Woods v. Astrue

Filing 17

MEMORANDUM OPINION AND ORDER affirming the decision of the Commissioner. Signed by Honorable Wallace Capel, Jr on 2/13/2009. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION R U B E N WOODS, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 3:07cv1122-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Ruben Woods applied for disability insurance benefits pursuant to Title II of t h e Social Security Act, 42 U.S.C. § 401 et seq. (2000) (hereinafter "the Act"). His a p p lic a tio n was denied at the initial administrative level. Plaintiff then requested and re c eiv e d a hearing before an Administrative Law Judge (ALJ). Following the hearing, the A L J also denied the claims. The Appeals Council rejected a subsequent request for review. T h e ALJ's decision consequently became the final decision of the Commissioner of Social S ec u rity (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The c a s e is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 6 3 6 (c ), both parties have consented to the conduct of all proceedings and entry of a final

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 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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ju d g m e n t by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (D o c . #10); Def.'s Consent to Jurisdiction (Doc. #11). Based on the Court's review of the rec o rd and the briefs of the parties, the Court AFFIRMS the decision of the Commissioner. II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006). (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 im p a i r m e n t s set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (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? A n affirmative answer to any of the above questions leads either to the next q u e sti o n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ."

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. 2

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M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience. E a c h factor can independently limit the number of jobs realistically available to an
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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).
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See 20 C.F.R. pt. 404 subpt. P, app. 2. 3

in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s .

W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). III. ADMINISTRATIVE PROCEEDINGS P la in tif f was forty-nine years old and had completed the tenth grade at the time of the h e a rin g before the ALJ. (Tr. 50, 266). Plaintiff's primary past relevant work experience in v o l v ed repairing sewer lines and dishwashing. (Tr. 85). Following the administrative

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h e a rin g , and employing the five-step process, the ALJ found Plaintiff had not engaged in su b stan tial gainful activity since the alleged onset date of November 8, 2002 (Step 1). (Tr. 1 9 ) . At Step 2, the ALJ found that Plaintiff suffers from the "following severe impairments: lu m b a r degenerative disc disease, status post lumbar laminectomy performed in March 2003, a n d lumbar spondylosis with post-laminectomy syndrome." (Tr. 19). The ALJ nonetheless f o u n d Plaintiff "does not possess an impairment or combination of impairments that meets o r medically equals one of the listed impairments." (Tr. 20). Next, the ALJ found that P lain tiff retains the RFC to "for a range of light work," although "in the performance of work a c tiv ity, [Plaintiff] is to perform no pushing and pulling with lower extremities." The ALJ f u rth e r found that Plaintiff should be "limited to performing simple, routine and repetitive ta s k s as consistent with unskilled work activity." (Step 3). (Tr. 20). At Step 4, the ALJ f o u n d that Plaintiff could not perform his past relevant work. (Tr. 24-25). At Step 5, and a f ter obtaining the testimony of a vocational expert, the ALJ determined that, based on his a g e , education, past work experience, and RFC, Plaintiff could perform jobs that exist in s ig n if ic a n t numbers in the national economy. (Tr. 25-26). Consequently, the ALJ found P la in tif f had not been disabled since the alleged onset date. IV. P L A I N T I F F 'S CLAIMS P la in tif f sets forth five claims in challenging the Commissioner's decision: (1) that th e ALJ failed to "give proper consideration to the side effects of the many medications P la in tif f has taken since the date of his injury"; (2) that the ALJ erred in according less than 5

f u l l credibility to Plaintiff's statements regarding his symptoms and their "intensity, p e rs is te n c e, and limiting effects"; (3) that the "ALJ committed error in the method and m a n n e r in which he evaluated the records of Dr. Woodfin, the consult[ative] physician"; (4) th a t the ALJ erred in affording "the State Agency RFC Assessment for light work `significant an d concurring weight'"; and (5) that the ALJ improperly discounted the responses of Dr. A u e rb a c h to the medical questionnaire propounded to him by Plaintiff's counsel in advance o f the hearing. The Court will address each of Plaintiff's clams in turn. V. DISCUSSION A. T h e ALJ's treatment of the side effects of Plaintiff's medications.

P la in tif f contends that the ALJ erred in failing to give proper consideration to the side e f f e c t s of the various medications given Plaintiff since his injury. He states as follows: P la in tif f stated in his testimony that he did not drive any longer because of the s id e effects of his medications. The ALJ referred to the pain medications at d if f e re n t points but nowhere did he discuss or give any consideration to the lis te d and stated side effects for Vioxx, Methadone, Naprosyn, Pamelor, etc. T h e medications had labels with warnings as to side effects and attempting to o p e r a te a vehicle or machinery while taking the medications. (D o c . 12 at fourteenth unnumbered page). Defendant maintains Plaintiff's subjective te stim o n y about side effects at the hearing was properly weighed by the ALJ against the lack o f such evidence in the record, which otherwise documented many of Plaintiff's pre-hearing c o m p lain ts about medication side effects. Thus, Defendant argues, the ALJ was justified in g iv in g limited consideration to the alleged side effects complained of by Plaintiff. (Doc. #15 6

at 4-5). A t the hearing before the ALJ, Plaintiff offered testimony that his prescribed m e d i c a tio n s make him drowsy, and that he therefore had not driven in at least eight months. (T r. 273). Among the medications Plaintiff testified to taking was carisoprodol, the generic n a m e for the popular drug Soma, which was originally prescribed by Dr. Auerbach to P la in tif f in September, 2004, after Plaintiff complained of "mild insomnia," (Tr. 231) and w h ic h Plaintiff testified that he took three times a day. (Tr. 274). In March, 2005, Plaintiff " d e n ie d insomnia" to Dr. Auerbach. (Tr. 228). Two months later, Dr. Auerbach recorded th a t Plaintiff "is still having a lot of trouble sleeping at night." (Tr. 227). Over the next few m o n ths, Plaintiff continued to complain of "insomnia" and "trouble sleeping" to Dr. A u e rb a c h . (Tr. 257-260). Then, in August, 2005, Plaintiff once again "denied insomnia." (T r. 256). In March, 2006, Plaintiff again complained of insomnia to Dr. Auerbach. (Tr. 2 5 1 ) . Thus, it is apparent from the record that, while Plaintiff's efforts to deal with his in s o m n ia achieved mixed results at best, he mostly complained of being unable to sleep.5 W h a t is also apparent from a review of the record is that Plaintiff never once complained to D r. Auerbach that his medications made him sufficiently drowsy to prohibit driving, operate a n y kind of equipment, or undertake other daily life activities. When Plaintiff did complain Plaintiff's hearing testimony about his sleep (or lack thereof) and drowsiness was similarly inconsistent. At the hearing, Plaintiff at one point stated, "[p]ills make me sleepy." (Tr. 271). A few questions later, however, Plaintiff testified that "I be taking my pills and stuff but I can't sleep." (Tr. 272). In light of the inconsistencies surrounding Plaintiff's various representations, it was not unreasonable for the ALJ to deem Plaintiff's assertion that his medications make him prohibitively drowsy less than wholly credible. 7
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o f side effects to prescribed medications, Dr. Auerbach dutifully noted the complaints and a d ju s te d his medications accordingly. See, e.g., Tr. 251. In any event, given the paucity in th e record of objective evidence corroborating Plaintiff's subjective testimony about his a lleg e d drowsiness due to medications, the ALJ was justified in discounting the credibility o f such testimony. Accordingly, the ALJ's consideration of the side effects of Plaintiff's m e d ic a tio n was appropriate and is supported by substantial evidence. B. T h e ALJ's treatment of Plaintiff's testimony about the frequency, intensity, a n d limiting effects of his symptoms.

D e e m in g the ALJ's findings "absurd," Plaintiff contends the "ALJ erred at Page 4, P a ra g ra p h 4 (TR 20) and Page 8, Paragraph 2 (TR24) wherein he only gave `some c re d ib ility' and `not entirely credible' to Plaintiff's stated symptoms, intensity, persistence, a n d limiting effects of his symptoms." (Doc. #12 at fourteenth and fifteenth unnumbered p a g e ). Plaintiff argues that the record, particularly the treatment notes of Dr. Auerbach, c o r ro b o r a te Plaintiff's testimony about his symptoms and the resulting limitations. D e f en d a n t maintains that the ALJ gave appropriate weight to Plaintiff's allegations after b a la n c in g his subjective testimony with the evidence in the record. P lain tiff testified that he endured constant pain in his lower back and right leg 6 (Tr. 2 6 9 -7 0 ), and that, as a result of the pain and his medications, he is prohibited from doing Elsewhere in the record, Plaintiff indicated that his left leg was a source of constant pain. See Pain Questionnaire (Tr. 77). Plaintiff's testimony at the hearing concerning his left leg indicated only that occasionally the pain from his right leg "move from one to the other one but mostly I can feel it in my right." (Tr. 269-70). 8
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v irtu a lly anything other than eating, sleeping, sitting, and standing or walking for small p e rio d s. In light of the ALJ's view of available medical records, which the ALJ meticulously s u m m a riz e d in the course of his credibility findings (Tr. 20-24), the ALJ ultimately afforded P la in tif f 's complaints about the severity and limiting effects of his pain only limited cre d ibility. (Tr. 20, 24). T h e Eleventh Circuit Court of Appeals has articulated a three-part `pain standard' that applies when a claimant attempts to establish disability through his or h e r own testimony of pain or other subjective symptoms. The pain standard requires (1) e v id e n c e of an underlying medical condition and either (2) objective medical evidence that c o n f irm s the severity of the alleged pain arising from that condition or (3) that the objectively d e te rm in e d medical condition is of such a severity that it can be reasonably expected to give ris e to the alleged pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). "If the ALJ decides not to credit a c la im a n t's testimony as to her pain, he must articulate explicit and adequate reasons for doing s o . . . . A clearly articulated credibility finding with substantial supporting evidence in the re c o rd will not be disturbed by a reviewing court." Foote v. Chater, 67 F.3d 1553, 1561-62 (1 1 th Cir. 1995). If this Court finds that substantial evidence, i.e., "more than a scintilla, but less than a preponderance," supports the ALJ's credibility finding, then the ALJ's d e te rm in a tio n may not be disturbed. In this case, the ALJ clearly found the existence of an underlying medical condition. H o w e v e r, the ALJ did not find that "objective medical evidence" confirmed the severity of P lain tiff 's allegations of pain, or that Plaintiff's medical condition was so severe that it could 9

h a v e been reasonably expected to cause pain as severe as that alleged by Plaintiff. In re a c h in g this conclusion, the ALJ found Plaintiff's testimony about the severity of his pain " n o t entirely credible." Substantial evidence supports the ALJ's credibility finding. This e v id e n c e includes, as the ALJ noted, the questionnaire completed by Plaintiff, which in d ic a te d that he was capable, minimally, of driving his daughter to school and walking about h i s home. (Tr. 79). More important, however, were Dr. Auerbach's opinion that Plaintiff c o u ld perform "light duty" work (Tr. 236, 238-240) and the State agency RFC assessment w h ic h also cleared Plaintiff for light work. (Tr. 219-226). While, in answering the

q u e stio n n a ire given him by Plaintiff's counsel (Tr. 250), Dr. Auerbach arguably wavered f ro m his opinion that Plaintiff could perform light work, the ALJ was justified in relying u p o n all of the evidence in the record, including Dr. Auerbach's opinions which were not re n d e re d solely in preparation for the hearing. Likewise, although Plaintiff complained of co n stan t, disabling pain to Dr. Auerbach, it is important to recognize Dr. Auerbach's o b s e rv a tio n that Plaintiff's pain was treatable and had improved with medication. (Tr. 251, 2 5 5 , 256, 259). In sum, there are sufficient inconsistencies between Plaintiff's complaints,7 h is testimony,8 and the findings of Dr. Auerbach, that the ALJ was justified in finding P la in tif f 's testimony regarding the intensity, duration, and limiting effects of his pain "not

Plaintiff's characterization of his pain has generally oscillated between "moderate" and improved with medication to "severe" and disabling. As noted supra, Plaintiff has given alternating and/or conflicting accounts of his pain levels, his sleeping problems, and even which leg suffers from constant pain. 10
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e n tire ly credible" and therefore placing greater reliance on the medical evidence before him, in c lu d in g treating physician and State agency opinion which deemed Plaintiff capable of p e rf o rm in g light work. C. T h e ALJ's evaluation of Dr. Woodfin's records.

P la in tif f contends the "ALJ committed error in the method and manner in which he e v a lu a te d the records of Dr. Woodfin, the consult[ative] physician at Page 8, Paragraph 4 (T R 24)." (Doc. #12 at fifteenth unnumbered page). Plaintiff objects to the ALJ's

d e te rm in a tio n that, although "Dr. Woodfin's objective findings on examination are afforded s ig n if ic a n t weight," his conclusion that Plaintiff was incapable of lifting or carrying anything is "inconsistent with his clinical findings" and therefore entitled to no weight. (Tr. 24). S p e c if ica lly, Plaintiff claims that "Dr. Woodfin gave a fair, impartial, and medically e x p e rie n c ed opinion about the state of the distress and chronic pain and physical limitation o f Plaintiff." (Doc. #12 at fifteenth unnumbered page). Defendant maintains that

" [ s]u b s ta n tia l evidence supports the ALJ's finding that Dr. Woodfin's opinion was not e n title d to significant weight." (Doc. #15 at 8). "The ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion." Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985).9 In this in s ta n c e, the ALJ viewed the following evidence as contrary to Dr. Woodfin's opinion that
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It is important to note that, because Dr. Woodfin was not a treating physician, the "good cause" finding required before the ALJ may properly reject such opinion, see Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004), was not required. 11

P lain tiff could not lift or carry anything: the objective clinical results of Dr. Woodfin's e x a m in a tio n of Plaintiff, which indicated that Plaintiff maintained full motor and pinch/grip s tre n g th in his upper extremities (Tr. 217), and Dr. Auerbach's opinion, rendered before and a f f irm e d after Dr. Woodfin's December 19, 2003, examination, that Plaintiff is capable of p erf o rm ing light work (Tr. 239, 242). See ALJ's Decision (Tr. 21-22). The ALJ also was u n d o u b te d ly cognizant that Dr. Woodfin's opinion was essentially an endorsement of P lain tiff 's representation to Dr. Woodfin that he was incapable of lifting and carrying. (Tr. 2 1 7 ). Given the lack of any objective evidence supporting the sweeping and substantial lim ita tio n opined by Dr. Woodfin and the ALJ's findings regarding Plaintiff's credibility, the A L J 's refusal to accept Dr. Woodfin's assent to Plaintiff's representation that he cannot p e rf o rm lifting or carrying is supported by substantial evidence. D. T h e ALJ's treatment of the State Agency RFC Assessment.

P l a in t i f f contends the "ALJ erred at Page 8, Paragraph 5, of his decision (TR 24) w h e re in he gave the State Agency RFC Assessment for light work `significant and c o n c u rrin g weight.'" (Doc. #12 at sixteenth unnumbered page). Plaintiff claims that the " A L J failed to clearly articulate the reasons for giving the State Agency Assessment `s ig n if ic a n t and concurring weight' while failing to articulate reasons for giving less weight to the opinions of the treating physicians," in violation of 20 C.F.R. § 404.1527(d)(2). Id. D e f en d a n t maintains that the ALJ's decision to afford the State Agency RFC assessment " s ig n if ic a n t and concurring weight" is supported by substantial evidence. 12

T o the extent Plaintiff's claim can be read to assert that the ALJ was required, by 20 C . F .R . § 404.1527(d)(2), to articulate the reasons why he afforded the State agency RFC a ss e ss m e n t "significant" weight, the claim is without merit. The ALJ is not required to give re a so n s for accepting the opinion of State agency medical consultants. Indeed, as noted by th e ALJ in his opinion, the ALJ is required, by SSR 96-6p, to regard State agency findings a s "expert opinion evidence" to be evaluated along with all other medical evidence in the re c o rd . Moreover, to the extent the ALJ may nevertheless have been required to articulate a reason for affording the State agency opinion "significant" weight, it is apparent from the o p in io n that he viewed the State agency RFC assessment as largely consistent with the f in d in g s of Drs. Auerbach and Woodfin. (Tr. 24). If Plaintiff intends to assert that the ALJ was required to articulate specific reasons w h y the opinion of the State agency RFC assessment was purportedly afforded greater weight th a n that of a treating or examining physician, then that claim is similarly without merit. The re a so n s the ALJ was justified in discounting a portion of Dr. Auerbach's opinion will be a d d re ss e d infra in discussing Plaintiff's fifth claim of error. For present purposes, it is s u f f ic ie n t to demonstrate that the ALJ's decision to afford the State agency RFC assessment " sig n if ic a n t" weight is supported by substantial evidence. The State agency RFC assessment is mostly consistent with Dr. Auerbach's conclusion that Plaintiff may perform light work, a s well as Dr. Woodfin's objective findings in the musculoskeletal exam. To the extent d is c re p a n cie s were found, in determining Plaintiff's RFC the ALJ construed such

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d isc re p a n c ies against the State agency RFC findings. 1 0 Accordingly, the ALJ's decision to a f f o rd the State agency RFC assessment "significant" weight, subject to the modifications m a d e by the ALJ in determining Plaintiff's RFC, is supported by substantial evidence. E. T h e ALJ's treatment of the questionnaire completed by Dr. Auerbach.

P la in tif f contends the "ALJ erred at Page 7, Paragraph 5 of his decision (TR 23) when h e refused to give [controlling weight to] the answers of Dr. Auerbach to the medical q u e stio n n a ire when he concluded that the medical questionnaire was not consistent with his o w n treatment notes of the Plaintiff." (Doc. #12 at sixteenth unnumbered page). Plaintiff a rg u e s that Dr. Auerbach's responses to the questionnaire are consistent with his o b serv atio n s of Plaintiff over a period of years, and that the ALJ found Dr. Auerbach's a n sw e rs to the questionnaire incredible only because "the ALJ knew he could not allow the m e d ica l questionnaire responses of Dr. Auerbach to stand and enter the Unfavorable D e c is io n which he had already predetermined to do." Id. Defendant asserts that substantial e v id e n c e supports the ALJ's decision to deny controlling weight to Dr. Auerbach's medical so u rc e statement. " T h e opinion of a treating physician . . . `must be given substantial or considerable

For instance, the State agency RFC assessment found that Plaintiff could stand and/or walk about six hours in an eight-hour work day. (Tr. 220). However, given the entirety of the medical evidence in the record, the ALJ limited Plaintiff's standing and/or walking to just two hours in an eight-hour workday. (Tr. 20). The State agency RFC assessment also concluded that Plaintiff's capacity to push and/or pull, including with foot controls, was unlimited. (Tr. 221). However, the ALJ explicitly precluded Plaintiff from "pushing and pulling with lower extremities." (Tr. 20). 14

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w e ig h t unless `good cause' is shown to the contrary.'" Phillips v. Barnhart, 357 F.3d 1232, 1 2 4 0 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). " `[ G ]o o d cause' exists when the: (1) treating physician's opinion was not bolstered by the e v id e n c e; (2) evidence supported a contrary finding; or (3) treating physician's opinion was c o n c lu so ry or inconsistent with the doctor's own medical records. When electing to

d is re g a rd the opinion of a treating physician, the ALJ must clearly articulate its reasons." Id. a t 1241 (internal citations omitted). Dr. Auerbach had served as Plaintiff's treating physician for a number of years prior t o the hearing. Dr. Auerbach had previously determined that Plaintiff was capable of p e rf o rm in g light work and kept detailed notes on his interactions with and treatment of P la in tif f over the history of their relationship. On June 5, 2006, approximately three weeks b e f o re the hearing, Dr. Auerbach completed a two-part yes or no questionnaire submitted to h im by Plaintiff's attorney. The questionnaire required Dr. Auerbach to affirm whether, if P la in tif f testified at the hearing that he 1) "would have at least 4 or 5 days per month which w o u ld either prevent him from attending work for a full day or which would cause him to h a v e to leave work before a full day was completed even if allowed to sit and stand at his c o n v e n ie n c e," and 2) "that he has periods [in] which he finds it necessary to get off his feet a n d rest in the bed to ease his pain at least 2 days per week for extended periods of time in th e morning and afternoon," would such testimony "be consistent with the severity of the m e d ica l problems for which you are treating him?" (Tr. 250). Dr. Auerbach answered both

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q u e stio n s affirmatively. In response to questioning by his attorney at the hearing, Plaintiff g a v e testimony consistent with the hypothetical testimony embraced by the questionnaire. (T r. 277-78). Moreover, the vocational expert also testified that absenteeism similar to that d e sc rib e d in the questionnaire and in Plaintiff's testimony would "preclude competitive em p loym en t." (Tr. 279-80). In summarizing the medical evidence before him, the ALJ meticulously catalogued the treatment notes and other records from Dr. Auerbach. (Tr. 22-24). Based on the ALJ's re v ie w of these materials and all other "objective medical" evidence in the record, he c o n c lu d e d that "Dr. Auerbach's answers to the Medical Questionnaire are not consistent with h is own treatment notes of the clamant or with his previous opinions that the claimant was a b le to perform light duty work in accordance with established standards of the U.S. D e p a rtm e n t of Health and Human Services." (Tr. 23-24). Courts have affirmed that "good c a u se " to afford treating physician opinion less than controlling weight exists when the tre a tin g physician opinion is "conclusory or inconsistent with the doctor's own medical re c o rd s ." Phillips, 357 F.3d at 1241. Substantial evidence supports the ALJ's finding that D r. Auerbach's responses to the questionnaire are conclusory and inconsistent with his trea tm en t notes and previously rendered opinions. Namely, as alluded to above, Dr.

A u e rb a c h had previously cleared Plaintiff for light duty work and had reaffirmed that opinion in follow-up visits by Plaintiff. (Tr. 242, 239-40, 238, 236). Additionally, Dr. Auerbach's tre a tm e n t notes generally indicate that Plaintiff's pain could be treated with a measure of

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s u c c es s by prescribed medications. In any event, while Dr. Auerbach's treatment notes a lw a ys studiously recorded Plaintiff's complaints of pain, Dr. Auerbach never adjusted his o p inion that Plaintiff was capable of light work until given the questionnaire by Plaintiff's c o u n se l. Given the stark and abrupt change in opinion manifested by the questionnaire, as w e ll as its leading nature and lack of provision for analysis or elaboration, the ALJ was justified in placing greater reliance on the treatment notes and previous opinions of Dr. A u e rb a c h , which are reflective of the entire history of his relationship with Plaintiff and w h ic h permitted him greater latitude in conceptualizing Plaintiff's pain and its limiting e f f e c ts . Accordingly, substantial evidence supports the ALJ's decision to afford less than c o n tro llin g weight to Dr. Auerbach's responses to Plaintiff's counsel's questionnaire. V I. CONCLUSION T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 13th day of February, 2009.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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