Bush v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Karon O Bowdre on 5/21/2012. (FNC)
2012 May-21 AM 09:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of the Social
On September 11, 2007, the claimant, Nancy Bush, applied for supplemental security income
under Title XVI of the Social Security Act. (R. 103-110). The claimant alleges disability
commencing on August 15, 2005, because of asthma, bronchitis, and arthritis. (R.165). The
Commissioner denied the claim both initially and on reconsideration. (R. 63-65). The claimant filed
a timely request for a hearing before an Administrative Law Judge, and the ALJ held a hearing on
June 26, 2009. (R. 28-59). In a decision dated December 8, 2009, the ALJ found that the claimant
was not disabled as defined by the Social Security Act, and, thus, was ineligible for supplemental
security income. (R. 14-23). On May 20, 2011, the Appeals Council denied the claimant’s request
for review; consequently, the ALJ’s decision became the final decision of the Commissioner of the
Social Security Administration. (R. 1-3). The claimant has exhausted her administrative remedies,
and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1631(c)(3). For the reasons stated
below, this court affirms the decision of the Commissioner.
II. ISSUES PRESENTED
The claimant presents two issues: (1) whether the ALJ erred by concluding that the
claimant does not suffer from a severe impairment or combination of severe impairments by
failing to consider the claimant’s medically determinable impairments in isolation or in
combination as required under step two of the sequential process; and (2) whether the ALJ
committed reversible error by according more weight to the opinion of Dr. Marcus Whitman, a
non-examining physician, while rejecting the opinions of Dr. Jack Zaremba and Dr. Adam Ross
Nortick, consulting physicians.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must affirm
the Commissioner’s decision if the Commissioner applied the correct legal standards and if the
factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham v. Apfel,
129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No. . . presumption of validity attaches to the [Commissioner’s] legal conclusions, including
determination of the proper standards to be applied in evaluating claims.” Walker, 826 F.2d at 999.
This court does not review the Commissioner’s factual determinations de novo. The court will affirm
those factual determinations that are supported by substantial evidence. “Substantial evidence” is
“more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner’s] factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look only
to those parts of the record that support the decision of the ALJ, but also must view the record in its
entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman
v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person
cannot “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.” 42 U.S.C. § 423(d)(1)(A). To
make this determination, 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?
An affirmative answer to any of the above questions leads either to the next question,
or, on steps three and five, to a finding of disability. A negative answer to any
question, other than step three, leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20 C.F.R. §§ 404.1520, 416.920.
To establish disability, the claimant has the burden of proving the first three steps: namely
that (1) she is not engaged in substantial gainful activity, (2) she has a severe impairment or
combination of impairments, and (3) her impairment or impairments meet or exceed the criteria in
the Listings found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant cannot prove that she has
a listed impairment, she must prove alternatively that she is unable to perform her previous work.
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); see also Lucas v. Sullivan, 918 F.2d 1567,
1571 (11th Cir. 1990). Once the claimant shows that she cannot perform her previous work, the
burden shifts to the Commissioner “to show the existence of other jobs in the national economy
which, given the claimant’s impairments, the claimant can perform.” Jones v. Apfel, 190 F.3d at
In evaluating pain and other subjective complaints, the Commissioner must consider whether
the claimant demonstrated an underlying medical condition, and either “(1) objective medical
evidence that confirms the severity of the alleged pain arising from that condition or (2) that the
objectively determined medical condition is of such a severity that it can reasonably be expected to
give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (emphasis
added); see also Wilson v. Barnhart, 284 F.3d 1219, 1225-26 (11th Cir. 2002); 20 C.F.R. §
As a general rule, the opinion of an examining physician is usually entitled to more weight
than the opinion of a non-examining physician. Broughton v. Heckler, 776 F.2d 960, 961-62 (11th
Cir.1985). However, in evaluating physicians’ opinions, “the [ALJ] may reject any medical
opinion,” including that of a treating and consulting physician, “if the evidence supports a contrary
finding.” Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985). If the evidence supports such a
contrary finding, the ALJ must articulate specific reasons for rejecting the treating or consulting
physician’s opinion. See Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
The claimant received education through the seventh grade and was forty-three years old at
the time of the administrative hearing. (R. 32-33). Her previous work experience includes
employment as a clerk in thrift stores, a cashier, and a cook in various fast food restaurants. (R. 137143). The claimant originally alleged she was unable to work because of arthritis, bronchitis,
asthma, and left leg pain. (R. 165). During the administrative hearing, however, the claimant
testified that she suffered from scoliosis, shoulder arthritis, migraine headaches, and leg and back
pain. (R. 17-18, 35-40, 47). According to the claimant, her pain and related problems began to
interfere with her work in August of 2006. (R.165).
On July 21, 2003, the claimant presented to Birmingham Health care for the Homeless
(BHCH) because of right knee pain. The examination revealed right knee crepitus; however, the
claimant had normal range of motion and no swelling. Mr. David Slabaugh, treating family nurse
practitioner, diagnosed the claimant with osteoarthritis. The claimant received instructions to use
ibuprofen along with an ACE wrap for her right knee. The claimant returned to the BHCH on
August 7, 2003, with complaints of right knee pain and lower leg pain. During the examination, the
claimant had a normal gait, and the Drawer and McMurray tests were negative.1 Dr. Julie A. Boll,
treating family physician, prescribed Naprosyn 250mg for the claimant’s pain. (R. 235-39).
On November 17, 2003, the claimant presented again to the BHCH; however, this time the
claimant complained of left knee pain. The left knee exam showed no evidence of edema, effusion,
or crepitus. The claimant’s Drawer and McMurray signs of the left knee were also negative. Dr.
Boll indicated that the claimant should begin a low fat diet to decrease her obesity. (R. 227-28).
The claimant complained of bi-temporal headaches on June 29, 2004 at the BHCH. The
claimant indicated that the headaches occur three times a day and that ibuprofen relieves the pain.
The examiner at the BHCH suspected that the claimant experienced tension headaches. The
A negative result for the McMurray test indicates no signs of a meniscus tear in the
right knee, and a negative result for the Drawer test indicates no signs of a rupture of the cruciate
ligaments in the right knee.
claimant returned to the BHCH on November 15, 2005, with complaints of headaches, weakness,
and left leg and knee pain. The claimant reported that ten to twelve aspirins did not alleviate her
headaches. The diagnostic impression included migraine headaches. The examiner at BHCH
prescribed Tylenol Sinus for the claimant’s nasal congestion, along with Flonase and Elavil. (R.
On August 12, 2007, the claimant presented to the emergency room at UAB Hospital after
a fall. The claimant reported lightheadedness before the fall; however, she could not identify any
additional reasons for falling. Dr. David C. Pigott, emergency room physician, noted that the
claimant had a productive cough and coarse breath sounds on the right anterior chest. Dr. Pigott
ordered x-rays for the claimant’s chest; however, the x-rays showed normal results. During the
physical examination, the claimant had an oxygen saturation rate of 98%. Dr. Pigott ordered IV
fluids and Tylenol for the claimant’s dehydration. (R. 211-13).
The claimant returned to the BHCH on October 25, 2007, with complaints of asthma,
bronchitis, chest pain, spasmodic coughing, shortness of breath, fever, and chills. The medical notes
indicate that the claimant smelled strongly of cigarette smoke. The examination revealed signs of
bilateral crackles, wheezes, and rhonchi, and the claimant’s diagnosis consisted of COPD. The
claimant received prescriptions for a ProAir inhaler and antibiotics. (R. 275).
Dr. Jack L. Zaremba, consulting internist, examined the claimant on November 20, 2007.
At the time of the examination, the claimant complained of left and right knee pain. On a scale of
one to ten, the claimant stated that her left leg pain reached a level ten. According to the claimant,
this severe pain interfered with her ability to walk and stand. The claimant indicated that she can
stand for only fifteen to twenty minutes because of the knee pain. Furthermore, the claimant alleged
that her back pain prevents her from sitting for longer than thirty minutes. The claimant also
confirmed that she continues to smoke a half pack of cigarettes each day. (R. 270-71).
During the physical examination, Dr. Zaremba noted that the claimant experienced shortness
of breath, left and right knee pain, back pain, and left shoulder pain. More specifically, the claimant
could not perform the “heel and toe walk,” and Dr. Zaremba observed the claimant walking with a
limp. (R. 271). Despite the claimant’s shortness of breath, Dr. Zaremba’s examination revealed that
the claimant’s lungs and respiratory systems were clear. Dr. Zaremba further noted that claimant had
normal range of motion during the exam. (R. 268-69). Dr. Zaremba diagnosed the claimant with
severe left knee pain consistent with degenerative disease or internal derangement of the left knee,
arthralgia of the right knee, mechanical low back pain with sciatic radiation in the lower left
extremity, and left shoulder bursitis. (R. 271).
On November 26, 2007, Dr. Marcus Whitman, non-examining orthopedic surgeon, reviewed
the claimant’s medical records to provide a disability determination. Dr. Whitman’s notes state that
the claimant experiences “occasional episodes of bronchitis, but there is no MDI for COPD.”
According to Dr. Whitman, the claimant experienced significant left knee pain that caused the
claimant to limp. Dr. Whitman requested x-rays of the claimant’s left knee and lumbar spine. (R.
The claimant had x-rays of her left knee and lumbar spine performed on January 1, 2008.
The x-ray of the claimant’s knee showed no evidence of soft tissue calcification or significant
swelling. The claimant’s bone and joint structures in her left knee were reported as normal. The
lumbar spine x-ray also revealed a normal SI joint, and no evidence of a structural defect. (R. 273).
On January 25, 2009, the claimant presented to the emergency room at St. Vincent’s Hospital
with complaints of left and right knee pain. (R. 196). The claimant attributed the bilateral knee pain
from standing and walking for the past two weeks at her job. (R.198). Dr. George L. Joe,
emergency room physician, examined the claimant’s knees. The examination revealed some bony
tenderness to the knees; however, the examination showed stable ligaments, normal gait, and an
intact motor. (R. 198-99). The claimant’s diagnosis consisted of arthralgia pain of both knees, and
the claimant received an injection of Toradol along with prescriptions for Lortab and Motrin. (R.
Following the ALJ hearing, Dr. Adam Nortick, consulting emergency medicine physician,
examined the claimant on July 20, 2009 at the request of the ALJ. At the time of the examination,
the claimant alleged bilateral knee pain and low back pain commencing in 2005. The claimant
further described her back and knee pain as “extremely troublesome,” but the claimant indicated that
she “gets around the community independently.” In assessing activities of daily living, the claimant
reported that she could sit in a “comfy” chair for thirty minutes, go shopping in the mall, ride in a
car for two hours, and carry a bag of groceries. (R. 284-86). Dr. Nortick’s examination revealed that
the claimant could squat three times and stand on her toes or heels. (R. 289). The claimant’s motor
strength measured a level five on a scale of one through five. (R. 291). However, Dr. Nortick noted
that the claimant only had ten degrees of flexion for her lumbar range of motion. Furthermore, the
claimant’s knee range of motion included left knee flexion of 140 degrees and right knee flexion of
132 degrees. (R. 292). Dr. Nortick’s diagnosis included asthma, headache disorder, and nonspecific knee and back pain. (R. 295).
Dr. Nortick also completed a Medical Source Opinion (MSO) at the request of the ALJ. Dr.
Nortick’s MSO of the claimant states that the claimant can sit for six hours under an eight hour work
day, and that the claimant can stand and walk for twenty minutes. Furthermore, the claimant can
occasionally lift up to ten pounds, climb stairs, balance, stoop, kneel, crouch, and crawl. Under the
activity section of the MSO, Dr. Nortick affirmed that the claimant can shop, walk without
assistance, use public transportation, prepare meals, and sort files. However, despite these findings,
Dr. Nortick determined the claimant to be disabled. (R. 278-283).
The Administrative Hearing
After the Commissioner denied the claimant’s application for supplemental security income,
the claimant requested a hearing before an ALJ. (R. 76-77). At the hearing, the claimant testified
that her pain, on a scale of one to ten, reaches a nine when the claimant takes Tylenol. (R. 39-40).
According to the claimant, her left knee pain caused her to leave work because the she cannot stand
on her feet for more than five to ten minutes. (R. 35, 39). The claimant further indicated that the
curvature in her spine causes back pain, which prevents the claimant from sitting longer than three
to five minutes. (R. 35). The claimant testified that her back pain in conjunction with left leg
swelling, requires her to lie down for a couple of hours each day. Referring to her previous job as
a cashier at Crystal, the claimant stated: “They had me standing on my feet all the time. When I tried
to sit down the pain was so bad. I couldn’t take it no more.” (R. 36). The claimant also verified that
she has not tried to work since her last job at Crystals in January of 2009. (R. 52-53).
The claimant further testified that she experiences problems with her left shoulder and both
hands. As a result, the claimant described how she can lift a glass of ice tea without difficultly.
Although, the claimant can lift a gallon of ice tea out of the refrigerator, she must immediately set
it down because of the pain. The claimant attributed her back pain from the curvature of her spine.
The claimant confirmed that she is homeless and living in an abandoned house even though
the claimant has ten children. (R. 40). According to her testimony, the claimant woke up most days
around 5:00 A.M at the abandoned house. The claimant then walks to a library, where she spends
the majority of her day reading children’s books. The walk to the library requires the claimant to rest
and sit after each half block because of her back and left knee pain. At noon, the claimant eats lunch
at a soup kitchen provided by Grace Episcopal Church before returning to the library for the
remainder of the day. In the evening, the claimant stated that she returns to the abandoned house to
sit and sleep on a few blankets on the floor. (R. 46-49). On the weekends, the claimant described
how she will sometimes walk to her sister-in-law’s house to get food or attend church. The walk to
the sister-in-law’s house usually takes approximately twelve hours to walk eight to ten miles. (R.
The claimant further confirmed that she continues to smoke a half pack of cigarettes when
she can afford them or when the clamant’s daughter brings her a pack of cigarettes. The claimant
verified that she spends $15.00 to $20.00 a week on cigarettes. The claimant testified that her
bronchitis and breathing problems continue to worsen because of the heat and that she “can hardly
breathe sometimes.” In addition to the physical pain, the claimant stated that she suffers from
migraine headaches. However, when asked what is the main reason why the claimant cannot go to
work, the claimant responded that the main reason is from her left leg pain and back pain. (R. 5053).
Daniel Canard, a vocational expert, offered testimony on (1) the claimant’s ability to return
to previous work, and (2) the type and availability of jobs the claimant could feasibly perform. The
ALJ posed a hypothetical individual of the claimant’s age, education, work experience, and
background who is limited to simple, non-complex jobs that provide an eight-hour work day with
customary breaks. The ALJ also included the claimant’s breathing problems in the hypothetical that
would require an individual to work in an environment free of dust, fumes, gases, and humidity.
According to Mr. Canard, these limitations would not preclude the claimant from returning to prior
work as a thrift store clerk. However, Mr. Canard stated that the humidity limitation would prevent
the claimant from returning to her prior work at the fast food restaurants because of the hot
temperature in the kitchens. Mr. Canard then noted that the claimant would need to be able to stand,
walk, or sit for approximately six hours to perform work at the thrift store. (R. 55-56).
Mr. Canard further testified that the hypothetical individual could perform the functions of
any number of light, unskilled jobs, including those of a packager of small parts, a maker of
semiconductor wafers, and a document preparer in the industry preparing documents for
microfilming or scanning information into a computer. According to Mr. Canard, work at each of
these jobs is available in both the regional and national economies. (R. 57).
The ALJ then modified the hypothetical, to include the claimant’s pain that requires her to
lie down for a couple of hours throughout an eight-hour work day. Mr. Canard indicated that the
modified hypothetical would preclude the claimant from working at all jobs originally identified in
the regional and national economies based on the claimant’s age, education, and work experience.
Mr. Charles Tyler Clark, the claimant’s attorney, asked Mr. Canard additional questions
based on Dr. Zaremba’s report that concluded that the claimant has severe left knee pain that
interferes with the majority of the claimant’s ambulatory activity. Dr. Zaremba’s report further
indicated that the claimant’s pain limits her from bending, lifting, and prolonged sitting. Based on
Dr. Zaremba’s diagnosis, Mr. Clark then asked Mr. Canard whether an individual who regularly
experiences severe pain at a seven or eight level on a scale of one through ten would preclude the
individual from working at most jobs. According to Mr. Canard, persistent pain at that level would
preclude any of the claimant’s past work, as well as any other gainful employment. (R. 58-59).
The Administrative Decision
On December 8, 2009, the ALJ issued a decision finding the claimant not disabled under
Sections 216(I) and 223(d) of the Social Security Act. (R. 14-23). The ALJ’s findings of fact and
conclusions of law followed the five-step legal standard outlined in 20 C.F.R. §§ 404.1520, 416.920.
First, the ALJ found that the claimant had not engaged in any substantial gainful activity
since the alleged onset of her disability. Next, the ALJ found that the claimant’s recurrent bronchitis
and sinus/tension headaches qualify as medically determinable impairments. The ALJ then
determined that these impairments do not singly or in combination manifest the specific signs and
diagnostic findings required for a severe impairment to limit the claimant’s ability to perform basic
work related activities for twelve consecutive months. (R. 16).
In support of this conclusion, the ALJ authored an exhaustive time line of the claimant’s
relevant medical history, carefully noting that each objective medical test performed failed to
confirm the claimant’s alleged symptoms. (R. 21). The ALJ considered the claimant’s subjective
complaints including bilateral knee pain, back pain, chronic bronchitis, asthma, headaches, and
COPD. (R. 16, 18, 21). The ALJ set out a two-step process to determine (1) whether the claimant’s
medically determinable physical impairments can be supported by medically acceptable clinical and
laboratory diagnostic findings; and (2) whether an underlying physical impairment could reasonably
be expected to produce the claimant’s alleged symptoms based on the intensity, persistence, and
limiting effects on the claimant’s ability to perform basic work activities. (R. 17). The ALJ
referenced how the objective medical evidence of record does not support or confirm the claimant’s
alleged symptoms. For example, the claimant alleged severe back pain and left knee pain; however,
the examinations failed to show any evidence of atrophy, effusion, or edema. (R. 21).
The ALJ also referenced how the claimant’s subjective limitations are self-contradictory and
often conflict with the evidentiary findings. (R. 22). For instance, the claimant alleged that she can
only sit for fifteen to twenty minutes; however, the claimant testified during the ALJ hearing that she
spends up to five hours sitting in a public library. (R. 22, 47). The ALJ further noted inconsistencies
when the claimant told Dr. Zaremba that she had fallen many times as a result of weakness in her
legs; however, the claimant denied any falls or weakness in her legs to Dr. Nortick. Similarly, the
ALJ acknowledged that the claimant’s purported sedentary lifestyle conflicted with the claimant’s
muscle strength determined by Dr. Nortick along with the claimant’s statement that she “gets around
the community independently.” (R. 22).
The ALJ then addressed the opinion evidence of record. The ALJ rejected Dr. Nortick’s
physical medical source statement (MSS) because the statement contradicted with Dr. Nortick’s
findings during the claimant’s examination. More specifically, the ALJ noted how the MSS
indicated that the claimant can only stand and walk for a total of twenty minutes throughout an entire
eight-hour work day. The MSS directly conflicted with the claimant’s statements during the
examination that she can mow a lawn, go shopping, walk three aisles at Wal-Mart, and stand in a
line for thirty minutes. (R. 22). Furthermore, the ALJ thought that Dr. Nortick’s MSS relied solely
on the claimant’s subjective complaints. The ALJ further rejected Dr. Nortick’s narrative report
because the diagnosis consisted of non-specific back and knee pain without any objective medical
evidence to support a finding of a medically determinable impairment.
The ALJ also rejected Dr. Zaremba’s opinion. Dr. Zaremba’s diagnosis of the claimant
consisted of degenerative disease or internal derangement of the left knee that interferes with the
claimant’s ambulatory activities. However, the ALJ then noted that the claimant’s x-rays, all
producing normal results, disproved Dr. Zaremba’s diagnosis. The claimant’s back x-ray failed to
show any medically determinable impairment that would cause the claimant to suffer from sciatica,
as alleged by Dr. Zaremba. Likewise, the x-ray results for the claimant’s left knee portrayed no
evidence of degenerative changes or instability of the knee. (R. 22). As a result, the ALJ rejected
the opinions of both Dr. Zaremba and Dr. Nortick on the basis that the opinions are either disproved
or inadequately based on the claimant’s subjective statements with no objective medical evidence.
The ALJ’s decision relied heavily on the opinion of Dr. Whitman, the State agency medical
consultant, who determined that the medical evidence failed to support a finding that the claimant
suffers from COPD. The ALJ afforded Dr. Whitman’s opinion significant weight because Dr.
Whitman’s opinion is consistent with the medical evidence of record. (R. 22).
The ALJ ultimately concluded that the claimant does not have an impairment or combination
of impairments that significantly limits her ability to perform basic work activities. (R. 23). Under
SSR-85-28, the ALJ listed some examples of basic work activities, which include physical functions
such as walking, standing, sitting, lifting, or handling along with the ability to use judgment and deal
with changes in the workplace. The ALJ recognized the claimant’s medically determinable
impairments of recurrent bronchitis and sinusitis/tension headaches; however, these impairments do
not amount to a severe impairment or combination of impairments as required at step two of the
sequential evaluation process. As a result, the ALJ determined that the claimant is not disabled;
therefore, the claimant is capable of performing basic work-related activities. (R. 16-17).
I. Whether the ALJ erred by concluding that the claimant does not suffer from a severe
impairment or combination of severe impairments by failing to consider the claimant’s
medically determinable impairments in isolation or in combination as required under step two
of the sequential process.
The claimant contends that the ALJ failed to consider the claimant’s medically determinable
impairments in combination or in isolation as required under step two of the sequential process. The
court finds that the ALJ appropriately considered the claimant’s medically determinable impairments
in isolation and in combination to determine that the claimant does not suffer from a severe
impairment or combination of severe impairments. As such, the ALJ properly concluded that the
claimant is not disabled.
Under step two of the sequential process, the ALJ must determine whether a claimant has a
“severe” impairment or combination of impairments that causes more than a minimal limitation on
a claimant’s ability to function. Davis v. Shalala, 985 F.2d 528, 532 (11th Cir. 1993). When a
claimant has alleged several impairments, the ALJ has a duty to consider the impairments in
combination and to determine whether the combined impairments render the claimant disabled.
Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991). The claimant bears
the burden at the second step of the sequential evaluation of proving that she has a severe impairment
or combination of impairments. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The Eleventh
Circuit has determined that “an impairment or combination of impairments is not severe if it does
not significantly limit [the claimant’s] physical or mental ability to do basic work activities.”
Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).
The ALJ concluded that the claimant’s medically determinable impairments consist of
recurrent bronchitis and sinus/tension headaches. The ALJ set out a two-step process to determine
(1) whether the claimant’s medically determinable physical impairments can be supported by
medically acceptable clinical and laboratory diagnostic findings, and (2) whether an underlying
physical impairment could reasonably be expected to produce the claimant’s alleged symptoms based
on the intensity, persistence, and limiting effects on the claimant’s ability to perform basic work
activities. The ALJ considered the claimant’s alleged symptoms and medical problems including
headaches, bilateral knee pain, back pain, bronchitis, scoliosis, shoulder arthritis, and COPD in
combination and in isolation.
The ALJ then listed and considered certain basic work activities necessary to do most jobs
provided under Social Security Ruling 85-28. As a result, the ALJ concluded that the claimant does
not have an impairment or combination of impairments that significantly limits her ability to perform
basic work activities, such as walking, standing, sitting, speaking, and understanding simple
instructions. The sequential process ended at step two because the claimant could not prove that she
suffers from a severe impairment that significantly limits her ability to perform basic work activities.
Therefore, the ALJ correctly determined that the claimant is not disabled.
II. Whether the ALJ committed reversible error by according more weight to the opinion of
Dr. Marcus Whitman, a non-examining physician, while rejecting the opinions of Dr. Jack
Zaremba and Dr. Adam Ross Nortick, consulting physicians.
The claimant also argues that the ALJ committed reversible error by rejecting the consulting
opinions of Dr. Nortick and Dr. Zaremba, while according more weight to the opinion of Dr.
Whitman, the non-examining physician. In evaluating the opinion evidence provided by physicians,
the ALJ considers various factors, including the physician’s relationship to the claimant, the
physician’s speciality, whether the physician’s opinion is supported by evidence, and whether the
physician’s opinion is consistent with the record. 20 C.F.R. §§ 404.1527(d), 416.927(d). As a
general rule, the opinion of an examining physician is usually entitled to more weight than the
opinion of a non-examining physician. Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir.
1985). However, an ALJ can rely extensively on a non-examining physician’s opinion where
substantial evidence supports the ALJ’s rejection of the treating and consulting physicians’ medical
opinions. Flowers v. Comm’r of Soc. Sec., 441 Fed. Appx. 735, 742 (11th Cir. 2011).
The Eleventh Circuit has determined that the Commissioner may reject any medical opinion
if the evidence supports a contrary finding. Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.1985).
In Crawford v. Commissioner, the Eleventh Circuit plainly articulated that “the testimony of a
treating physician must be given substantial or considerable weight unless ‘good cause’ is shown to
the contrary.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting
Lewis, 125 F.3d at 1440) (emphasis added). Courts have identified “good cause” to diminish the
opinions of treating physicians when such opinions were “not bolstered by the evidence, or where
the evidence supported a contrary finding.” Lewis, 125 F.3d at 1440 (citing Schnorr v. Bowen, 816
F.2d 578, 582 (11th Cir. 1987)). Likewise, courts have found “good cause” when the treating
physicians’ opinions were “conclusory or inconsistent with their own medical records.” Id. (citing
Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991)).
Although the ALJ discredited the opinions of Dr. Nortick and Dr. Zaremba, the ALJ’s
opinion specifically stated he rejected those opinions based on substantial evidence and good cause.
In Flowers v. Commissioner of Social Security, the court addressed a similar issue of whether the
ALJ properly rejected the opinions of examining and treating physicians and instead relied on the
opinion of a non-examining physician. Flowers, 441 Fed. Appx. at 740. The court in Flowers
affirmed the ALJ’s decision to discredit the treating and consulting physicians’ opinions because the
ALJ provided good cause for rejecting the opinions. Id. at 741. As a result, the ALJ relied heavily
on the non-examining physician’s opinion because the opinion “was consistent with the treating and
consulting physicians’ underlying clinical findings.” Id. at 742. Therefore, the court in Flowers
concluded that an ALJ can rely extensively on the non-examining physician’s opinion when
substantial evidence supports the ALJ’s decision to reject the treating and consulting physicians’
opinions, even though the ALJ is usually required to accord more weight to the treating and
consulting physicians. Id. See Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991)
(concluding that the ALJ properly relied on the consulting, non-examining doctor’s opinion because
it was not inconsistent with the results of the tests administered by the examining doctor).
In the present case, the ALJ properly rejected the opinion of Dr. Zaremba because the
claimant’s x-rays disproved Dr. Zaremba’s diagnosis that the claimant suffered from degenerative
disease or internal derangement of the left knee. Likewise, the ALJ properly rejected the MSO of
Dr. Nortick because his responses conflicted with his evaluation results that the claimant can shop,
prepare meals, and walk without assistance. Likewise, Dr. Nortick’s narrative report provided no
objective medical evidence to support any medically determinable impairment related to the
claimant’s back or knee pain. The ALJ’s opinion exhaustively recites the body of evidence contrary
to the opinions and diagnosis established by Dr. Zaremba and Dr. Nortick. As a result, the ALJ
relied heavily on the opinion of Dr. Whitman, the non-examining physician. Dr. Whitman concluded
that the claimant’s bronchitis episodes did not support a finding that the claimant suffers from
COPD. As a result, the ALJ relied on Dr. Whitman’s opinion in addition to the claimant’s normal
x-ray results of her back and left knee.
Based on the substantial evidence discussed above, this court finds that the ALJ relied on
good cause in diminishing the weight afforded to the opinions of Dr. Zaremba and Dr. Nortick.
Substantial evidence also supports the ALJ’s application of the claimant’s medically determinable
impairments at step two of the sequential process. As a result, this court finds that the evidence
adequately supports the ALJ’s conclusion that the claimant is not disabled. This court, like the ALJ,
acknowledges that the claimant suffered various medical conditions; however, the weight of the
evidence does not support a finding of any identifiable, sustained limitation that prevents all work
For the reasons stated, this court concludes that substantial evidence and good cause supports
the decision of the Commissioner and it is due to be AFFIRMED. The court will enter a separate
order in accordance with this Memorandum Opinion.
DONE and ORDERED this 21st day of May, 2012.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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