Short v. Social Security Administration, Commissioner

Filing 12

Case reassigned to Judge L Scott Coogler for all further proceedings. Judge J Foy Guin, Jr no longer assigned to case. MEMORANDUM OPINION, as set out. Signed by Judge L Scott Coogler on 9/26/14. (CTS, )

FILED
2014 Sep-26 AM 11:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KAREN LOWE SHORT,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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2:12-cv-1799-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Karen Lowe Short, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying her
application for Social Security Income (“SSI”), Disability Insurance Benefits
(“DIB”), and Disabled Widow’s Benefits (“DWB”).1 Ms. Short timely pursued and
exhausted her administrative remedies and the decision of the Commissioner is ripe
for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Ms. Short was fifty-one years old at the time of the Administrative Law Judge’s

1

A claimant may be eligible for DWB if she is between fifty and sixty years of age and is
under a disability which began within a specified period. See 42. U.S.C. § 402(e)(1)(B)(ii); 20
C.F.R. § 404.335(c).

(“ALJ’s”) decision, and she has a twelfth grade education. (Tr. at 20, 79-80, 129, 132,
179, 181, 184.) Her past work experiences include employment as a housekeeper,
cashier, clerk, short-order cook, and caregiver. (Tr. at 79-80, 179, 181, 184.) Ms.
Short claims that she became disabled on June 25, 2009, due to hypertension, asthma,
heart problems, lower back pain, left arm neuropathy, and chronic obstructive
pulmonary heart disease (“COPD”). (Tr. at 60, 180, 209).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§
404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The
first step requires a determination of whether the claimant is “doing substantial
gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he or she is, the
claimant is not disabled and the evaluation stops. Id. If he or she is not, the
Commissioner next considers the effect of all of the physical and mental impairments
combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments
must be severe and must meet the durational requirements before a claimant will be
found to be disabled. Id. The decision depends on the medical evidence in the record.
See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant’s impairments
are not severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

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Otherwise, the analysis continues to step three, which is a determination of whether
the claimant’s impairments meet or equal the severity of an impairment listed in 20
C.F.R. pt. 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant’s impairments fall within this category, he or she
will be found disabled without further consideration. Id. If they do not, a
determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step five
requires the court to consider the claimant’s RFC, as well as the claimant’s age,
education, and past work experience in order to determine if he or she can do other
work. 20 C.F.R. §§ 404.1520(a)(4)(v) 416.920(a)(4)(v). If the claimant can do other
work, the claimant is not disabled. Id.
Applying the sequential evaluation process, the ALJ found that Ms. Short meets
the nondisability requirements for a period of disability and DIB and was insured

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through June 30, 2010. (Tr. at 25.) He further determined that Ms. Short has not
engaged in substantial gainful activity since the alleged onset of her disability. (Id.)
According to the ALJ, Plaintiff’s degenerative disc disease of the cervical spine,
bilateral degenerative joint disease of the shoulders, class I ischemic heart disease, and
mild COPD are considered “severe” based on the requirements set forth in the
regulations. (Tr. at 26). However, he found that these impairments, singly or in
combination, neither meet nor medically equal any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 27.) The ALJ did not find Ms. Short’s
allegations to be totally credible, and the ALJ determined that she has the RFC to
perform the full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b).
According to the ALJ, Ms. Short is able to perform her past relevant work as a
cashier. (Tr. at 31.) He determined that Plaintiff has past relevant work that “does
not require the performance of work-related activities [that are] precluded by
[Plaintiff’s] residual functional capacity.” (Id.) The ALJ concluded his findings by
stating that Plaintiff “has not been under a disability, as defined in the Social Security
Act, from June 25, 2009, the amended onset date of disability and through the date of
this decision.” (Tr. at 31.)

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II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts,
weigh evidence, or substitute its judgment for that of the Commissioner. Id. “The
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.
1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966)). Indeed, even if this Court finds that the evidence preponderates against the
Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for

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“despite this deferential standard [for review of claims] it is imperative that the Court
scrutinize the record in its entirety to determine the reasonableness of the decision
reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to
apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d
629, 635 (11th Cir. 1984).
III.

Discussion
Ms. Short alleges that the ALJ’s decision should be reversed and remanded for

two reasons. First, she argues that the ALJ did not accord proper weight to the
opinion of her treating physician. Second, she argues that the ALJ should have
applied Medical Vocational Guideline 201.14 to find her disabled at step five of the
sequential evaluation process.
A.

Weight Given to the Opinion of the Treating Physician

Plaintiff contends that the ALJ erred in giving little weight to the opinion of her
treating physician, Bruce Russell, M.D. As a general matter, the weight afforded to
a medical opinion regarding the nature and severity of a claimant’s impairments
depends, among other things, upon the examining and treating relationship the
medical source had with the claimant, the evidence the medical source presents to
support the opinion, how consistent the opinion is with the record as a whole, and the

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specialty of the medical source. See 20 C.F.R. §§ 404.1527(d), 416.927(d).
Within the classification of acceptable medical sources are the following
different types of sources which are entitled to different weights of opinion: 1) a
treating source, which is defined in the regulations as “your physician, psychologist,
or other acceptable medical source who provides you, or has provided you, with
medical treatment or evaluation and who has, or has had, an ongoing treatment
relationship with you;” 2) a non-treating source, which is defined as “a physician,
psychologist, or other acceptable medical source who has examined you but does not
have, or did not have, an ongoing treatment relationship with you;” and 3) a nonexamining source, which is a “a physician, psychologist, or other acceptable medical
source who has not examined you but provides a medical or other opinion in your case
. . . includ[ing] State agency medical and psychological consultants . . . .” 20 C.F.R.
§ 404.1502. The regulations and case law set forth a general preference for treating
sources’ opinions over those of non-treating sources, and non-treating sources over
non-examining sources. See 20 C.F.R. § 404.1527(d)(2); Ryan v. Heckler, 762 F.2d
939, 942 (11th Cir. 1985).
In fact, a treating physician’s testimony is entitled to “substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Crawford v.

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Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal quotations omitted).”Good
cause” exists for an ALJ to discount the weight of a treating physician’s opinion when
the: “(1) treating physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d
1232, 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also Edwards v.
Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding “good cause” existed where
the opinion was contradicted by other notations in the physician’s record). An ALJ
“may reject the opinion of any physician when the evidence supports a contrary
conclusion.” McCloud v. Barnhart, 166 F. App’x 410, 418–19 (11th Cir. 2006) (citing
Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983)).
The Court must also be aware that opinions on topics such as whether a
claimant is disabled, the claimant’s residual functional capacity, and the application
of vocational factors, “are not medical opinions . . . . but are, instead, opinions on
issues reserved to the Commissioner because they are administrative findings that are
dispositive of a case; i.e. that would direct the determination or decision of disability.”
20 C.F.R. §§ 404.1527(e), 416.927(d).

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In analyzing Plaintiff’s applications for benefits, the ALJ considered various
medical opinions and other evidence in the record. Plaintiff’s treating physician, Dr.
Russell, opined Plaintiff could lift at most 10 pounds occasionally; could sit 1 hour and
stand 2 hours per 8 hour workday; experienced pain that would distract from the
adequate performance of work; and suffered medication side effects that totally
restricted her ability to function at a productive level. (Tr. 257-59). The ALJ declined
to give this opinion significant weight as it was unsupported and inconsistent with
other evidence (Tr. 29). Instead, the ALJ gave significant weight to consultative
examining physician Dr. Bruce Romeo, finding his opinion was more consistent with
the evidence. (Tr. 30). Dr. Romeo opined Plaintiff could lift up to 20 pounds
frequently and 10 pounds occasionally, as well as sit and stand 8 hours each in a
workday. (Tr. 279-284).
The ALJ properly found Dr. Russell’s opinion was unsupported by the evidence
of record. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (requiring an ALJ to
consider supportability when weighing a medical opinion). Dr. Russell’s opinion
identifies dramatic limitations, yet identifies no impairment that would lead to such
limitations. (Tr. 257-259). As the ALJ noted, Dr. Russell never referred Plaintiff to a
pain management specialist or orthopedist for her alleged pain, which undermined her

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allegations of disabling pain. (Tr. 29). Moreover, Dr. Russell’s treatment notes are
devoid of objective findings that would support the limitations he assessed, but rather
rely largely on Plaintiff’s subjective complaints. A doctor’s report that merely repeats
the assertions of a patient whom the ALJ does not find credible is not objective
medical evidence and should not receive significant weight. See 20 C.F.R. §§
404.1528, 404.1529, 416.928, 416.929; Freeman v. Barnhart, 220 F. App’x 957, 960
(11th Cir. Mar. 23, 2007) (unpublished) (per curiam).
The ALJ also properly found Dr. Russell’s opinion was inconsistent with other
evidence. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (requiring an ALJ to
consider consistency with other evidence when weighing a medical opinion). In 1999,
Plaintiff complained of hurting her back while at work. (Tr. 310). She had mild
tenderness to palpation in her right lumbar region and a positive straight leg raise
(“SLR”) test. (Tr. 310). Despite these findings, Plaintiff retained 5/5 strength in both
her legs. (Tr. 310). In June 2009, examining physician Dr. David Gordon found
Plaintiff had no gross musculoskeletal atrophy or deformity, some tenderness to the
midline sacrum, and 5/5 flex and extension strength in her knees and hips. (Tr.
237-238). She had 5/5 hand grip strength bilaterally with normal finger dexterity and
intact sensation in all extremities. (Tr. 238). Her SLR test was negative. (Tr. 238). She

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could toe walk, heel walk, and squat and raise. (Tr. 238). Her limbs had no edema or
ulcerations. (Tr. 238). Dr. Gordon noted Plaintiff had no problems sitting, standing,
or walking in the hallway. (Tr. 238). She had mildly decreased range of motion
(“ROM”) testing in the cervical and dorso lumbar spine, with normal ROM
elsewhere. (Tr. 239-240). This substantial evidence indicates Plaintiff’s physical
limitations were not as severe as assessed by Dr. Russell.
Dr. Russell’s opinion also stated Plaintiff had limitations caused by medication
side-effects (Tr. 259). Plaintiff stated during the hearing that she experienced no side
effects whatsoever. (Tr. 71.) The ALJ properly noted that this further undermined
Dr. Russell’s opinion. (Tr. 29). Because the ALJ properly found Dr. Russell’s opinion
was unsupported and inconsistent with other evidence, the ALJ had “good cause” to
discount the opinion. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Lewis, 125 F.3d
at 1440.
By contrast, the ALJ properly found Dr. Romeo’s opinion merited significant
weight. Dr. Romeo examined Plaintiff and found she had no spasms or other issues
in the neck. (Tr. 270). She had no joint deformity, tenderness, synovitis, or effusion
in the extremities. (Tr. 271). There was no spasm or deformity in the back. (Tr. 271).
She demonstrated normal gait without an assistive device and had no postural

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limitations. (Tr. 271). Her neurological functioning was intact with normal reflexes,
grip strength, and dexterity. (Tr. 271). SLR testing was again negative. (Tr. 271). Dr.
Romeo found normal ROM throughout the body. (Tr. 270-274). He reviewed x-rays
of Plaintiff’s shoulders that showed mild hypertrophy of the left acromioclavicular
joint and moderate hypertrophy in the right. (Tr. 275-276). He also reviewed x-rays
of the lumbosacral spine showing no fracture or subluxation, disk spaces that were
well-preserved, and normal facet joints. (Tr. 277). He concluded the lumbosacral
spine was normal. (Tr. 277). Finally, Dr. Romeo reviewed x-rays of the cervical spine
that showed no fracture or subluxation, normal alignment, only moderate narrowing
at C5-6, and normal facet joints. (Tr. 278).
The foregoing objective findings support Dr. Romeo’s opinion that Plaintiff
could lift 20 pounds frequently, 10 pounds occasionally, sit and stand 8 hours per
workday, and would have no postural limitations. The opinion therefore merited
significant weight. See 20 C.F.R. §§ 404.1527(c), 416.927(c). Accordingly, the ALJ
properly weighed the medical evidence in the record.
B.

The ALJ’s Finding that Plaintiff was Capable of Performing Her
Past Relevant Work at Step Four

Plaintiff next argues the ALJ should have found her disabled under Medical
Vocational Guideline 201.14 at step five of the sequential evaluation process. As
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noted, step four of the sequential evaluation process requires the ALJ to consider
whether a claimant can return to her past relevant work; if the ALJ finds the
claimant’s severe impairments prevent her from returning to her past relevant work,
the ALJ moves to step five and determines whether the claimant can adjust to other
work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (v), 416.920(a)(4)(iv), (v). However, if
the ALJ finds at step four that the claimant is not disabled, the analysis ends, and he
does not proceed to step five. Id. §§ 404.1520(a)(4), 416.920(a)(4).
Here, the ALJ found Plaintiff not disabled at step four (tr. 31), so he properly
declined to engage in a step five analysis, to which the Medical Vocational Guidelines
(“grid rules”) would apply. See id.; SSR 86-8 (“when a determination or decision
that an individual is or is not disabled can be made at any step, evaluation under a
subsequent step is not necessary”) (emphasis in original).2 Because the grid rules
apply only at step five of the sequential evaluation process, see, e.g., 20 C.F.R. §
404.1520(f)(g), 416.920(f)(g), and because Plaintiff does not quarrel with the ALJ’s

2

The grid rules are a series of tables that constitute administrative notice of the numbers
of unskilled jobs that exist throughout the national economy. See 20 C.F.R. pt. 404, subpt. P,
app. 2 § 200.00(b). If a claimant’s combination of age, education, work experience, and RFC
match one of the grid rules, the rule will direct a conclusion as to whether work exists that the
claimant could perform. See id. However,” [w]here any one of [these] findings of fact does not
coincide with the corresponding criterion of a [grid rule], the [grid rule] does not apply in that
particular case and, accordingly, does not direct a conclusion of disabled or not disabled.” 20
C.F.R. pt. 404, subpt. P, app. 2 § 200.00(a).
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determination at step four that she can perform her past relevant work, the Court need
not consider Plaintiff’s argument regarding hypothetical step five findings.
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms. Short’s

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law. A separate order will be entered.
Done this 26th day of September 2014.

L. Scott Coogler
United States District Judge
[160704]

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