Nelson v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/19/12. (ASL)
2012 Oct-19 PM 02:33
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MARY ANN NELSON,
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
Civil Action Number
Plaintiff Mary Ann Nelson (“Nelson”) brings this action pursuant to section
205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review
of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). Doc. 1. This court finds that the Administrative Law
Judge’s (“ALJ”) decision - which has become the decision of the Commissioner is supported by substantial evidence. Therefore, for the reasons elaborated herein,
the Court will AFFIRM the decision denying benefits.
I. Procedural History
Nelson filed her application for Title II disability insurance benefits on July
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12, 2007, alleging a disability onset date of June 29, 2007, due to diabetes, asthma,
coronary artery disease, osteoarthritis, hypertension, renal insufficiency, otitis
media and rhinitis, morbid obesity, narcolepsy, anemia, bursitis, carpal tunnel
syndrome in both wrists, acid reflux, kerotoconus in both eyes, and stress disorder.
(R. 148, 160). After the SSA denied her application on September 25, 2007,
Nelson requested a hearing on November 19, 2007. (R. 107-111, 114). At the time
of the hearing on September 21, 2009, Nelson was 53 years old with bachelor’s
and master’s degrees, and her past relevant work included working as a scheduler
and high school English teacher. (R. 31, 161, 168, 931). Nelson has not engaged
in substantial gainful activity since July 12, 2007, the date of her application. (R.
The ALJ denied Nelson’s claims on March 23, 2010, which became the
final decision of the Commissioner when the Appeals Council refused to grant
review on June 30, 2011, (R. 13-16, 27-51). Nelson then filed this action on
January 3, 2012, pursuant to 42 U.S.C. § 405(g). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
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correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
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III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). Specifically, the Commissioner
must determine in sequence:
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
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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.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, she must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
This standard is referred to as the Hand standard, named after Hand v. Heckler, 761
F.2d 1545, 1548 (11th Cir. 1985).
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identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find a disability unless the ALJ properly discredits the claimant’s
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate
reasons for refusing to credit a claimant’s subjective pain testimony,
then the [ALJ], as a matter of law, has accepted that testimony as true.
Implicit in this rule is the requirement that such articulation of
reasons by the [ALJ] be supported by substantial evidence.
Hale, 831 F.2d at 1012. As such, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
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IV. The ALJ’s Decision
In performing the five step analysis, the ALJ initially determined that
Nelson had disability insurance on her alleged onset of disability date but had not
engaged in substantial gainful activity since the date of her application, and
therefore met Step One. (R. 46). Next, the ALJ found that Nelson met Step Two
because she suffered from the severe impairments of “osteoarthritis, coronary
artery disease, hypertension, asthma, diabetes, sleep apnea, and obesity.” Id. The
ALJ then proceeded to the next step and found that Nelson failed to satisfy Step
Three because her “impairments, when considered individually or in combination,
neither meet nor equal any impairment listed[.]” (R. 46). Although the ALJ
answered Step Three in the negative, consistent with the law, see McDaniel, 800
F.2d at 1030, the ALJ proceeded to Step Four, where he determined that Nelson:
retains the residual functional capacity to perform light work in a
temperature controlled environment which allows for a sit or stand
option, use of a cane for ambulation and balancing, no more than
occasional bending, stooping, or overhead reaching, no operation of
foot or leg controls, no climbing, no unrestricted heights, and no
(R. 46). Moreover, in light of the residual functional capacity (“RFC”), the ALJ
determined that Nelson is “capable of performing her past relevant work as a
teacher.” (R. 47). Consequently, the ALJ found that Nelson “was not under a
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‘disability,’ as defined in the Social Security Act, at any time through the date of
this decision.” (R. 47). See also McDaniel, 800 F.2d at 1030.
The court turns now to Nelson’s contentions that the ALJ (1) failed to give
the appropriate weight to the treating and consultative physicians’ opinions and
failed to apply the “treating physician rule” to treating physician, Calvin R.
Shaffer, M.D.’s medical opinion, and (2) failed to give the vocational expert an
appropriate hypothetical to include all of Nelson’s impairments. See doc. 7, at 214. The court addresses each contention in turn.
Alleged failure to apply the “treating physician rule” and to give
appropriate weight to the consultative examiner’s opinion
Nelson has a host of medical problems and, at the time of her application,
was taking over 30 medications. (R. 166-168, 541-2, 564-68). In fact, Nelson’s
record has over 800 pages of medical evidence. See generally (R. 1-957).
However, to prove her claim, Nelson must do more than just outline her ailments;
rather, the analysis hinges on whether these ailments rise to a disability.
i. Dr. Shaffer’s treatment notes and opinion evidence
As her first contention, Nelson asserts that the ALJ erred by failing to give
treating physician Dr. Shaffer’s opinion controlling weight. See doc. 7 at 5-11.
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The specific opinion that Nelson refers to is a “Physical Capacities Evaluation,” a
one-page questionnaire Dr. Shaffer filled out on January 15, 2009, opining that
Nelson could (1) sit, stand, or walk for zero minutes at any one time and that
Nelson could sit, stand, and walk for one hour each during an entire 8-hour work
day; (2) occasionally lift and carry up to 5 lbs, but never lift or carry over 6 lbs; (3)
use her hands for simple grasping but not for pushing and pulling of arm controls
or fine manipulation and could use her feet for repetitive movements such as
pushing and pulling of leg controls; and (4) not bend, squat, crawl, climb, or reach
and had mild restrictions driving automobile equipment, but no restrictions related
to unprotected heights, being around moving machinery, exposure to marked
changes in temperature or humidity or exposure to dust, fumes and gases. (R.
858). Nelson contends that this one page questionnaire establishes that she is
disabled, and, as such, challenges the ALJ’s decision to give little weight to the
opinion. The court finds that the substantial evidence supports the ALJ’s decision.
The ALJ gave little weight to Dr. Shaffer’s opinion because the ALJ
determined that “[Nelson’s] impairments could create some limitations, but not to
the degree alleged by Dr. Shaffer, which was unsupported by the great weight of
the medical evidence of record and inconsistent with his own treatment records.”
(R. 45). Specifically, the ALJ found that “[Nelson] has not generally received the
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type of medical treatment one would expect for a totally disabled individual,” and
that while in 2006, Dr. Theodis Buggs, an orthopedic specialist, “advised [Nelson]
to increase her physical activity and referred her to physical therapy. . . there was
no record of physical therapy in the medical evidence of record, other than
[Nelson’s] report to Dr. Thomas that she underwent some rehabilitation which
helped her chronic knee pain.” (R. 44). Moreover, the ALJ found significant that
while Nelson complained of hip and knee pain to Dr. Shaffer, “no change was
made to her medications other than the addition of anti-inflammatory medications”
and “[n]o evidence of any recent treatment for knee, hip or back pain is present in
the medical evidence of record [and] [w]hile [Nelson] testified her anginia,
osteoarthritis, fibromyalgia, and heart ailments have worsened since she retired, no
corresponding increase in treatment for said alleged ailments is present in the
medical evidence of record.” (R. 44).
Except for arguing that the ALJ should have given Dr. Shaffer’s opinion
controlling weight, Nelson never demonstrated how the rest of the medical
evidence, including Dr. Shaffer’s substantial treatment notes, supports Dr.
Shaffer’s opinion. Rather, Nelson makes a blanket assertion that the “treating
physician rule” should apply to the facts of this case. Doc. 7 at 13. This court
disagrees. “It is well-established that ‘the testimony of a treating physician must
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be given substantial or considerable weight unless “good cause” is shown to the
contrary.’” Crawford v. Comm’r of Social Security, 363 F.3d 1155, 1159 (11th
Cir. 2004) (emphasis added) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997)). See also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). “Good
cause” exists when the “(1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) [the] treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
Additionally, the “ALJ must clearly articulate the reasons for giving less weight to
the opinion of a treating physician, and the failure to do so is reversible error.”
Lewis, 125 F.3d at 1440.
“Good cause” existed here because Dr. Shaffer’s opinions were not
supported by the evidence and were inconsistent with his own treatment records.
For example, although Nelson furnished treatment notes from her regular visits to
Dr. Shaffer from 2000 to 2008, see e.g. (R. 282, 895), the entries from June 2006
(the period that is a year before Nelson’s alleged disability onset date) show only
that Nelson had knee pain, (R. 510), and in Feb. and April 2007 (just a few months
before her alleged onset date), that Nelson had “no bone, joint, or muscle pain”
and a “normal station and gait.” (R. 508, 309). Critically, starting in
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approximately May 2007, every entry stated “Musculoskeletal: chronic
osteoarthritis involving knees, hips, and back,” regardless of whether Nelson’s
chief complaint was related to her osteoarthritis. (R. 304, 833, 835-839).
Moreover, Dr. Shaffer ordered no new treatment for Nelson’s chronic
osteoarthritis, except to send Nelson to Dr. Buggs for steroid injections. See (R.
923, 930). In short, Dr. Shaffer’s own treatment notes do not support the findings
he made in the questionnaire. Accordingly, the ALJ committed no error when he
decided to not give the questionnaire controlling weight.
The rest of the medical evidence also supports the ALJ’s decision. For
example, as it relates to Nelson’s cardiac ailments, the record does not support her
contention of a disability. In fact, during an admission for chest pain in April
2007, the tests showed normal results, except for a “small anterior apical area of
mild stress-induced ischemia,” and there was “no evidence of myocardial
infarction.” (R. 523, 527, 536). The physicians “felt the patient did not need any
procedures and the coronary artery disease would be medically treated,” and
released Nelson “in stable condition” with “normal left ventricular systolic
function.” (R. 523, 536).
The only additional treatment notes related to Nelson’s pain or impairments
during the relevant period are by Dr. Buggs, whom Nelson visited in January of
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2005 for knee and right hip pain that had persisted over several months with
increasing intensity. (R. 930). Dr. Buggs determined that Nelson’s “range of
motion of both knees decreased secondary to discomfort” and her “hip exam
reveals range of motion decreased secondary to discomfort” which Dr. Buggs
attributed to degenerative joint disease in Nelson’s knees, right hip, and hands. Id.
Thereafter, Nelson visited Dr. Buggs for her hip and knee pain several times in
2006 and 2009, and Dr. Buggs again attributed the pain to degenerative joint
disease and injected Nelson’s knee with a steroid, Depo-Medrol, and pain
medicine, Xylocaine. See (R. 923-930). Finally, Dr. Bugg offered no opinion on
Nelson’s ability to sit, stand, or walk, except to note only that Nelson had
“negative instability of the knee.” (R. 923, 927). In sum, while Dr. Bugg’s
treatment notes show that Nelson experienced some pain, they do not support a
finding that Nelson has disabling pain and, thus, do not support Dr. Shaffer’s
Lastly, in rejecting Dr. Shaffer’s questionnaire, the ALJ relied heavily on
the non-examining, reviewing opinion of Dr. Samuel Chastain, who completed a
Physical RFC on Nelson on September 24, 2007, in which he found that Nelson
had “[n]ormal physical exams and ROS negative other than obesity,” and opined
that Nelson could “occasionally lift 50 pounds and frequently lift 25 pounds,” and
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“stand or walk with normal breaks for a total of 6 hours in an 8 hour workday, sit
with normal breaks for a total of about 6 hours in an eight hour workday, and push
and pull without limits.” (R. 37, 563-570). Generally, when considering an
examining, non-treating medical opinion, “[t]he more a medical source presents
relevant evidence to support an opinion, particularly medical signs and laboratory
findings, the more weight we will give that opinion. The better an explanation a
source provides for an opinion, the more weight we will give that opinion.” 20
C.F.R. § 404.1527(c)(3). Additionally, “the more consistent an opinion is with the
record as a whole, the more weight we will give to that opinion.” Id. at §
404.1527(c)(4). Unlike Dr. Shaffer, Dr. Chastain supported his opinion with
medical findings in the record that showed that Nelson had normal physical exams
and that, except for her obesity, a review of her systems was negative. (R. 564).
Thus, the ALJ determined that Dr. Chastain’s opinion was consistent with the
entire record as a whole and gave it considerable weight.
Moreover, the ALJ also relied on Dr. Chastain’s assessment of Dr. Shaffer’s
findings. Specifically, Dr. Chastain stated that “Dr. Shaffer’s MSO is not
supported by his own records nor [the] rest of MER[.]”2 (R. 569). Dr. Chastain
supported this opinion by showing that despite Dr. Shaffer’s letter on July 12,
MSO refers to medical source opinion, and MER refers to medical evidence of record.
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2007 stating that Nelson was “unable to return to work until she is able to file for
her disability,” (R. 548), the evidence showed that on April 7, 2007, Nelson “[j]ust
had [a] negative cardiac cath. She feels verbally abused and picked upon at work.
ROS - no visual or ENT sxs. Musculoskelatal: no bone, joint, or muscle pain,”
and in February 2007, Nelson had “[n]ormal physical exam and negative ROS.”
(R. 569-70). The ALJ found Dr. Chastain’s assessment of Dr. Shaffer’s opinions,
along with the entire medical evidence, instructive.
Having reviewed the entire record, this court agrees with the ALJ that Dr.
Shaffer’s conclusions regarding the severity of Nelson’s physical impairments are
both internally inconsistent and unsupported by the record as a whole. See
Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir. 1984) (per curiam) (“[T]he
ALJ may reject the opinion of any physician when the evidence supports a
contrary conclusion.”). See also Crawford v. Comm’r of Social Security, 363 F.3d
1155, 1160 (11th Cir. 2004) (upholding ALJ’s decision to discount chiropractor
Reckford’s opinion, in part, because “Reckford’s findings of disability are
inconsistent with his own treatment notes and unsupported by the medical
evidence”). Ultimately, Nelson has the burden of proving that she is disabled. See
20 C.F.R. § 416.912(c). Nelson failed to meet this burden by failing to show how
the medical record supports Dr. Shaffer’s opinions. In fact, while Nelson has
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many medical problems and some apparent pain, the record before this court failed
to establish that Nelson’s medical conditions or pain rose to the severity of a
disability. Therefore, the substantial evidence supports the ALJ’s determination to
give little weight to Dr. Shaffer’s opinion.
ii. Consultative examination opinion by Dr. Adam Nortick
Nelson also contends that the ALJ erred by failing to give greater weight to
the consultative examining opinion of Adam Nortick, M.D.,which was purportedly
consistent with Dr. Shaffer’s. See doc. 7 at 6, 11; (R. 935-953). Generally, the
ALJ is to “give more weight to the opinion of a source who has examined [a
claimant] than to the opinion of a source who has not examined [the claimant].”
20 C.F.R. § 404.1527(c)(1). However, the ALJ considers many factors including
(1) supportability - whether the examining source presents supporting evidence for
his opinion, particularly medical signs and laboratory findings, 20 C.F.R. §
404.1527(c)(3); (2) consistency - whether the examining source’s opinion is
consistent with the record as a whole, 20 C.F.R. § 404.1527(c)(4); (3)
specialization - whether the examining source is a specialist and is giving an
opinion related to her speciality; and (4) other factors - evidence that tends to
support or contradict the opinion, 20 C.F.R. § 404.1527(c)(6). These factors
militate against a finding that the ALJ should have given more weight to Dr.
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Dr. Nortick examined Nelson on June 15, 2009, during which Nelson
complained primarily of knee pain and a backache lasting for the last five years,
which Nelson attributed to her weight. (R. 935). Dr. Nortick noted that Nelson
used a cane and that it stabilized Nelson’s slow and broad based gait. (R. 940).
Dr. Nortick’s examination revealed that Nelson was “positive for easily winded,”
was “short of breath, wheezing,” “can not stand unsupported on right/left leg for 5
seconds,” “can twist torso with difficulty,” “can laterally bend trunk with
difficulty,” “can get into and out of chair with difficulty, needs to use cane to
support,” and “can go from supine to sitting on exam table with difficulty, needed
assist to pull up.” (R. 939-40). Based on his own examination and a review of the
medical evidence provided by the DDS, Dr. Nortick opined that Nelson could sit,
stand, and walk “on an occasional basis.” (R. 946). Additionally, Dr. Nortick
completed a questionnaire in which, based on Nelson’s obesity and edema, he
stated that Nelson could not walk more than 50 feet without the use of her cane,
could occasionally lift and carry up to 10 pounds, can never lift anything over 11
pounds, could sit at most for 30 minutes and stand and walk for at most 10
minutes, and could sit for two hours in a total 8 hour work day and stand and walk
for only 30 minutes each in a total 8 hour workday. (R. 948-50).
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The ALJ gave little weight to Dr. Nortick’s findings because he found that
Dr. Nortick relied primarily on Nelson’s subjective complaints: “when [Nelson]
met with Dr. Nortick, the severity of symptoms alleged was much greater than
elsewhere in the medical record of evidence. Dr. Nortick’s opinion appears to
largely be based upon [Nelson’s] subjective complaints rather than the medical
evidence, and is inconsistent with the great weight of the medical evidence. I
afford his opinion little weight.” (R. 45). The ALJ added also that Dr. Nortick’s
findings are inconsistent with the entries he made from his examination of Nelson:
“Dr. Nortick’s physical examination found [Nelson’s] cervical range of motion
was within normal limits, her thoracic range of motion was within normal limits,
and her lumbar range was as follows: flexion 16, extension 18, left lateral flexion
20, left straight leg 62, right lateral flexion 22, and right straight leg 56 [also] [h]er
shoulder, elbow, forearm, wrist, hip, knee, ankle, and hand ranges of motion were
within normal limits.” (R. 41, 941-45).
Based on the court’s review of the medical record, the ALJ’s findings are
supported by substantial evidence. Specifically, Dr. Nortick failed to provide
substantial support for his opinions, never pointing to any particular part of the
medical record to justify them, and, critically, as the ALJ noted, he seemed to base
the majority of his opinions on Nelson’s statements to him. For example, Nelson
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told Dr. Nortick that she could only “sit in a comfy chair for 30 minutes, recline
for 30 minutes, watch television for 30 minutes, ride in a car for 30 minutes, drive
a car for 30 minutes. . . sit at dinner table for 30 minutes, listen to a speech for 30
minutes, ride in a car for 2 hours, ride in an airplane for 2 hours. . . sit on a park
bench for 30 minutes. . . sit on a bar stool for 30 minutes, go up one flight of stairs
and go down one flight of stairs.” (R. 938). This report seems to be the source for
Dr. Norton’s statements in the questionnaire that Nelson could sit for at most 30
minutes in an 8 hour workday. See (R. 948-50). Without specific medical
findings by Dr. Nortick, Nelson’s subjective statements are not enough to support
Dr. Nortick’s opinions. In sum, the substantial evidence supports the ALJ’s
determination to give little weight to Dr. Nortick’s opinions.
Alleged failure to give the vocational expert a hypothetical that
included all of Nelson’s impairments
Nelson also contends that the ALJ failed to “consider all established
vocational limitations,” and that “when the ALJ questioned the vocational expert
about past relevant work, he, of necessity, must also post hypothetical questions to
the vocational expert incorporating other established functional vocationally
relevant limitations including those outlined by Dr. Shaffer, the treating physician,
and by Dr. Nortick, the consulting physician.” Doc. 7 at 13. Generally, “[i]n order
for a vocational expert’s testimony to constitute substantial evidence, the ALJ
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must pose a hypothetical question which comprises all of the claimant’s
impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002).
However, the ALJ only has to include credible limitations in his hypothetical to
the vocational expert. See Perkins v. Astrue, 648 F.3d 892, 901-02 (8th Cir. 2011)
(“A hypothetical question posed to the vocational expert is sufficient if it sets forth
impairments supported by substantial evidence in the record and accepted as true. .
. The hypothetical question must capture the concrete consequences of the
claimant's deficiencies. . . However, the ALJ may exclude any alleged impairments
that [he] has properly rejected as untrue or unsubstantiated.”). In other words, in
light of the ALJ’s finding that Drs. Shaffer and Nortick’s opinions were not
wholly credible, the ALJ committed no error if he, in fact, failed to include their
findings in his hypothetical. Moreover, contrary to Nelson’s contention, the ALJ,
in fact, presented a hypothetical that comprised all of Nelson’s impairments.
Specifically, the ALJ established a hypothetical for a “52 year old individual who
has a masters degree” using the RFC the ALJ outlined, “no operation of foot or leg
controls...no climbing. No unrestricted heights and no driving,” “occasional
bending, stooping” and “occasional overhead reaching” with a “sit and/or stand”
limitation. (R. 92, 94, 95, 96). Based on these limitations, the vocational expert
testified that such a person could perform Nelson’s past relevant work of a
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Scheduler and an English teacher. (R. 96, 101). Put simply, the ALJ’s
hypothetical and the vocational expert’s testimony reveal that the vocational
expert considered Nelson’s relevant physical limitations. Thus, pursuant to
Wilson, 284 F.3d at 1227, the substantial evidence supports the vocational expert’s
testimony and the ALJ’s finding that Nelson is not disabled.
Based on the foregoing, the court concludes that the ALJ’s determination
that Nelson is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
Done the19th day of October, 2012.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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