Thomason v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 2/22/16. (SMH)

FILED
2016 Feb-22 PM 04:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICHARD W. THOMASON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. 2:14-CV-01725-SLB

MEMORANDUM OPINION
Plaintiff Richard W. Thomason brings this action pursuant to 42 U.S.C. § 405(g),1
seeking review of the Commissioner of Social Security’s final decision denying his
application for supplemental security income [“SSI”]. Upon review of the record, the
relevant law, and the arguments of counsel, the court is of the opinion that the
Commissioner’s decision is due to be affirmed.
I. PROCEDURAL HISTORY
Mr. Thomason initially filed an application for SSI on August 23, 2011. (Doc. 6-3
at R.23.)2 His claim was denied initially. (Id.) Thereafter, he requested a hearing before an

1

The judicial review provision for a disability insurance benefits claims, 42 U.S.C. §
405(g), also applies to claims for SSI, see 42 U.S.C. § 1383(c)(3).
2

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record. Reference to a page numbers in the
Commissioner’s record, [“R.___”], refers to the page number assigned to the record by the
Commissioner.

Administrative Law Judge [“ALJ”]. (Id.; doc. 6-5 at R.70.) A video hearing was held on
December 19, 2012, with Mr. Thomason appearing in Cullman, Alabama, and the ALJ
presiding from Florence, Alabama. (Doc. 6-3 at R.23.) After the hearing, the ALJ found that
Mr. Thomason was capable of performing “other work that exists in significant numbers in
the national economy.” (Id. at R.38.) In light of this finding, the ALJ denied Mr.
Thomason’s claim for SSI on February 8, 2013. (Id.)
Mr. Thomason then asked the Appeals Council to review the ALJ’s decision. (Id. at
R.18.) On July 12, 2014, the Appeals Council “found no reason under [its] rules to review
the Administrative Law Judge’s decision. Therefore, [it] denied [Mr. Thomason’s] request
for review,” and the ALJ’s decision became the final decision of the Commissioner. (Id. at
R.1.)
The present appeal was filed on September 8, 2014. (Doc. 1.) In his Brief, Mr.
Thomason alleges, generally, that “the ALJ failed to properly evaluate the credibility of [Mr.
Thomason’s] testimony of disabling symptoms consistent with the Eleventh Circuit Pain
Standard.” (Doc. 11 at 3-4).
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is a
narrow one: “Our review of the Commissioner’s decision is limited to an inquiry into
whether there is substantial evidence to support the findings of the Commissioner, and
whether the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221

2

(11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court
gives deference to factual findings. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.
1991). It “may not decide the facts anew, reweigh the evidence, or substitute [its] judgment
for that of the [Commissioner], rather [it] must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.” Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)(quoting Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir.1983))(internal quotations and other citation omitted).

“The

Commissioner’s factual findings are conclusive if supported by substantial evidence.”
Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990);
Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)). “Substantial evidence” is “more than
a scintilla and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1178 (11th
Cir. 2011)(internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936
F.2d at 1145. “No . . . presumption of validity attaches to the [Commissioner’s] conclusions
of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
III. DISCUSSION
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential evaluation
to determine whether a claimant is eligible for SSI. See 20 C.F.R. § 416.920(a)(1)-(2);

3

Bowen v. City of New York, 476 U.S. 467, 470 (1986). “[A]n individual shall be considered
to be disabled for purposes of [determining eligibility for SSI benefits] if [he] is unable 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. §
1382c(a)(3)(A). The specific steps in the evaluation process are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations
define “substantial gainful activity” as “work activity that is both substantial and gainful.”3
20 C.F.R. § 416.972. If the claimant is working and that work is substantial gainful activity,

3

The regulation provides:

(a) Substantial work activity. Substantial work activity is work activity that
involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid less,
or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do
for pay or profit. Work activity is gainful if it is the kind of work usually done
for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like taking
care of yourself, household tasks, hobbies, therapy, school attendance, club
activities, or social programs to be substantial gainful activity.
20 C.F.R. § 416.972.
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the Commissioner will find that the claimant is not disabled, regardless of the claimant’s
medical condition or his age, education, and work experience. 20 C.F.R. § 416.920(b).
“Under [this] first step, the claimant has the burden to show that [he] is not currently engaged
in substantial gainful activity.” Reynolds-Buckley v. Commissioner of Social Sec., 457 Fed.
Appx. 862, 863 (11th Cir. 2012).4
The ALJ found that Mr. Thomason had not engaged in substantial gainful activity
since August 23, 2011, the application date. (Doc. 6-3 at R.25.)
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner must
next determine whether the claimant suffers from a severe impairment or combination of
impairments that significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. § 416.920(a)(4)(ii), (c). “[A] ‘physical or mental impairment’ is
an impairment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 1382c(a)(3)(D). The regulations provide: “[I]f you do not have any
impairment or combination of impairments which significantly limits your physical or mental
ability to do basic work activities, we will find that you do not have a severe impairment and

4

Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
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are, therefore, not disabled. We will not consider your age, education, and work experience.”
20 C.F.R. § 416.920(c). “An impairment can be considered as not severe only if it is a slight
abnormality which has such a minimal effect on the individual that it would not be expected
to interfere with the individual’s ability to work, irrespective of age, education, or work
experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R. §
416.921(a). A claimant may be found disabled based on a combination of impairments even
though none of the individual impairments alone are disabling. Walker v. Brown, 826 F.2d
996, 1001 (11th Cir. 1985); see also 20 C.F.R. § 416.923. A claimant has the burden to show
that he has a severe impairment or combination of impairments. Reynolds-Buckley, 457 Fed.
Appx. at 863.
The ALJ found that Mr. Thomason had the severe impairment of “history of
Kyphoplasty5 at T12/L1 on February 10, 2011.” (Doc. 6-3 at R.25 [footnote added].)
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets the duration requirement6 and whether it is

5

“Kyphoplasty is a . . . procedure to treat spinal compression fractures, whereby a
surgical instrument is introduced into the spine with a balloon that is inflated to expand the
bone. Once this instrument is withdrawn, the space created is then filled with the bone
cement mixture.” Brozyna v. Niagara Gorge Jetboating, Ltd., No. 10-CV-602-JTC, 2011
WL 4553100, at *2 n.1 (W.D.N.Y. Sept. 29, 2011)(internal quotations and citations omitted).
6

“Unless your impairment is expected to result in death, it must have lasted or must
be expected to last for a continuous period of at least 12 months. We call this the duration
requirement.” 20 C.F.R. § 416.909.
6

equivalent to any one of the listed impairments, which are impairments that are so severe as
to prevent an individual with the described impairment from performing substantial gainful
activity. 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404, Subpart P, Appendix
1 [The Listings]. If the claimant’s impairment meets or equals a Listing, the Commissioner
must find the claimant disabled, regardless of his age, education, and work experience. 20
C.F.R. § 416.920(d). The claimant has the burden of proving that his impairment meets or
equals the criteria contained in one of the Listings. Reynolds-Buckley, 457 Fed. Appx. at
863.
The ALJ found that Mr. Thomason did not have an impairment or combination of
impairments that met or medically equaled a Listing. (Doc. 6-3 at R.26.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment does not meet or equal the criteria of a Listing, the claimant must
prove that his impairment prevents him from performing his past relevant work. See 20
C.F.R. § 416.920(a)(4)(iv), (f). At step four, the Commissioner “will first compare [her]
assessment of [the claimant’s] residual functional capacity [RFC] with the physical and
mental demands of [the claimant’s] past relevant work.” 20 C.F.R. § 416.960(b). “Past
relevant work is work that [the claimant has] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for [him] to learn to do it. 20 C.F.R.
§ 416.960(b)(1). If the claimant is capable of performing his past relevant work, the
Commissioner will find he is not disabled. 20 C.F.R. § 416.920(e). The claimant bears the

7

burden of establishing that the impairment prevents him from performing past work.
Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Mr. Thomason had the following RFC:
. . . [T]he claimant has the residual functional capacity to perform light work as
defined in 20 C.F.R. 416.967(b)7 except claimant can occasionally lift and carry
twenty pounds and frequently ten pounds. The claimant is able to sit, stand, and walk
approximately six hours during an eight-hour workday. The claimant can
occasionally balance, stoop, kneel, crouch, and crawl. The claimant has no
manipulative, visual, or communicative limitations. The claimant should [avoid] all
exposure to hazardous machinery and unenclosed heights.
(Doc. 6-3 at R.27 [footnote added].) The ALJ also found that Mr. Thomason “was born [in]
April . . . 1961 and was 50 years old . . . on the date the application was filed,” and he had
a limited education and could communicate in English. (Id. at R.37.
The ALJ found that Mr. Thomason could not perform his past relevant work as a
painter or construction worker. (Id.)

7

Section 416.967(b) provides:

Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. . . .
20 C.F.R. § 416.967(b).
8

5. Other Work in the National Economy
If the claimant establishes that he is unable to perform his past relevant work, the
Commissioner must show that the claimant – in light of his RFC, age, education, and work
experience – is capable of performing other work that exists in substantial numbers in the
national economy. Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R. §
416.920(c)(1). The regulations provide:
If we find that your residual functional capacity is not enough to enable
you to do any of your past relevant work, we will use the same residual
functional capacity assessment we used to decide if you could do your past
relevant work when we decide if you can adjust to any other work. We will
look at your ability to adjust to other work by considering your residual
functional capacity and your vocational factors of age, education, and work
experience. Any other work (jobs) that you can adjust to must exist in
significant numbers in the national economy (either in the region where you
live or in several regions in the country).
20 C.F.R. § 416.960(c)(1).
Because the ALJ found Mr. Thomason could not perform a full range of light work,
he consulted a Vocational Expert [VE] to determine whether any jobs exist in the national
economy that Mr. Thomason, considering his RFC and other vocational factors, could
perform. The VE testified that an individual with Mr. Thomason’s limitations and vocational
factors could perform the “light” jobs of hand packager, inspector, and gluer. (Doc. 6-3 at
R.55-56.) Based on this testimony, the ALJ found that Mr. Thomason could perform other
work, and, therefore, had not been under a disability since August 23, 2011. (Id. at R.38.)
B. ISSUE ON APPEAL

9

Mr. Thomason contends that “the ALJ failed to properly evaluate the credibility of
[Mr. Thomason’s] testimony of disabling symptoms consistent with the Eleventh Circuit Pain
Standard.” (Doc. 11 at 3-4). Based on the record, the court finds that the ALJ properly
applied the pain standard and that the record contains substantial evidence to support the
ALJ’s credibility findings.
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,
1221 (11th Cir. 2002); 20 C.F.R. § 404.1529. When the objective medical evidence does not
confirm the severity of the alleged pain, the question becomes whether the underlying
medical condition could reasonably be expected to give rise to the alleged pain. Id. This
determination is a question of fact for the ALJ, subject to the substantial evidence standard
of review. Lamb v. Bowen, 847 F.2d 698, 702 (11th Cir. 1988).
Because the application of this standard often requires a credibility assessment, the
ALJ’s reasons for discrediting the claimant’s testimony must be premised on substantial
evidence and be sufficiently explicit. See e.g., Marbury v. Sullivan, 957 F.2d 837, 839 (11th
Cir. 1992); Smallwood v. Schweiker, 681 F.2d 1349, 1352 (11th Cir. 1982).

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The

determination of credibility is reserved solely for the Commissioner and is not a proper
function for the courts. Daniels v. Apfel, 92 F. Supp. 2d 1269, 1280 (S.D. Ala. 2000)(citing
Grant v. Richardson, 445 F.2d (5th Cir. 1971)).8 When the Commissioner states a clear
finding of credibility, it should not be disturbed unless it is not supported by substantial
evidence. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
In applying the pain standard, the ALJ must explicitly articulate his reasons for
rejecting the claimant’s subjective complaints of pain; if the ALJ fails to properly articulate
his reasons for discrediting the claimant’s subjective complaints of pain, the court must
accept the testimony as true. Hale v. Bowen, 831 F.3d 1007, 1012 (11th Cir. 1987).
The court finds that the ALJ properly applied the pain standard. In his decision, the
ALJ found, “After careful consideration of the evidence, . . . the claimant’s medically
determinable impairments could reasonably be expected to cause symptoms; however, the
claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible . . . .” (Doc. 6-3 at R.33.) In making his findings, the
ALJ discussed inconsistencies in Mr. Thomason’s testimony regarding his pain, as well as
addressing Mr. Thomason’s history of conservative medical treatment and medical testing
showing mild to moderate symptoms. (Id. at R.33-34.) The court finds the ALJ clearly
identified, and properly applied, the appropriate legal standard.

8

Decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1,
1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir. 1981)(en banc).
11

Mr. Thomason also argues, “The ALJ sets forth several reasons for failing to credit
the Plaintiff’s testimony of disabling symptoms, none of which are supported by substantial
evidence of record.” (Doc. 11 at 5.) The court disagrees.
1. MRI Results
In support of his contention that the ALJ’s credibility determination is not supported
by substantial evidence, Mr. Thomason argues:
The ALJ references the MRI of August 3[,] 2011[,] but does not take into
account all of the abnormalities documented by that MRI. (R.34). That MRI
documented the presence of mild compression fracture [deformities] at T12-L1
and mild amount of residual edema; multi-level spondylosis with fluid most
prominent in the facets at L3-4 and posterior central annual tears at L4-5 and
L5-S1. (R.236, 237, emphasis added). Despite, these objective findings, the
ALJ places emphasis on what the MRI notes as “mild” compression fracture,
residual edema and lateral recess encroachment. (R.34). He completely
disregards the presence of multi-level spondylosis and annual tears which
could reasonably cause the pain and limitations testified to by the Plaintiff.
That blatant disregard is evident from the ALJ’s failure to include those
documented impairments as severe in his decision.
(Doc. 11 at 6.)
Mr. Thomason’s contention that the ALJ “completely disregard[ed]” portions of the
MRI results, (id.), is rebutted by the ALJ’s Decision, which sets forth all the findings from
the MRI, (compare doc. 6-3 at R.34, R.36 with doc. 6-8 at R.236-37). Moreover, Mr.
Thomason argues that the ALJ disregarded the findings of the MRI because he did not
include the diagnoses of multi-level spondylosis and posterior central annual tears as severe
impairments at step two of the sequential analysis. (Doc. 11 at 6.) The law is well
established that “the finding of any severe impairment, whether or not it qualifies as a
12

disability and whether or not it results from a single severe impairment or a combination of
impairments that together qualify as severe, is enough to satisfy the requirement of step two.”
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)(citing, inter alia, Cantrell v. Bowen,
804 F.2d 1571, 1573 (11th Cir. 1986); Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984)).
The ALJ found Mr. Thomason had a severe impairment – kyphoplasty at T12-L1. Therefore,
the ALJ moved past step two and considered Mr. Thomason’s condition as a whole at the
later steps of the sequential analysis. See id. (citing Hudson v. Heckler, 755 F.2d 781, 785
& n.2 (11th Cir. 1985); Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983)).
Mr. Thomason argues that he is disabled due to back pain. (Doc. 11 at 4.) There is
no question that the ALJ thoroughly considered Mr. Thomason’s complaints of disabling
back pain – whether he found the pain was caused by his prior back surgery or some other
spinal “deformity.” Therefore, the court finds no basis for reversing the Commissioner’s
decision based on the ALJ’s failure to consider the August 2011 MRI.
2. Dr. DeLoach’s Examination
Mr. Thomason argues:
Another example of the ALJ selectively choosing isolated notations to support
his finding is evident from his interpretation of the Plaintiff’s examination by
Dr. DeLoach. (R.34). The ALJ implicitly noted this exam was normal.
(R.34). However, he disregards notations from that examination which show
the Plaintiff was limited due to his back pain. (R.34, 265). For example, Dr.
DeLoach noted the Plaintiff was able to get on and off the examination table
without any problems, however, it required some effort to get up and out of the
chair. (R.265, emphasis added). Further, it was noted the Plaintiff was able
to dress himself but “had to sit or hold on to something.” (R.265, emphasis
added). The ALJ’s reasoning is not supported by substantial evidence as he
13

chose isolated notations to support his findings and ignored the medical record
as a whole which would lead a rational fact finder to a contrary conclusion.
(Doc. 11 at 6-7.)
“In determining whether substantial evidence exists, the Court must also consider
evidence that is favorable as well as unfavorable to the Commissioner’s decision. . . . [T]he
Commissioner's findings must be grounded in the entire record; a decision that focuses on
one aspect of the evidence and disregards other contrary evidence is not based upon
substantial evidence.” Lynch v. Astrue, 358 Fed. Appx 83, 86 (11th Cir. 2009)(citing Chester
v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986); McCruter v. Bowen, 791 F.2d 1544, 1548
(11th Cir. 1986)). Dr. Deloach’s report at issue stated that Mr. Thomason “require[d] some
effort” to “get up and out of a chair;” however, he was able to get on and off the examining
table “without any problems.” (Doc. 6-8 at R.265.) He also noted that Mr. Thomason “had
to sit or hold something” to get dressed. (Id..) The ALJ did not ignore this evidence; to the
contrary, he expressly noted these statements in his decision.9 (Doc. 6-3 at R.34 .) Certainly,

9

The ALJ stated:

On October 22, 2011, consultative examiner, Victor DeLoach, M.D., examined
the claimant. During Dr. DeLoach’s examination, he observed that the
claimant’s ambulation was normal. He was able to get on and off the
examination table without any problems. He got up and out of the chair, but
required some effort. He was able to dress himself, but had to sit or hold on
to something. His lungs were clear and his heart normal. His abdomen was
normal. There was no clubbing or cyanosis noted. His gait was normal.
Range of motion of his cervical spine was normal. He had decreased range of
motion of his lumbar spine. His straight leg raise was seventy in the supine
position and eighty in the sitting position. However, he was able to walk on
14

the ability to get on and off the examining table appears inconsistent with the inability to rise
from a chair without effort or to stand while getting dressed. Nevertheless, the court finds
that the ALJ expressly considered this evidence in determining that Mr. Thomason’s back
pain was no more than moderate. (Doc. 6-3 at R.34, R.36.) Moreover, the ALJ discussed
other medical reports and examination notes in the record. Therefore, the court finds that Mr.
Thomason’s claim that the ALJ chose isolated notations to support his decision and ignored
other evidence is not supported by the record.
3. Conservative Treatment
Mr. Thomason contends that the ALJ’s finding that his claims of disabling back pain
were negated by his conservative treatment is as mischaracterization of the evidence and is
not supported by substantial evidence. (Doc. 11 at 7 [citing doc. 6-3 at 35].) The court
disagrees. The ALJ held:
Moreover, while the evidence shows that the claimant has had fairly extensive
treatment for his back pain, he has been treated conservatively with medication
only, which negates the severity of this condition. The claimant received
treatment at Med Assist from August 15, 2011 until November 14, 2012 for
hypertension, anxiety, and back pain. The claimant was diagnosed with
hypertension and chronic low back pain from failed back surgery. He was
always treated with medication, with the exception of the claimant receiving
one injection (Exhibits 4F, 6F, and 13F). From November 28, 2011 until

his heels. He could not squat, but he could toe walk. The claimant was
neurologically intact. Dr. De Loach concluded that the claimant's straight leg
test and flexion of his back was abnormal, but his range of motion was normal
in the majority of his joints, (Exhibit 7F)(emphasis added).
(Doc. 6-3 at 34 [emphasis in original]; see also id. at 36.)
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November 14, 2012, the claimant was diagnosed with [paraspinal] tenderness
in the lumbar spine and given a refill of his medication (Exhibit 13F). Hence,
it is safe to assume that the claimant’s condition was not severe enough to
warrant more aggressive treatment. The lack of more aggressive treatment is
further evidenced by the fact that the claimant stated that the medication was
working. On September 18, 2012, the claimant reported to Med Assist for
back pain and anxiety. The claimant wanted a refill . . . on his medications. He
stated that the medications were working well. He underwent a physical
examination where it was noted that the claimant had tenderness in his lumbar
spine, but [the examination was] otherwise unremarkable. The claimant was
diagnosed with generalized anxiety disorder and failed back syndrome. His
medications were refilled and it was noted that his condition was controlled
(Exhibit 13F).
(Doc. 6-3 at 35.)
The court has carefully reviewed the entire record and concludes that the ALJ properly
characterized Mr. Thompson’s complaints and his treatment. Although his treatment for
back pain was extensive, it was conservative following his kyphoplasty, consisting of
prescription medications and one injection. The court finds no reversible error.
4. Dr. Heilpern’s Opinion
Mr. Thompson argues that the ALJ erred in giving great weight to the opinion of the
state reviewing physician, Dr. Heilpern. (Doc. 11 at 8.) He contends, “Dr. Heilpern’s
opinion is inconsistent with the treating records documenting abnormal physical findings as
well Dr. DeLoach’s observations that the Plaintiff required ‘some effort to get up and out of
the chair’ and ‘had to sit or hold on to something’ when getting dressed.” (Doc. 11 at 8
[citing R.253, 262, 265, 308] [emphasis deleted].)
In evaluating medical opinions, the ALJ considers many factors,
including the examining relationship, the treatment relationship, whether an
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opinion is amply supported, whether an opinion is consistent with the record
and the doctor's specialization. See 20 C.F.R. §§ 404.1527(d), 416.927(d).
Generally, the more consistent a physician's opinion is with the record as a
whole, the more weight an ALJ should place on that opinion. Id. §§
404.1527(d)(4), 416.927(d)(4). Usually, the opinions of treating physicians are
given more weight than non-treating physicians, and the opinions of examining
physicians are given more weight than non-examining physicians. See id. §§
404.1527(d)(1)-(2), 416.927(d)(1)-(2). A non-examining doctor's opinion that
contradicts an examining doctor's medical report is accorded little weight and
cannot, standing alone, constitute substantial evidence. Edwards v. Sullivan,
937 F.2d 580, 584 (11th Cir.1991). However, the ALJ may rely on a
non-examining physician's opinion if it does not contradict the examining
physician's medical findings or test results in the medical report. See id. at
585.
Flowers v. Comm'r of Soc. Sec., 441 F. Appx 735, 740 (11th Cir. 2011).
The ALJ found that Dr. Heilpern’s opinion was consistent with the medical records,
including the August 2011 MRI and Dr. Deloach’s report. (Doc. 6-3 at 36.) The court
agrees. Indeed, contrary to Mr. Thomason’s assertion, Dr. Heilpern’s reports specifically
refers to Dr. DeLoach’s observations regarding Mr. Thomason’s difficulty with rising from
a chair and difficulty in dressing himself while standing; he also notes that Dr. DeLoach
observed Mr. Thomason had no difficulty getting on and off the table and other findings
regarding Mr. Thomason’s claim of disabling back pain. (See doc. 6-8 at R.270, 273.) Mr.
Thomason has not shown that the ALJ erred in assigning great weight to Dr. Heilpern’s
opinion.
Thus, based on its review of the administrative record, the court finds that the ALJ’s
factual findings are supported by substantial evidence and that he correctly applied the law

17

to those facts. Therefore, the Commissioner’s decision denying Mr. Thomason’s claim for
SSI will be affirmed.
CONCLUSION
For the reasons set forth above, the decision of the Commissioner is due to be
affirmed.

An Order affirming the decision of the Commissioner will be entered

contemporaneously with this Memorandum Opinion.
DONE this 22nd day of February, 2016.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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