Brock v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 10/8/2013. (MSN)
2013 Oct-08 PM 02:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DEBORAH K. BROCK,
CAROLYN W. COLVIN,
Acting Commissioner of the Social
MEMORANDUM OF OPINION
Plaintiff Deborah Brock (“Plaintiff”) brings this action pursuant to Title II of
Section 205(g) and Title XVI of Section 1631(c)(3) of the Social Security Act (the
“Act”), seeking review of the decision by the Commissioner of the Social Security
Administration1 (“Commissioner”) denying her claims for a period of disability and
disability insurance benefits (“DIB”) and supplemental security income (“SSI”). See
also 42 U.S.C. §§ 405(g), 1383(c). After careful review, the court finds that the
decision of the Commissioner is due to be affirmed.
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Therefore, she should be substituted for Commissioner Michael J. Astrue as Defendant in this
suit. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an
official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).
Plaintiff applied for DIB and SSI on October 4, 2004, alleging disability
beginning on April 5, 2004, due to severe lower back pain, carpal tunnel syndrome in
the right hand, migraines, and “problems with both feet.” [R. 84; 98-99; 138; 142].
The Social Security Administration denied Plaintiff’s claims on February 2, 2005. [R.
144]. Plaintiff requested and received a hearing before an administrative law judge
(“ALJ”) on July 19, 2006.2 [R. 494-533]. The ALJ issued an opinion on December 2,
During the hearing, Plaintiff testified about her pain. Plaintiff stated that she first
experienced back pain in late 2003 or early 2004. [R. 514]. She indicated that her back pain radiated
down both legs and that she was in constant pain. [R. 516]. According to Plaintiff, standing up
aggravates her pain. [R. 521]. Plaintiff testified that at night she will sleep for about two hours before
the pain wakes her up for an hour or two. [R. 518-519]. According to Plaintiff, when this happens,
she is in constant motion trying to relieve the pain. [R. 519]. Plaintiff was currently taking
Oxycodone, Zanaflex, Elavil, and various other medications to treat nausea and high blood pressure.
[R. 520-521]. Plaintiff stated she must take her pain medication every day. [R. 521]. No doctor had
suggested Plaintiff would benefit from surgery. [R. 527].
Plaintiff also testified that she had been treated for bursitis in her right shoulder. [R. 515].
According to Plaintiff, injections helped relieve that pain for a short time. [R. 516]. Plaintiff testified
she had not received physical therapy because she could not afford it. [R. 516]. Although Plaintiff
had previously suffered from migraines, she stated she had not “had one in while.” [R. 518].
Plaintiff stated that her pain prevented her from doing household chores as quickly as she
could before. [R. 523]. She testified that she cooks less frequently and that her husband did the
grocery shopping. [R. 524]. Plaintiff stated she could shower and bathe independently but
sometimes used a shower chair. [R. 524].
A vocational expert (“VE”) also testified at the hearing that Plaintiff’s past relevant work
included jobs as a substitute teacher and sewing machine operator. [R. 529-530]. Rather than posing
a hypothetical to the VE, the ALJ noted his dissatisfaction with the record and gave Plaintiff an
additional 30 days to submit evidence from treating sources. [R. 531-532].
2006, denying Plaintiff’s applications.3 [R. 47-52]. The Appeals Council subsequently
granted Plaintiff’s request for review and remanded the case to a different ALJ.4 [R.
390-392]. After a supplemental hearing on April 11, 2008 [R. 534-589], the ALJ issued
a decision on September 3, 2008, denying Plaintiff’s applications. [R. 23-29]. On
August 3, 2010, the Appeals Council denied Plaintiff’s request [R. 6-8], making the
Commissioner’s decision final and a proper subject of this court’s judicial review. See
42 U.S.C. §§ 405(g), 1383(c)(3).
After finding that Plaintiff did not have an impairment or combination of impairments that
have significantly limited her ability to perform work-related activities for 12 consecutive months,
the ALJ terminated his analysis at step two of the sequential evaluation and concluded that Plaintiff
was not disabled within the meaning of the Act. [R. 47-52; 390].
In its order remanding the case to an ALJ, the Appeals Council noted that Social Security
Ruling 85-28 stipulates that a claimant may only be “disabled” at step two of the evaluations under
limited circumstances. [R. 390]. Having concluded those circumstances were not established in this
case, the Appeals Council further noted that Plaintiff’s impairments, and their associated limitations,
meet the definition of severe impairment and that further evaluation beyond step two was required.
[R. 390-391]. The Appeals Council also found that although the hearing decision indicated Plaintiff’s
subjective complaints were not entirely credible, the ALJ failed to consider the proper factors in
evaluating credibility. [R. 391]. Upon remand, the new ALJ was instructed to do the following: (1)
update the record with any available evidence from treating and/or examining sources with medical
source statements about what Plaintiff could do despite her impairments; ( 2) further evaluate
Plaintiff’s subjective complaints and provide rationale in accordance with the disability regulations
pertaining to evaluation of symptoms, including 20 C.F.R. §§ 404.1529, 416.929 and Social Security
Ruling 96-7p; (3) give consideration to all opinion evidence and explain the weight given to such
evidence; (4) give consideration to Plaintiff’s maximum residual functional capacity (“RFC”) and
provide appropriate rationale and specific references to evidence of record in support of the assessed
limitations; and (5) obtain evidence from a vocational expert to clarify the effect of the assessed
limitations. [R. 391].
The ALJ to whom the Appeals Council remanded the case held a video hearing
on April 11, 2009. [R. 536]. The ALJ took testimony from three witness: Plaintiff; a
medical expert; and a vocational expert (“VE”).
Plaintiff testified that she was currently experiencing pain at a five or six on a
ten-point scale. [R. 569]. She stated that she could only sit for about 30 minutes
before she begins to hurt. [R. 570]. Plaintiff further testified that she could only stand
for about ten minutes before needing to sit down. [R. 570]. According to Plaintiff, on
a good day, she could walk about a block before needing to stop and rest. [R. 570].
Plaintiff stated that she never experienced a day without pain. [R. 571]. Plaintiff
further testified that she could not vacuum but that she could wash a few dishes. [R.
572]. Plaintiff stated when she tries to cook she has “to go get a chair and pull it up
to the stove to finish cooking.” [R. 572]. According to Plaintiff, her medications cause
her to feel sleepy and drowsy. [R. 573]. Plaintiff also stated that her pain required her
to lie down off and on throughout any given day for a total of two hours a day. [R.
Medical Expert’s Testimony
Dr. Gerald Winkler, M.D., a board certified neurologist, testified as a medical
expert during the hearing.5 Dr. Winkler reviewed Plaintiff’s medical records including
results from various medical tests, her history of back pain and headaches, and her
treatment for bursitis. [R. 539].
Dr. Winkler rejected Dr. Connor’s diagnoses of radiculopathy and sciatica due
to what he described as an “absence of data to support such” diagnoses. [R. 542].
Specifically, Dr. Winkler stated that Dr. Connor’s examination in January 2007 that
noted negative straight leg raising would undermine a radiculopathy diagnosis. [R.
546]. Dr. Winkler opined that he did not see evidence to support Dr. Ulrich’s
diagnoses of inflammation of the sacroiliac joint and inflammation of the bones of the
back. [R. 544]. Dr. Winkler stated that Dr. Ulrich also commented on the bolt
actuated sensory nerve conduction performed by Dr. Connor. [R. 544]. Dr. Winkler
reviewed the test findings summary and stated it used many abbreviations and was
“very cryptic.” [R. 555-556]. Dr. Winkler also noted that the study findings stated
that “clinical correlation is recommended,” which according to Dr. Winkler
suggested that no conclusions should be drawn based only on those test results. [R.
556]. Dr. Winkler also noted that Dr. Ulrich consulted with a neurologist to enhance
his understanding of those test results and then indicated that the study signified
Plaintiff’s attorney did not object to Dr. Winkler’s qualifications but reserved the right to
question him regarding his familiarity with the listings. [R. 538].
something wrong with the “peripheral nerves neuropathy.” [R. 544]. Dr. Winkler
opined that he would not have adopted that conclusion based upon the evidence. [R.
544]. In response to further questioning by Plaintiff’s attorney on this point, Dr.
Winkler stated that he did not “see the evidence to support” a diagnosis of
polyneuropathy as suggested by Dr. Ulrich in an August 2006 letter. [R. 553]. Dr.
Winkler also stated that he saw no evidence in Plaintiff’s medical records supporting
Dr. Ulrich’s internal disc destruction diagnosis. [R. 545].
Dr. Winkler testified that Plaintiff’s physicians had interpreted her facets
(which are surfaces that form joints in between the vertebrae in the back) as being the
origin of her pain based upon the appearance of some minimal degenerative changes.
[R. 549]. However, according to Dr. Winkler, these minimal degenerative changes
appear in most individuals as they age and in many instances are not associated with
any pain. [R. 549]. Thus, Dr. Winkler stated that although facets may be a source of
pain, a physician should conclude so with caution. [R. 549-550].
Dr. Winkler testified that Dr. Ulrich’s conclusion that Plaintiff was depressed
was “a very plausible statement” and required more information in order to be
adopted. [R. 557]. Dr. Winkler opined that “an objective basis for functional
limitation has not been established” and that “the only limitation would derive from
[Plaintiff’s] subjective complaints of pain and the limitations resulting therefrom.” [R.
Vocational Expert’s Testimony
The VE testified that Plaintiff’s past relevant work included jobs as a sewing
machine operator and substitute teacher. [R. 566-568]. In response to a hypothetical
posed by the ALJ, the VE testified that someone of Plaintiff’s age, education, with
work consistent with the VE’s classification of Plaintiff’s past relevant work, who
could occasionally have pain up to one-third of the time but not such as could be
debilitating where she has to lie down, could perform Plaintiff’s past relevant work,
which was classified as light work. [R. 568].
In response to a hypothetical posed by Plaintiff’s attorney, the VE testified that
assuming if someone like Plaintiff had to lie down for a total of two hours during the
day, there would be no jobs she could perform. [R. 577].
Plaintiff initiated care with Dr. Odeane Connor, M.D., on July 21, 2004, for
treatment of lower back pain. [R. 210]. Dr. Connor saw Plaintiff on a monthly basis
through mid-2007. [R. 195-212; 221-270; 287-333; 422-427; 434-463]. Dr. Connor
diagnosed Plaintiff with low back pain with radiculopathy and sciatia. [R. 201, 204,
207]. Dr. Connor’s physical examination notes vary little and indicate that Plaintiff’s
active and passive ranges of motion were within normal limits; that straight leg raise
testing was negative; that lumbar flexion extension and rotation were moderately
limited; and that some tenderness was present upon palpation. [R. 201, 204, 207, 244,
246, 249, 253, 255, 257, 259, 261, 305, 307, 309, 311, 313, 315, 317, 318, 449, 453, 457,
A July 2004 MRI revealed minimal anterior osteophytic changes, and no
herniation, significant disc bulging or significant disc abnormalities. [R. 194]. A CT
scan performed one month later demonstrated normal lumbar discs without evidence
of “annual bulge, disc protrusion, or disc extrusion.” [R. 192]. A lumbar myelogram
performed the same day indicated normal curvature and alignment. [R. 193]. No
anterior or lateral defects were seen and the lumbar nerve root sleeves filled
symmetrically. [R. 193].
In November 2004, Dr. Connor conducted a nerve
conduction threshold. [R. 264]. The test results contain no interpretation or
diagnosis. However, the test results state that “clinical correlation is recommended.”
[R. 264]. Dr. Odeane ordered another MRI in March 2006. [R. 319]. The test
indicated minimal degenerative changes but vertebral alignment was well-maintained
and there was no evidence of acute abnormality. [R. 319].
In March 2006, Plaintiff reinitiated care with a former provider, Dr. Russell
Ulrich, D.O. [R. 347]. At this time, she reported that her blood pressure had been
high. [R. 347]. Examination notes state that Plaintiff “[wa]s not having any other
problems.” [R. 347]. Plaintiff saw Dr. Ulrich again in August 2006, at which time she
reported that she had “significant back pain.” [R. 346]. Treatment notes from this
visit indicate that Plaintiff had applied for disability and had a hearing before an ALJ
with only records from Dr. Connor. [R. 346]. Plaintiff’s back was tender at L5-S1 but
her straight leg raising and deep tendon reflexes were normal. [R. 346]. Progress notes
dated two weeks later indicate that Dr. Ulrich had reviewed Dr. Connor’s records.
Dr. Ulrich noted the nerve conduction study was “different than [he had] seen
before” because it separated pain fibers to determine if they were being injured. [R.
345]. According to Dr. Ulrich’s reading of the test results, both of Plaintiff’s pain
fibers were being injured. [R. 345]. He diagnosed Plaintiff with low back pain and
polyneuropathy. [R. 345].
In a letter to Plaintiff’s attorney dated August 11, 2006, Dr. Ulrich opined that
“[i]n today’s medical world, [Plaintiff] most likely would be labeled with fibromyalgia
because all her objective tests except for the nerve conduction studies have been
normal.” [R. 372]. Dr. Ulrich’s letter also states that upon review of the nerve
conduction study, he found objective evidence of polyneuropathy of the pain fibers
but that the cause was still uncertain. [R. 372]. The letter further states that Plaintiff
is not able to be gainfully employed because her pain is so severe that she cannot sit
for prolonged periods of time. [R. 372].
Dr. Mohammad Ismail, M.D. completed a consultative disability determination
examination on August 30, 2006. [R. 377-379].
Dr. Ismail’s examination
demonstrated that Plaintiff could sit and stand without any help and that she had a
normal gait. [R. 378]. Plaintiff also had the ability to walk on heels and toes
unrestricted. [R. 378]. Plaintiff did not limp and no staggering was observed during
walking. [R. 378]. Touch, vibration, and pain sensations were increased in both legs
up to the middle of the calf. [R. 378]. Plaintiff’s reflexes were “brisk” in both legs. [R.
378]. Leg raising on each side did not produce any back pain and standing on her feet
showed no deformity or swelling. [R. 378]. Plaintiff was tender in the lumbar area
before L4 and L5 and was tender on the sacroiliac joints on the right side. [R. 379].
But, her lumbar spine movements were unrestricted despite the pain and tenderness.
[R. 379]. Dr. Ismail diagnosed Plaintiff with non-mechanical back ache without any
evidence of no functionality and possible neuropathy but no evidence of any
neuropathic legs.6 Dr. Ismail noted that “[t]here was a question whether [Plaintiff]
had neuropathy.” [R. 377]. Dr. Ismail found no objective evidence of Plaintiff’s
complaints of pain and opined that no restriction kept her from working. [R. 379].
Dr. Ismail indicated that he could not comment about the nerve conduction study on his
physical examination. [R. 379].
Disability under the Act is determined under a five-step test. 20 C.F.R. §
First, the ALJ must determine whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). “Substantial work
activity” is work activity that involves doing significant physical or mental activities.
20 C.F.R. § 404.1572(a). “Gainful work activity” is work that is done for pay or
profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant engages in
substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §
404.1520(b). Second, the ALJ must determine whether the claimant has a medically
determinable impairment or a combination of medical impairments that significantly
limits the claimant’s ability to perform basic work activities.
20 C.F.R. §
404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability.
(Id.). Third, the ALJ must determine whether the claimant’s impairment meets or
medically equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P,
Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria
are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared
disabled under the third step, the ALJ may still find disability under the next two steps
of the analysis. The ALJ must first determine the claimant’s residual functional
capacity (“RFC”), which refers to the claimant’s ability to work despite her
impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines
whether the claimant has the RFC to perform past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past
relevant work, then the claimant is deemed not disabled. (Id.). If the ALJ finds the
claimant unable to perform past relevant work, then the analysis proceeds to the fifth
and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last part of the analysis, the ALJ
must determine whether the claimant is able to perform any other work commensurate
with her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(g). Here,
the burden of proof shifts from the claimant to the ALJ to prove the existence, in
significant numbers, of jobs in the national economy that the claimant can do given her
RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c).
In the instant case, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since April 5, 2004, the alleged onset date. [R. 24]. The ALJ then
concluded that Plaintiff had the following severe impairments: migraine headaches
and myofacial pain. [R. 24]. Nonetheless, the ALJ determined that Plaintiff did not
have an impairment or combination of impairments that meets or medically equals one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 27]. The
ALJ found that Plaintiff has the RFC to perform her past relevant work as a sewing
machine operator and substitute teacher, both of which are classified as semiskilled,
light work. [R. 28]. Accordingly, the ALJ concluded that Plaintiff was not disabled,
as that term is defined in the Act. [R. 28].
Plaintiff’s Argument for Reversal
Plaintiff seeks to have the Commissioner’s decision reversed, or in the
alternative, remanded for further proceedings. [Pl.’s Mem. 2]. Plaintiff contends that
the ALJ’s decision is not supported by substantial evidence and that improper legal
standards were applied because: (1) the ALJ misapplied the Eleventh Circuit’s pain
standard for establishing disability; (2) the ALJ erred by limiting Dr. Winkler’s
testimony concerning pain; and (3) the ALJ erred in failing to consider Plaintiff’s
peripheral neuropathy of the lower extremities as a “severe” impairment in his
analysis. [Pl.’s Mem. 11-13].
Standard of Review
The only issues before this court are whether the record reveals 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 correct legal standards were
applied. 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)(3) mandate that
the Commissioner’s 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, 894 F.2d at 1529 (quoting Bloodsworth,
703 F.2d at 1239) (other citations omitted). If supported by substantial evidence, the
Commissioner’s factual findings must be affirmed even if the evidence preponderates
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, the court
also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
After careful review, the court finds that substantial evidence supports the
ALJ’s opinion and that proper legal standards were applied.
The ALJ Properly Applied the Eleventh Circuit Pain Standard
Plaintiff’s first argument on appeal is that the ALJ failed to properly apply this
Circuit’s pain standard. The court disagrees. For the reasons that follow, the court
finds that substantial evidence supports the ALJ’s conclusion that the pain standard
was not met.
“In order to establish a disability based on testimony of pain and other
symptoms, the claimant must satisfy two parts of a three-part test showing: (1)
evidence of an underlying medical condition; and (2) either (a) objective medical
evidence confirming the severity of the alleged pain; or (b) that the objectively
determined medical condition can reasonably be expected to give rise to the claimed
pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). The ALJ need not cite to the pain
standard so long as “his findings and discussion indicate that the standard was
applied.” Id. at 1225-26; see also Wallace v. Barnhart, 256 F. Supp. 2d 1360, 1377 n.9
(S.D. Fla. 2003) (finding that the ALJ properly applied the Eleventh Circuit’s pain
standard even though he did not cite or refer to the pain standard language as he cited
to 20 C.F.R. § 404.1529, “which contains the same language regarding the subjective
pain testimony that courts have interpreted when initially establishing the three-part
The pain standard is designed to be a threshold determination made prior to
considering Plaintiff’s credibility.” Reliford v. Barnhart, 444 F. Supp. 2d 1182, 1189
n.1 (N.D. Ala. 2006). Thus, “[i]f the pain standard is satisfied, the ALJ must consider
plaintiff’s subjective complaints.” James v. Barnhart, 261 F. Supp. 2d 1368, 1372
(S.D. Ala. 2003). In this instance, the ALJ may reject the claimant’s subjective
complaints but must articulate specific reasons for rejecting the testimony. Marbury
v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). If required, an ALJ’s credibility
determination need not cite particular phrases or formulations but it “must be so clear
as to amount to a specific credibility finding.” Tieniber v. Heckler, 720 F.2d 1251, 1255
(11th Cir. 1983).
The ALJ’s decision is far from a model of clarity. The ALJ does not directly
cite the pain standard language or the regulations containing similar phraseology.
But, his findings and discussion suggest to the court the pain standard was applied and
that he properly concluded that no objective evidence confirmed the severity of the
alleged pain or that no objectively determined condition could reasonably be expected
to give rise to the claimed pain. Based upon a review of the medical records and the
testimony of Dr. Winkler, the ALJ essentially concluded that there was “no objective
basis or evidence for [Plaintiff’s] assertions of pain.” [R. 26]. Although a claimant’s
subjective testimony supported by medical evidence that satisfies the pain standard is
sufficient to support a disability finding, see Foote v. Chater, 67 F.3d 1553, 1560 (11th
Cir. 1995) (emphasis added), here, the ALJ concluded that medical evidence did not
support claimant’s testimony, and therefore, she did not satisfy either part two or
three of the pain standard. In reaching this conclusion, the ALJ meticulously recited
Plaintiff’s treatment history before accepting Dr. Winkler’s testimony that Plaintiff
had no impairment or combination of impairments that meets or medically equals a
listing. [R. 24-28]. For example, the ALJ noted that Plaintiff saw Dr. Connor for low
back pain over the course of three years and that during this time: active and passive
range of motion in Plaintiff’s lower extremities was “consistently within functional
limits;” straight leg raising tests were consistently negative; muscle tone was
consistently within normal limits; lumbar flexion, extension, later bending and rotation
were never more than moderately decreased; and, manual muscle testing in the lower
extremities consistently produced findings of 4+/5 strength. [R. 24-25]. The ALJ
further noted that when Plaintiff reinitiated primary care with Dr. Ulrich in March
2006, she “had no complaints of pain at all” and that Dr. Ulrich’s examination was
“completely unremarkable” at that time. [R. 25].
The ALJ also discussed Dr. White’s treatment notes indicating negative
straight leg raise and no overt sensory or motor deficits. [R. 25]. Regarding Dr.
Ismail’s claims-related consultative examination, the ALJ rejected his opinions
concerning Plaintiff’s functional status in reaching his decision. However, he noted
that Dr. Ismail’s general findings that Plaintiff was able to sit and stand normally with
no assistance, had a normal gait, and could walk on heels and toes without restriction
were consistent with the findings of Plaintiff’s treating physicians. [R. 25]. The ALJ
further recalled that Dr. Maddox’s September 2006 examination notes referenced
negative straight leg raising and only some tenderness over the facet joints. [R. 25].
In addition to treatment and examination notes, the ALJ referred to various tests that
had produced “unremarkable” results. [R. 25]. Specifically, the ALJ noted various
MRIs, CT scans, lumbar myelograms, and epidurigrams that showed minimal
degenerative facet changes, good flow along the nerve root, and no acute
abnormalities. [R. 25].
The ALJ then credited Dr. Winkler’s testimony rejecting Dr. Ulrich’s apparent
suggestion that internal disc disruption from an annular tear and facet joint
arthropathy were the source of Plaintiff’s pain. [R. 26]. He further accepted Dr.
Winkler’s conclusion that Dr. Maddox’s impression that facet arthropathy was a
source of Plaintiff’s pain was hypothetical because the degenerative changes observed
occur in most individuals as they age. [R. 26].
Plaintiff contends that the ALJ relied almost exclusively on Dr. Winkler’s
testimony for his conclusion that Plaintiff is not disabled. [Pl.’s Mem. 6]. Plaintiff’s
argument on this point overlooks the extensive medical history recited above that the
ALJ included in his opinion. Plaintiff also maintains that “Dr. Winkler stated that the
nerve conduction study was identifying a basis of a portion of [Plaintiff’s] pain.”
[Pl.’s Mem. 7]. However, Plaintiff mischaracterizes Dr. Winkler’s testimony
concerning nerve conduction testing:
Dr. Winkler, the medical expert, then attempted to describe an objective
basis for the plaintiff's pain which apparently fell on deaf ears. [R. 551].
Dr. Winkler pointed to an EMG or a nerve conduction study contained
in the medical evidence of record and stated that it was positive or
abnormal for a condition called peripheral neuropathy.
[Pl.’s Mem. 7]. Dr. Winkler did discuss the diagnosis of peripheral neuropathy by Dr.
Ulrich. [R. 551]. Dr. Winkler explained that the test was not an EMG or nerve
conduction test, but rather a type of test, which is part of a class of tests called
quantitative sensory testing (“QST”). [R. 551]. Dr. Winkler was skeptical whether
this testing alone would be sufficient for a diagnosis of peripheral neuropathy. Dr.
Winkler testified about a paper published in the journal Neurology that was prepared
by the Therapeutics and Technical Committee of the American Academy of
Neurology. [R. 552]. Dr. Winkler testified that “one of its conclusions [was] that
there is limited evidence to suggest that quantitative sensory testing may be useful in
demonstrating altered threshold for pain perception in cases of various pain
syndromes.” [R. 552]. Dr. Winkler testified that the paper’s conclusion was that
“quantitative sensory testing results should not be the sole criteria utilized to diagnose
structural pathology in the nervous system.” [R. 552].
Plaintiff’s attorney questioned Dr. Winkler and asked about Dr. Ulrich’s
indication that she had polyneuropathy. The attorney asked Dr. Winkler whether he
believed Plaintiff had polyneuropathy. [R. 553] Dr. Winkler responded: “I don’t see
the evidence to support it, sir.” [R. 553]. The discussion of whether Plaintiff had
neuropathy and whether the type of testing upon which Dr. Ulrich relied would
support such a diagnosis continued for a number of pages in the transcript. Contrary
to Plaintiff’s insinuation, Dr. Winkler was not prevented from testifying about her
alleged peripheral neuropathy. Later in his testimony Dr. Winkler observed that the
QST itself indicated that “clinical correlation is recommended.”
[R. 556]. Dr.
Winkler explained that if such testing correlated with other clinical data, it might be
useful. However, Dr. Winkler again noted the absence of electromyography (EMG)
or nerve conduction studies (NCS), which are the standard tests used to identify
peripheral neuropathy. [R. 556]. Dr. Winkler explained that if a physician has a strong
suspicion that there is a disorder of the peripheral nerves, such testing would be
appropriate. [R. 556]. However, Dr. Winkler believed that those tests were not
indicated based upon Plaintiff’s treatment history: “I would point out that the
examination findings do not leave the strong suspicion of the involvement of
peripheral nerves because the neurologic examination findings recorded by the
examining physician, including Dr. Ulrich, [are] normal.” [R. 556].
Plaintiff asserts that Dr. Winkler was not allowed to fully explain the results of
the quantitative sensory testing:
Consequently, even though Dr. Winkler attempted to explain this to the
ALJ, the ALJ rejected his conclusions because it contained something of
an assessment of the plaintiff’s pain. This is the entire fallacy associated
with the conclusions of the ALJ. This is a pain case - simple and to the
point. Is there a legitimate medical basis for the plaintiff’s complaints of
pain? Dr. Winkler says yes; the electrodiagnostic testing says yes but the
ALJ says no.
[Pl.’s Mem. 8]. From the discussion above, it is clear to the court that Dr. Winkler
was not prevented from explaining Plaintiff’s nerve testing. It is also clear that Dr.
Winkler did not believe there was a legitimate medical basis for diagnosing Plaintiff
with peripheral neuropathy.
Plaintiff concludes her discussion of Dr. Winkler’s testimony by asserting:
“The ALJ’s own witness [Dr. Winkler] provided medical information that tends to
support the plaintiff’s allegations of disabling pain.” [Pl.’s Mem. At 8]. However,
this was exactly the opposite of the import of Dr. Winkler’s testimony. In the end, Dr.
Winkler was asked to “identify any restrictions in terms of functionally, exertional,
postural, or whatever, what if any they would be, or would there be none.” [R. 565].
Dr. Winkler responded: “On an objective basis, an objective basis for functional
limitation has not been established. So that the only limitation would derive from the
Claimant’s subjective complaints of pain and limitations resulting therefrom.” [R.
565]. Dr. Winkler ruled out both fibromyalgia and peripheral neuropathy as viable
diagnoses based upon the medical evidence. The ALJ relied upon Dr. Winkler’s
testimony to find that there was no objective basis or evidence of an underlying
condition to support the plaintiff’s allegations of disabling pain. Thus, the ALJ found
that Plaintiff had not established an underlying medical condition—the first prong of
the pain standard. Because he found Plaintiff had no medical condition causing
disabling pain, the ALJ implicitly determined Plaintiff had not satisfied the pain
standard; therefore, evaluation of her subjective complaints was not necessary. See
Reliford, 444 F. Supp. 2d at 1189 n.1.
The ALJ Did Not Limit Dr. Winkler’s Testimony
Plaintiff’s second argument is that the Commissioner’s decision should be
reversed and remanded for proper consideration because the ALJ erred by instructing
Dr. Winkler to “keep pain out of it” while discussing his opinion regarding whether
Plaintiff has an underlying medical condition and whether a basis exists for Plaintiff’s
subjective complaints of pain. [Pl.’s Mem. 12]. However, Plaintiff removes this
statement from its context within the hearing testimony, and is therefore mistaken.
The page of the hearing transcript Plaintiff cites contains a discussion in which the
ALJ asked Dr. Winkler to list the claimant’s severe medically-determinable
impairments. [R. 550]. Dr. Winkler responded that the “only impairment would be
a complaint of pain.” [R. 550]. The ALJ responded that pain would not constitute an
impairment. Dr. Winkler explained that he was considering a portion of Listing 1.00
that indicates pain may be an important factor contributing to functional loss. The
ALJ again asked Dr. Winkler:
“What are the severe medically-determinable
impairments?” Dr. Winkler asked whether this was “[o]n an objective basis . . . .”
The ALJ told Dr. Winkler that the presence of a medically-determinable impairment
must be on an objective basis. [R. 550]. Therefore, it is clear the ALJ was not asking
Dr. Winkler to eliminate pain as a consideration, but rather emphasizing that “a
complaint of pain” (which was the first impairment identified by Dr. Winkler) could
not be the medically-determinable impairment used to support Plaintiff’s pain
testimony. Contrary to Plaintiff’s assertion, Dr. Winkler was not instructed to
remove pain from his testimony altogether. Rather, the ALJ merely clarified the
standard against which Dr. Winkler should state his opinions. Accordingly, the ALJ’s
decision is not due to be reversed for Dr. Winkler’s failure to discuss Plaintiff’s pain.
Substantial Evidence Supports the ALJ’s Decision Not to Include
Peripheral Neuropathy as Severe Impairment
Plaintiff’s third and final argument on appeal is that the Commissioner’s
decision should be reversed and remanded for consideration of a “severe”
impairment not mentioned by the ALJ. [Pl.’s Mem. 13]. The court cannot agree.
Plaintiff contends that the “undisputed testimony from Dr. Winkler and the
evidence from the electrodiagnostic testing establish[es] that [she] suffers peripheral
neuropathy of the lower extremities.” [Pl.’s Mem. 13]. However, Plaintiff is
mistaken. First, Plaintiff misreads or misinterprets Dr. Winkler’s testimony regarding
the nerve conduction study. Contrary to Plaintiff’s assertion, Dr. Winkler testified
that based upon the results of that study, he did not find adequate support for a
neuropathy diagnosis. [R. 551, 553]. Moreover, Dr. Winkler testified that the test was
credible only to the extent that it was supported by other objective results. [R. 555556]. Specifically, Dr. Winkler stressed that the test report itself indicated that
“clinical correlation is recommended” to substantiate its findings. [R. 327; 555-56].
The ALJ referenced the nerve conduction study in his decision but credited Dr.
Winkler’s testimony regarding the need for further testing to confirm its conclusions.
The Eleventh Circuit has held that the severity of a claimant’s disability “must
be measured in terms of its effect upon ability to work, and not simply in terms of
deviation from purely medical standards or bodily perfection or normality.” McCruter
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). In one letter written to Plaintiff’s
attorney, Dr. Ulrich noted that Plaintiff could not work due to her pain. However, Dr.
Ulrich did not specifically mention neuropathy nor did he explain the impact of the
alleged neuropathy on Plaintiff’s ability to work. Moreover, as already discussed in
detail, Dr. Winkler rejected the neuropathy diagnosis and the ALJ provided specific
reasons for accepting this testimony and rejecting Dr. Ulrich’s conclusions.
Therefore, the court cannot say that Plaintiff met her burden of establishing that
neuropathy was a severe impairment. Alternatively, the court notes that the Eleventh
Circuit has recognized, albeit in an unpublished opinion, that “[n]othing requires that
the ALJ must identify, at step two all of the impairments that should be considered
severe” and that even if an ALJ errs by not recognizing every severe impairment, the
error is harmless if the ALJ finds at least one severe impairment. Heatly v. Comm’r of
Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010); see also Diorio v. Heckler, 721 F.2d
726, 728 (11th Cir. 1991) (applying the harmless error doctrine to social security
cases). Accordingly, even if the ALJ erred by failing to include neuropathy in his list
of severe impairments—which he did not—the failure to do so would amount to
harmless error. See Heatly, 382 F. App’x at 825. Therefore, the Commissioner’s
decision is not due to be reversed on this ground.
For the reasons stated above, the court concludes that the ALJ’s determination
that Plaintiff is not disabled is supported by substantial evidence and that proper legal
standards were applied. Accordingly, the Commissioner’s decision is due to be
affirmed. A separate order in accordance with this memorandum opinion will be
Done this 8th day of October 2013.
L. Scott Coogler
United States District Judge
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