPINION AND ORDER: The Commissioner's decision will be AFFIRMED by a separate judgment; In addition, it is hereby ORDERED that the plf's 12 motion for an award of EAJA fees is DENIED. Signed by Honorable Judge Susan Russ Walker on 7/23/2019. (cnw, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALESHIA P. McKEE,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of Social Security,1
Defendant.

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CASE NO. 2:18-cv-180-SRW

MEMORANDUM OPINION AND ORDER2
Plaintiff Aleshia P. McKee commenced this action on March 19, 2018, pursuant to
42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the Commissioner
denying her applications for supplemental security income benefits (“SSI”) and disability
insurance benefits. See Doc. 1; R 10–20. Plaintiff filed an application for disability benefits
on May 28, 2015, and for SSI benefits on July 15, 2015, alleging a disability onset date of
April 23, 2015, due to degenerative disc disease, cervical spinal stenosis, cervical
spondylosis, and lumbar spondylosis. See R. 228. On May 26, 2017, Administrative Law
Judge Ruth Ramsey (“the ALJ”) issued an adverse decision after holding a hearing on the

1

Andrew Saul was sworn in as the Commissioner of Social Security on June 17, 2019, and is
automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d). See also section 205(g) of
the Social Security Act, 42 USC § 405(g) (action survives regardless of any change in the person
occupying the office of Commissioner of Social Security).
For purposes of this appeal, the court uses the Code of Federal Regulations (“C.F.R.”) that was
effective until March 27, 2017, as that was the version of the C.F.R. in effect at the time the claim
was filed at the administrative level. See 20 C.F.R. Part 404 and 416, effective March 27, 2017;
see also https://www.ssa.gov/disability/professionals/bluebook/revisions-rules.html Q. 3.
2

plaintiff’s applications.3 See R. 10–20. The Appeals Council denied plaintiff’s request for
review, and the ALJ’s decision became the final decision of the Commissioner. See R. 15.
In the instant appeal, the plaintiff asks the court to reverse the Commissioner’s
adverse decision and award benefits or, in the alternative, to remand this cause to the
Commissioner under sentence four of 42 U.S.C. § 405(g). See Docs. 1 at 2; 12 at 12. This
case is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have
consented to entry of final judgment by the Magistrate Judge. See 28 U.S.C. § 636(c); see
also Docs. 7, 8. For the reasons stated herein, the court finds that the Commissioner’s
decision is due to be affirmed.
In addition, the plaintiff moves for an award of reasonable attorney’s fees pursuant
to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 241(d).4 See Doc. 12 at 12. This
motion is due to be denied.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this court is to determine whether the decision of the Commissioner is
supported by substantial evidence and whether the proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002). This court must “scrutinize the record as a whole to determine if the

3

Attorney Sheila Kay Dansby appeared with the plaintiff at the hearing before the ALJ, and she
is plaintiff’s counsel of record before this court. See R. 37, Doc. 1.
4

Plaintiff’s brief states “Mr. Crittenden asks this Court to award reasonable attorney’s fees
pursuant to the Equal Access of Justice Act.” Doc. 12 at 12. The court assumes this was a
scrivener’s error and the request was intended to be made by Ms. McKee.
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decision reached is reasonable and supported by substantial evidence.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” Id. It
is “more than a scintilla, but less than a preponderance.” Id. A reviewing court “may not
decide facts anew, reweigh the evidence, or substitute [its] decision for that of the
[Commissioner].” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). In other words,
this court is prohibited from reviewing the Commissioner’s findings of fact de novo, even
where a preponderance of the evidence supports alternative conclusions.
While the court must uphold factual findings that are supported by substantial
evidence, it reviews the ALJ’s legal conclusions de novo because no presumption of
validity attaches to the ALJ’s determination of the proper legal standards to be applied.
Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). 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, it must reverse the ALJ’s
decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
To qualify for SSI and establish his or her entitlement for a period of disability, a
claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder. The Regulations define “disabled” as “the inability to do 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 twelve (12) months.” 20 C.F.R. §§
404.1505(a), 416.905(a). To establish an entitlement to disability benefits, a claimant must
provide evidence about a “physical or mental impairment” that “must result from
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anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §§
404.1508, 416.908.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). The Commissioner must
determine in sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the Commissioner;

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to a formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562–63 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). The sequential
analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will automatically
be found disabled if she suffers from a listed impairment. If the claimant
does not have a listed impairment but cannot perform her work, the burden
shifts to the [Commissioner] to show that the claimant can perform some
other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show that such work exists in the national economy in
significant numbers. Id.
ADMINISTRATIVE HEARING
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At the hearing before the ALJ on January 9, 2017, plaintiff testified that she is
married with two adult children. Her 22-year-old daughter moved back home to help care
for her. Plaintiff receives food stamps and Medicaid. Plaintiff’s husband drove her to the
hearing. She drives only occasionally herself, ten miles at a time at most if she needs to go
to the post office. Plaintiff has two years of college and a licensed practical nurse (LPN)
degree. She worked as an LPN for eight years. Prior to working as an LPN, she worked as
a certified nursing assistant off and on from 1989 until 2007, when she obtained her LPN
license. Other prior work included collections for a trash disposal company,5 and work in
a machine plant and a cotton mill. R. 42–45.
Plaintiff testified that she is unable to work due to pain across her lower back that
runs into her legs, frequent falling, and numbness and tingling in her hands. She takes
multiple medications for pain and anxiety, and to help her sleep. Side effects from her
medications include loss of appetite, dry mouth, sleepiness, dizziness, and nausea. She has
been undergoing extensive physical therapy, but she testified that it has not helped. She
was getting injections that did help, but because she could only get short-term relief from
these, her doctor discontinued the injections until really needed. R. 45–47, 51.
Plaintiff smokes five to six cigarettes per day, but is trying to quit. On a typical day,
she wakes up, takes her medication, and tries to eat something. Her daughter cooks
breakfast for her. Plaintiff spends most of her day lying down. She uses a heating pad or
heated blanket. She tries to wash dishes but has to take frequent breaks to sit. She can
sweep some, but cannot mop or vacuum. Her daughter does the grocery shopping. Plaintiff
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She denied being able to do collections work because she cannot sit for long periods of time. R.
52.
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does not participate in any activities outside of the home because she falls so much. She
falls sometimes once per month and at other times up to twice per week. This has occurred
for about eight months. Her doctors attribute her falling to problems with her sacroiliac
joints. R. 47–49.
Plaintiff can lift a small laundry basket but it has to be up high. She cannot bend
over to pick it up. She does not help care for her grandchildren other than to get them
something from the refrigerator. Her daughter watches children in their home, but plaintiff
does not tend to them. R. 49.
Plaintiff had surgery on her neck in 2015. It helped with her headaches, but the
problems with her hands began occurring after that. She has a history of low back surgery.
She still has a lot of pain from that and her “sacroiliacs pop out.” R. 51. She has been
diagnosed with fibromyalgia. She has days on which she cannot stand to be touched
because she hurts so much all over. R. 50–51.
The ALJ took testimony from a VE who identified five past relevant occupations
for plaintiff, including licensed practical nurse, nurse’s aide, debt collection or skip tracer,
weaver, and short-order cook. The VE was asked to assume hypothetically an individual
of plaintiff’s age, education, and work experience who is capable of sedentary work; who
will never climb ropes, ladders, scaffolds; will never balance, crawl, kneel, or crouch; will
only occasionally climb stairs or ramps; will not drive a commercial vehicle or operate foot
controls; and will avoid concentrated exposure to extreme temperatures and hazardous
conditions. Based on the hypothetical, the VE testified that the individual could perform
plaintiff’s past relevant work as a skip tracer. Additionally, the VE identified jobs in the
national economy that the hypothetical individual could do, including food and beverage
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order clerk, addressing clerk, and charge account clerk. If the individual were to be absent
three or more times per month or be off task 20 percent of the day, there would be no
competitive employment available. R. 57–60.
ALJ’s DECISION
In her decision, the ALJ found that the claimant suffered from the severe
impairments of degenerative disc disease, cervical spinal stenosis, cervical spondylosis,
lumbar spondylosis, and fibromyalgia. See R. 13. The ALJ concluded that the claimant did
not have an impairment or combination of impairments that met or medically equal a listed
impairment. See R. 14. The ALJ stated that she considered all of the claimant’s
impairments individually and collectively in determining the plaintiff’s residual functional
capacity (“RFC”). See R. 16.
The ALJ found that since April 23, 2015, plaintiff had the RFC to perform a limited
range of sedentary6 work as defined in 20 CFR §§ 404.1567(a) and 416.967(a). Id. The
ALJ found that plaintiff is unable to climb ladders, ropes or scaffolds, and also is unable to
balance, crawl, kneel, or crouch. R. 16. Plaintiff is limited to occasional stair and ramp
climbing, is unable to drive commercial vehicles or operate foot controls, and should avoid
concentrated exposure to temperature extremes, wetness, humidity, and hazardous
conditions. Id.

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Under the regulations, “[s]edentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking and standing
is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).
7

At step four, the ALJ found that the plaintiff was capable of performing her past
work as a sedentary, unskilled collections worker. See R. 18. Based on the VE’s testimony,
the ALJ made the alternative step five finding that the plaintiff could perform other jobs
that are available in the national economy, including representative jobs such as sedentary,
unskilled food and beverage order clerk; sedentary, unskilled addressing clerk; and
sedentary, unskilled charge account clerk. See id. The ALJ’s findings resulted in a
determination that the plaintiff has not been under a disability since May 28, 2015, through
the date of the decision. Id.
ISSUES ON APPEAL
Plaintiff raises two issues on appeal, both challenging the ALJ’s handling of medical
opinions. First, she contends that the ALJ failed to afford appropriate weight to the opinion
of her treating physician, Melvin Russell, M.D.,7 and to explain properly the reasons for
the weight she assigned that opinion. See Doc. 12 at 3–9. Second, she claims that the ALJ
erred in failing to give appropriate weight to the opinions of consulting examiner,
Alphonzo Vester, M.D., and in failing to explain her reasons therefor. Id. at 9–11. The
Commissioner urges that the decision should be affirmed because the ALJ properly
evaluated the opinions of Dr. Russell and Dr. Vester, and because substantial evidence,
which the ALJ articulated, supported the ALJ’s findings that the doctors’ opinions were
due only partial weight. Doc. 13 at 4–12. The court agrees with the Commissioner.
DISCUSSION

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Both parties acknowledge that the ALJ mistakenly attributed the December 2016 opinion to Ross
Barnett, M.D., see R. 18, instead of Dr. Russell. See Docs. 12 at 4, n.1; 13 at 5, n.4. This is not
raised as an issue on appeal.
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A. Opinions of treating physician Dr. Russell
Plaintiff contends that the ALJ failed to attribute appropriate weight to the opinion
of her treating physician, Dr. Russell.8 See Doc. 12. The Commissioner responds that Dr.
Russell’s opinions consisted of a series of checkbox notations containing no reasoning or
analysis and can be considered, at best, weak evidence. In addition to the opinions’ having
no supporting explanation, the Commissioner submits that Dr. Russell’s opinions were
inconsistent with the medical record, which showed signs of medical improvement. See
Doc. 13.
On December 14, 2016, Dr. Russell completed a physical capacities evaluation and
clinical assessment of pain form. R. 770–72. Dr. Russell indicated his view that plaintiff
can lift and carry up to 20 pounds, but no more; she can sit for four hours and walk or stand
for four hours in an 8-hour day; she can grasp frequently, push and pull occasionally, but
never use foot controls; she can never crouch, kneel, crawl or climb and can only
occasionally stoop, balance, and reach. R. 770. She should never be exposed to unprotected
heights, moving machinery, or temperature extremes. R. 770. He further said that plaintiff’s
pain levels were incapacitating and she is unable to function at any level of productive
work. R. 771–72.
In discussing the physical capacities evaluation and clinical assessment of pain form
completed by Dr. Russell, the ALJ stated as follows:

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The Commissioner argues, in passing, that it is questionable whether Dr. Russell could be
considered a treating physician, as there is only one record of his treating plaintiff in May 2012
(R. 695–97) prior to his completion of the December 2016 assessment. See Doc. 13 at 5, n.5.
Plaintiff states in her brief that Dr. Russell has treated her since May 2012. Doc. 12 at 4. It appears
that Dr. Russell is part of a group at which plaintiff has seen a number of doctors. In any event,
both parties have addressed the issue assuming Dr. Russell is a treating physician.
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[N]o more than partial probative weight is assigned to findings reported
by Dr. Ross Barnett, the claimant’s primary treating physician, in
December 2016. While the treating physician opined that the claimant can
lift up to twenty pounds, occasionally, he also opined that the claimant’s
intractable pain renders her unable to participate in work at a productive
level. Again, Dr. Barnett’s assessment is not consistent with the signs of
medical improvement recorded throughout the medical record and
acknowledged by the claimant in her own statements regarding her
activities of daily living.
R. 18.
The opinion of a treating physician “must be given substantial or considerable
weight unless good cause is shown to the contrary.” Phillips, 357 F.3d at 1240 (quoting
Lewis, 125 F.3d at1440) (internal quotation marks omitted). “Good cause” exists when:
•
•
•

the treating physician’s opinion was not bolstered by the evidence,
the evidence supported a contrary finding; or
the treating physician’s opinion was conclusory or inconsistent with his or her
own medical records.

Id. at 1241 (citation omitted). The Commissioner must specify what weight is given to a
treating physician’s opinion, and any reason for giving it no weight at all. See MacGregor,
786 F.2d at 1053 (citing Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir. 1985), and
Wiggins v. Schweiker, 679 F.2d 1387, 1389-90 (11th Cir. 1982)). Failure to do so is
reversible error. Id. (citations omitted).
Plaintiff is correct that an ALJ is obligated to state the weight attributed to a doctor’s
opinion and the reasons for the weight attributed. This court has explained:
Weighing the opinions and findings of treating, examining, and nonexamining physicians is an integral part of steps four and five of the ALJ’s
sequential evaluation process for determining disability. In Winschel v.
Commissioner of Social Security, 631 F.3d 1176, 1178–79 (11th Cir. 2011),
the Eleventh Circuit held that whenever a physician offers a statement
reflecting judgments about the nature and severity of a claimant’s
impairments, including symptoms, diagnosis, and prognosis, what the
claimant can still do despite his or her impairments, and the claimant’s
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physical and mental restrictions, the statement is an opinion requiring the
ALJ to state with particularity the weight given to it and the reasons therefor.
Id. (citing 20 C.F.R. §§ 404.1527(a)(2), 416.927(a) (2); Sharfarz v. Bowen,
825 F.2d 278, 279 (11th Cir. 1987)). The Eleventh Circuit stated that “‘[i]n
the absence of such a statement, it is impossible for a reviewing court to
determine whether the ultimate decision on the merits of the claim is rational
and supported by substantial evidence.’” Id. (quoting Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir. 1981)). See also MacGregor v. Bowen, 786 F.2d
1050, 1053 (11th Cir. 1986) (failure to state with particularity the weight
given to opinions and the reasons therefor constitutes reversible error); Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (failure to clearly
articulate reasons for giving less weight to the opinion of a treating physician
constitutes reversible error).
Rudolph v. Berryhill, 2018 WL 1527827, at *5 (M.D. Ala. 2018) (quoting Albery v.
Comm’r of Soc. Sec., 2012 WL 2589297, at *7 (M.D. Fla. June 7, 2012), report and
recommendation adopted, 2012 WL 2589267 (M.D. Fla. 2012), and citing Winschel, 631
F.3d at 1179)).
Here, the ALJ gave Dr. Russell’s opinion “partial weight.” This is not “substantial
weight.” However, an ALJ is not obligated to accept a treating physician’s opinion if the
opinion is conclusory, it is not supported by the evidence, the evidence supports a contrary
finding, or it is inconsistent with the physician’s own records. See 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2), Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159
(11th Cir. 2004); Phillips v. Barnhart, 357 F.3d 1232, 1240–41 (11th Cir. 2004)). Plaintiff
complains the ALJ’s reliance on plaintiff’s sporadic daily activities is an insufficient reason
for discrediting Dr. Russell’s opinion that she is unable to work. The Eleventh Circuit has
recognized that participation in everyday activities such as housework, for a short duration,
does not necessarily disqualify a claimant from disability. See Lewis v. Callahan, 125 F.3d
1436, 1441 (11th Cir. 1997). Plaintiff’s reported activities were not, however, the only
basis for discounting Dr. Russell’s opinions. The ALJ also specifically noted the medical
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improvement referenced in the records as a basis for attributing less than full weight to Dr.
Russell’s opinions.
In discussing the medical evidence, the ALJ observed that plaintiff has undergone
corrective surgeries for her lower back and cervical spine, and medical improvement from
those surgeries has been noted in the medical records. The ALJ states:
The claimant has undergone fusion surgery to correct the dysfunction of
her lower back. Sharply inconsistent with her allegations of chronic pain,
the recent treatment record shows that she has presented for treatment in
no acute distress and with a normal gait, normal strength in her
extremities, and normal deep tendon reflexes. Consistent with those
findings, the claimant's treating neurosurgeon recommended that she
undergo epidural blockages in her lumbar spine in July 2015 and advised
her that she could return to work after the procedure.
The claimant’s pain and limitation of motion in her lower back appears to
have improved subsequent to corrective surgery. More specifically, the
record shows that she presented for post-operative treatment with a normal
gait and no difficulties with standing. However, the record shows that she
continued to suffer from pain and limited motion in her neck secondary to
the degenerative disease process in her cervical spine in June 2015. The
claimant underwent corrective surgery on her neck later that month.
Shortly after the procedure on her neck, the claimant began a course of
physical therapy. Sharply inconsistent with the allegations of the claimant,
progress notes recorded by her physical therapist indicate that although
she continued to suffer from pain and limitation motion in her neck, left
shoulder, and left elbow, she had made “remarkable progress” toward a
restoration of motion in September 2015. Sharply inconsistent with the
claimant’s allegations that she appreciates unacceptable levels of pain
relief through compliance with her medications, the claimant told her
treating physician that her pain relief was “adequate” in May 2016.
Consistent with that statement, the record shows that she exhibited no
more than a mildly reduced range of motion in her neck and a moderately
reduced range of motion in her back at that time. Moreover, the record
shows that a diagnostic imaging study of her spine performed in August
2016 was normal.
R. 17 (citations omitted).

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Thus, the ALJ cited reasons in the record for her findings. Nevertheless, the plaintiff
argues that the records of her treating pain management specialist support her complaints
of pain and reveal that physical therapy was not effective. See Doc. 12 at 8–9. While the
plaintiff disagrees with the ALJ’s factual findings, this court cannot reweigh the evidence
and is limited to determining whether there is substantial evidence to support the
Commissioner’s decision. See Dyer, 395 F.3d at 1210. Here, the ALJ stated the weight she
attributed to Dr. Russell’s opinion and recounted her reasons therefor. Based on the court’s
careful scrutiny of the record, it concludes that the ALJ’s decision and handling of the
medical opinions of Dr. Russell are based on substantial evidence and the Commissioner’s
decision is due to be affirmed on this issue.
B. Opinions of consultative examiner Dr. Vester
The opinion of a non-treating doctor, such as a one-time examiner, is not entitled to
any special deference or consideration. See Crawford, 363 F.3d at 1160; McSwain v.
Bowen, 814 F.2d 617, 619 (11th Cir. 1987). A doctor is not a treating doctor if the
claimant’s relationship with the doctor is based not on the claimant’s medical need for
treatment or evaluation, but solely on the claimant’s need to obtain a report in support of
his or her claim for disability. See 20 C.F.R. §§ 404.1502, 416.902.
Plaintiff saw Alphonza Vester, M.D., for a one-time consultative examination on
October 2015. Dr. Vester diagnosed degenerative disease of the spine, cervical and lumbar;
fibromyalgia; obesity; essential hypertension; and carpal tunnel syndrome left wrist
(possible). He commented, “I think the claimant is severely limited by her lumbar spine
disease. I think she is severely limited by fibromyalgia. I think she is moderately limited
by her cervical spine disease.” He further stated:
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In view of findings on examination, I consider the claimant mildly limited
with sitting. I believe she is severely limited with standing, walking,
lifting, and carrying objects. I think she is not significantly limited with
handling objects. She is not limited with hearing or speaking. I believe
her limitation with traveling would be moderate to severe.
R. 693. Plaintiff complains that the ALJ did not specify what part of the doctor’s opinion
was given weight. (Doc. 12 at 10). However, a review of the ALJ’s discussion of Dr.
Vester’s opinion reflects that the ALJ stated the weight attributed to Dr. Vester’s opinion,
the reasons she discounted the opinion, and those parts of the opinion the ALJ found
consistent or inconsistent with the medical record.
In discussing Dr. Vester’s opinions, the ALJ wrote as follows:
The undersigned is cognizant that Dr. Alphonza Vester performed a
consultative physical examination on the claimant in October 2015 and
determined that she is severely limited by lumbar spine disease and
fibromyalgia. More specifically, the consulting physician concluded that
the claimant was (sic) severely limited abilities to stand, walk, lift, and
carry objects. No more than partial probative weight is assigned to that
finding because it is inconsistent with magnetic resonance imaging studies
and examinations by the claimant’s treating physicians that clearly
demonstrate that her conditions are improving. It is noted that Dr. Vester’s
evaluation led to a determination that her ability to sit is mildly limited by
her conditions, which would not preclude her participation in sedentary
work.
R. 18 (citations omitted). Thus, the ALJ adopted Dr. Vester’s opinion that plaintiff is only
mildly limited in her ability to sit and concluded that such opinion would not preclude
sedentary employment. With regard to Dr. Vester’s opinion that plaintiff was severely
limited in her ability to stand, walk, lift, and carry objects, the ALJ found this inconsistent
with the MRI studies and the medical records showing improvement. The plaintiff fails to
point to any evidence demonstrating that she is more limited than assessed by the ALJ. The
ALJ’s decision articulates the basis for her discounting the consultative examiner’s opinion
14

and she cites to substantial evidence in the record supporting her decision. Accordingly,
the decision is due to be affirmed.
CONCLUSION
Upon consideration of the parties’ briefs and the record, the Commissioner’s
decision is based on substantial evidence and is in accordance with controlling law. The
Commissioner’s decision will be AFFIRMED by a separate judgment.
In addition, it is hereby
ORDERED that the plaintiff’s motion for an award of EAJA fees is DENIED. See
Doc. 12.
Done, on this the 23rd day of July, 2019.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge

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