Chambers v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 08/08/12. (CVA)

FILED
2012 Aug-08 PM 03:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
NICHOLAS S. CHAMBERS,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
5:11-cv-1373-AKK

MEMORANDUM OPINION
Plaintiff Nicholas S. Chambers (“Chambers”) brings this action pursuant to
sections 205(g) and 1631(c)(3) of the Social Security Act (“the Act”), 42 U.S.C.
§§ 405(g) and 1383(c)(3), 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 not supported by substantial evidence.
Therefore, for the reasons elaborated herein, the court will REVERSE and
REMAND the decision denying benefits to the ALJ for him to reach a disability
determination based on the complete medical record.

Page 1 of 25

I. Procedural History
Chambers filed his application for Title II disability insurance benefits
(“DIB”) and Title XVI Supplemental Security Income (“SSI”) on May 12, 2006,
alleging a disability onset date of March 12, 2005, due to affective/mood disorders
and back disorders (discogenic and degenerative). (R. 229-237). After the SSA
denied his applications on September 19, 2006, (R. 158-161), Chambers requested
a hearing on October 4, 2006, (R. 190), which he received on January 30, 2008,
(R. 125-157). On February 19, 2008, the ALJ found that Chambers had not been
under a disability “from March 12, 2005, through the date of this decision,” (R.
43-54); however, on March 10, 2008, Chambers requested review of the ALJ’s
decision, (R. 201), and the Appeals Council remanded the matter on August 8,
2008, requiring the ALJ to provide “a complete evaluation of the February 22,
2007 treating source opinion of Shelinder Aggarwal, M.D,” (R. 163-165).
Given the Appeals Council’s directive, Chambers requested a supplemental
hearing from the ALJ on May 28, 2009, (R. 215), which he received on June 15,
2009, (R. 99-124). Moreover, Chambers received a second supplemental hearing
on November 4, 2009, where the ALJ heard medical testimony and testimony from
a vocational expert (“VE”). (R. 62-98). At the time of this hearing, Chambers was
30 years old with a tenth grade education. (R. 66). The ALJ again denied
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Chambers’ claims on December 11, 2009, (R. 14-30), which became the final
decision of the Commissioner when the Appeals Council refused to grant review
on February 22, 2011, (R. 1-4). Chambers then filed this action on April 4, 2011,
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Doc. 1. On November 14, 2011,
the Clerk of Court reassigned this matter to the undersigned. Doc. 11.
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
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
Page 3 of 25

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.
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
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must determine in sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” 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).
IV. The ALJ’s Decision
The court turns now to the ALJ’s decision to ascertain whether Chambers is
correct that the ALJ committed reversible error. In that regard, the court notes
that, performing the five step analysis, the ALJ initially determined that Chambers
had not engaged in substantial gainful activity since his alleged onset date, March

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12, 2005, and therefore met Step One. (R. 17). Next, the ALJ found that
Chambers suffered from the following severe impairments: chronic low back pain
secondary to degenerative disk disease, spondylosis, herniated disk at L4-5, s/p
microdiskectomy at L4-5 on left (March 2005), and post failed back surgery
syndrome. Id. The ALJ then proceeded to the next step and found that Chambers
failed to satisfy Step Three because he “does not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments.” Id. 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:
[T]he claimant has the residual functional capacity to lift 15 pounds
occasionally and 10 pounds frequently; sit for six hours total out of an
eight-hour workday and for less than 45 minutes without the ability to
stand and stretch and sit back down; with usual customary breaks he
can stand four hours total out of an eight-hour workday and for less
than 30 minutes without the ability to sit down for 1-2 minutes or to
change that position; walk four hours total out of an eight-hour
workday and for no longer 30 minutes at time without the ability to
sit down for 1-2 minutes or to change that position; occasionally
manipulate stairs, kneel, and crouch (bending and keeping back
straight); he should avoid stairs, crawling, stooping (bending and
curving back), heavy vibratory machinery, unprotected heights, and
extreme cold exposure. He has unlimited use of the upper extremities
for fine and gross manipulation.
(R. 18). Moreover, in light of Chambers’ residual functional capacity (“RFC”),

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the ALJ held that Chambers is “unable to perform any past relevant work.” (R.
28). Lastly, in Step Five, the ALJ considered Chambers’ age, education, work
experience, and RFC, and determined that “there are jobs that exist in significant
numbers in the national economy that the claimant can perform.” Id. Because the
ALJ answered Step Five in the negative, the ALJ found that Chambers “has not
been under a disability, as defined in the Social Security Act, from March 12, 2005
through the date of this decision.” (R. 29). See also McDaniel, 800 F.2d at 1030.
V. Analysis
The court turns now to Chambers’ sole contention that the ALJ erred “in
rejecting every examining physician opinion of record as well as the State Agency
reviewing physician opinion in favor of the telephonic testimony of an orthopedist
(R. 25) whose limited contact with Plaintiff can be described as woeful by the
ALJ’s own standard.” Doc. 9, at 8. More specifically, Chambers contends that,
based on unsupported conclusions by the non-examining medical expert Dr. Alan
Levine, the ALJ improperly disregarded the objective medical evidence including
the opinions of treating and examining physicians Dr. S. Aggarwal, Dr. John Lary,
and Dr. Gilbert Aust. Id. at 7-9.
A.

Medical Evidence

As Chambers focuses specifically on the medical opinions of specific
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physicians, the court will address the record evidence for each pertinent physician
as well as other relevant medical evidence.
1.

Dr. Aggarwal

Chambers first presented to Dr. Aggarwal on October 19, 2006 for
evaluation and treatment regarding back pain after receiving back surgery in
March 2005. (R. 448). Dr. Aggarwal provided in the treatment notes that “[o]n
examination of the lower back there is a well-healed lower lumbar midline scar.
ROM is limited by 25% in all planes. There is moderate tenderness in the related
paraspinal muscles. SLR test is questionably positive on the left side.” (R. 449).
Additionally, Dr. Aggarwal found “Motor: 5/5 strength bilaterally[;] Sensation:
intact[;] Reflexes: 2+ bilaterally[;] Station & Gait: Pt is able to walk on heels and
toes and squat without difficulty.” Id. Accordingly, Dr. Aggarwal diagnosed
Chambers with “chronic low back pain due to arthritis and disc disease” and
“lumbosacral radiculitis.” (R. 450). Chambers visited Dr. Aggarwal again on
November 16, 2006 with “significant pain and not[ing] the medicines are not
lasting.” (R. 447). Dr. Aggarwal found that Chambers suffered from chronic low
back pain, increased certain pain medications, and stated that Chambers “appears
to be developing a chronic pain condition that is unlikely to improve. He will
likely be narcotic dependent. It is also my opinion that [Chambers’] medical
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condition at this time precludes him from gainful employment.” Id.
Chambers again presented to Dr. Aggarwal on December 12, 2006, and
“noted some benefit with the Methadone but is still having significant pain.” (R.
446). While Chambers maintained the same “neuromuscular exam” and “chronic
low back pain,” Dr. Aggarwal again increased Chambers’ pain medications. Id.
Two weeks later, on December 28, 2006, Dr. Aggarwal’s notes provide that
Chambers “called me last night as he had fallen because of weakness and pain in
his legs. He ended up going to Athens-Limestone emergency room but because of
the long wait he decided to follow up with me today. [Chambers] is having
increased falls . . . . He has been having more pain in his back and legs. He notes
the medicines are not holding him.” (R. 445). For this visit, Chambers’
“neuromuscular exam [was] unchanged” and Dr. Aggarwal again diagnosed
Chambers with “chronic low pack pain with recent aggravation due to fall.” Id.
On January 25, 2007, Chambers stated to Dr. Aggarwal that “Methadone and
Dilaudid are not working [and he voiced] concerned that his condition is not
improving.” (R. 454). As such, Dr. Aggarwal continued Chambers’ Soma
prescription but discontinued Methadone and Dilaudid, prescribing instead
Duragesic and Percocet. Id.
Chambers visited Dr. Aggarwal again on February 22, 2007 complaining of
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“breakthrough pain and not[ing] the Duragesic is not lasting.” (R. 453). Dr.
Aggarwal increased Chambers’ Duragesic prescription and also wrote a letter
describing Chambers’ status and functional limitations. (R. 452-453).
Specifically, Dr. Aggarwal provided that Chambers “should not lift greater than
10lbs; standing and walking 10 minutes at a time with a maximum of 1-2 hours
per day and sitting 30 minutes at a time with a maximum of 4 hours per day. It is
my opinion that Mr. Chambers is unable to work. I expect his condition to last for
at least 12 months, if not longer. It is my opinion he has chronic severe pain for
which he is receiving chronic narcotic management.” (R. 452). Finally, on May
17, 2007, Chambers presented sleeping difficulties to Dr. Aggarwal. (R. 468). Dr.
Aggarwal stated in the treatment notes that “I told [Chambers] he is already on a
significant amount of medications and I feel uncomfortable giving him more
medications . . . . [Chambers] should continue medications as previously
[prescribed] and follow up with me for re-evaluation in three months or sooner if
problems arise.” Id.
2.

Dr. Lary

Dr. John Lary originally examined Chambers on August 7, 2006 upon
request by the Disability Determination Service (“DDS”). (R. 389-399). As it
relates to the back examination, Dr. Lary stated: “No kyphosis is present. Back
Page 10 of 25

musculature appears normal to inspection and palpation. Is able to flex upper
body at waist 45 degrees but is unable to hyperextend to any degree. Straight leg
raising test is abnormal at 30 degrees bilaterally.” (R. 392). Dr. Lary also
provided that Chambers is “[a]ble to walk normally. Is able to heel walk and toe
walk. Is able to assume and arise from a squat position, but experiences pain on
doing so.” Id. As such, Dr. Lary diagnosed Chambers with post lumbar
laminectomy, lumbosacral facet syndrome, lumbar radiculopathy, left sacroiliac
joint dysfunction, depression, and controlled hypertension. (R. 393). And, Dr.
Lary concluded “[i]n my opinion, his ability to sit, stand, walk, lift, carry, bend,
squat, and reach is impaired by his chronic back pain. His ability to see, hear,
speak, understand, and manipulate small objects is unimpaired.” Id.
Dr. Lary again examined Chambers on June 5, 2009 at the request of the
DDS, (R. 544-553), and provided in the “History of Present Illness” that:
[Chambers’] chronic back pain has persisted and not gotten any
better. He has recently undergone another lumbar spine MRI scan,
dated January 7, 2009, [that] reportedly shows finding of a radial tear
in the left posterior-lateral aspect of his L4-5 disc – in the same left
lateral L4-5 region that experienced a disc herniation on his March
22, 2005 lumbar spine MRI. In addition, this recent MRI also shows
a new finding of generalized disc bulging that is beginning to affect
the right L4-5 neuroforaminal region. As yet, the claimant has not
experienced any radicular pain in his right hip or leg.
(R. 544). As it relates to Chambers’ general appearance, Dr. Lary noted that he sat
Page 11 of 25

“in a partially leaning back position with his body weight partially supported by
his arms, a position typically often assumed by patients with back pain from spinal
disorder.” (R. 545). Furthermore, Chambers “was fidgety and frequently shifted
his body weight from one buttocks to the other, also a typical finding in spine pain
patients,” and, finally, Chambers “did not sit for lon[g]er than about 10 minutes at
a time, and frequently arose and walked around in the exam room for a few steps –
also typical of patients with true back pain.” Id. Accordingly, Dr. Lary’s
summary “Discussion” maintained, in relevant part:
I agree with Dr. Aggarwal’s 2007 assessment and opinion that this
claimant should not lift more than 10 pounds or stand or walk for
longer than 10 minutes at a time (with a maximum of 1 to 2 hours per
day). While Dr. Aggarwal’s 2007 opinion that this claimant can sit
for up to 30 minutes at a time with a maximum of 4 hours per day
may have been accurate when he wrote it 2 1/2 years ago, I do not
believe that opinion is accurate today. In my opinion, Nicholas
Chambers cannot sit longer than 10 to 15 minutes at a time or sit for
longer than 1 to 2 hours per day. I agree with Dr. Aggarwal’s opinion
that the claimant is unable to work and that his condition will last for
12 months or longer (I believe it is likely permanent and will likely
get progressively worse as time goes on.) I do not believe that
physical therapy or treatment at a pain management clinic would
improve his functional limitations or make him employable.
(R. 548).
3.

Dr. Aust

On January 27, 2009, Dr. Gilbert M. Aust of The Orthopaedic Center also

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examined Chambers and reviewed his January 7, 2009 MRI from Valley Imaging.
(R. 555-556). Dr. Aust observed that Chambers “ambulated with a slight antalgic
gait. He was stooped over at the waist. He was tender to palpation to fine touch
all throughout the lumbar region . . . . He was tender into the bilateral sciatic
notches, the SI joints as well as the lumbosacral junction.” (R. 556). Dr. Aust
diagnosed Chambers with “symptomatic radial tear syndrome L4-5 status post L45 discectomy superimposed on degenerative disc disease” and “chronic pain.” Id.
Dr. Aust also stated that, to address Chambers’ back pain, “some form of fusion at
L4-5” is necessary, and “this was a very expensive undertaking especially for
someone not having health insurance. We recommended that he continue to try to
get on disability and once he is able to do this then we can see him back and talk
with him in more detail about a surgical procedure that would address the
underlying back pain.” Id.
4.

Dr. Jampala

Dr. Vijay Jampala of the Rheumatology and Arthritis Clinic P.C. examined
Chambers on January 22, 2009 and noted that “[g]ait is normal. He can walk on
heels, tip toes, can stand on one leg at a time. Romberg’s sign is normal. His
hand to nose coordination is normal. L.S. spine exam is diffusely tender, he can
flex, extend but with pain, there is [a] well healed surgical scar over the back in
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the midline. Motor function is normal in all muscle groups – 5/5.” (R. 482). Dr.
Jampala concluded that Chambers, who maintains a history of chronic low back
pain, “has a normal exam today[;] he has subjective pain but no objective findings
except he does have previous surgical scar from his back surgery. His peripheral
joint exam and musculoskeletal exam is completely normal.” Id.
In addition, Dr. Jampala found that Chambers could frequently lift and/or
carry 10 pounds and occasionally lift and/or carry up to 50 pounds, (R. 483), and
that Chambers could sit, stand, and walk 15 minutes at a time for a total of four
hours each in an eight hour workday, (R. 484). Also, Dr. Jampala determined that
Chambers could frequently climb stairs and ramps, climb ladders or scaffolds,
balance, stoop, kneel, crouch, and crawl. (R. 486).
5.

Dr. Levine

The ALJ requested Dr. Alan Levine to testify at the supplemental hearing to
resolve “conflicting evidence,” (R. 77)—presumably the inconsistency between
Dr. Jampala’s treatment notes and those of Dr. Aggarwal, Dr. Lary, and Dr. Aust.
Dr. Levine testified based solely on a review of Chambers’ medical records and
initially provided:
Dr. Hendricks, in March of ‘06 stated the low back pain was
exacerbated after riding a four-wheeler . . . . The onset was in March
of ‘05, some one year prior to that. And with the allegation of the
severity of pain and inability to function at pretty much any level,
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certainly riding a four-wheeler doesn’t fit with the allegation of
severity of limitations that we’ve heard and which is in the medical
record. Also Dr. Lary in 8/7/06 related that the claimant alleged to be
unable to dress himself, shower himself, and really function in any
way independently. Yet his examination showed a normal sensory
motor and reflex examination. Again, that doesn’t compute with his
total inability to do things and yet having in essence normal motor
sensory and reflexes.
(R. 80-81). Moreover, as it relates to Chambers’ RFC, Dr. Levine stated:
Dr. Lary in 6/5/09 stated that the claimant has severe impairments and
related that he felt that the claimant could only lift less than 10
pounds occasionally, could only stand or walk one or two out of eight
hours, and less than 10 minutes at a time. That he could only sit for
one to two hours, and less than 10 to 15 minutes at a time. This is
certainly in contrast to Dr. Jampala, date 1/22/09, in which he related
on examinations. And this certainly would [not] correlate with Dr.
Lary’s examination that the gait was normal, and motor sensory
reflexes were normal. Dr. Jampala, based on his examination, related
that he felt the claimant could lift frequently 10 pounds, and [lift]
occasionally 50 pounds. Felt that he could sit four out of eight
[hours], but less than 15 minutes. And related no restrictions
regarding activities of stairs, crawling, et cetera. This certainly is in
contradistinction to the severe limitations that Dr. Lary had given.
(R. 81). Finally, in attacking the opinions of Dr. Lary and Dr. Aggarwal, Dr.
Levine concluded:
In my opinion, the degree of the degeneration in the disk can, and
certainly does, produce some back pain. But the objective evidence
does not support the degree of alleged limitations that were noted by
claimant’s testimony, by Dr. Lary and by Dr. Aggarwal. And it seems
that they based their opinion primarily on the subjective statements of
the claimant without really weighing objective evidence of the motor
sensory and motor reflexes, and even normal gait. Also the idea of a
normal gait is certainly contradistinction to statements that the
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claimant is “unable to walk even short distances.”
(R. 81-82). Dr. Levine then announced the RFC ultimately adopted by the ALJ.
(R. 82). See infra.
6.

Other Medical Evidence

In addition to these physician reports, on March 13, 2005, Chambers
received a left sacroiliac injection at the Crestwood Medical Center, (R. 342), and
went to the Athens-Limestone Hospital’s emergency room on March 21, 2005 for
continued back pain, (R. 369-381). The next day, on March 22, 2005, Dr. Joe M.
Cannon with Valley Imaging Open MRI, Limestone Radiology Associates, P.C.
found that “[t]here is a central left paracentral disc herniation at L4-5. The exiting
neural foramina are not effaced but there is encroachment upon the lateral recess.
Correlate with level of radiculopathy.” (R. 443). Approximately one week later,
Dr. Calame Sammons performed a microdiskectomy to help relieve Chambers’
back pain. (R. 344-345). Chambers returned to Dr. Sammons on April 5, 2005,
“concerned about his incision and possibly some pus on the dressing. He is
complaining of weakness in his legs. He is still using a walker and hospital bed.
He is not sleeping at night.” (R. 346). Chambers subsequently presented to the
Tennessee Valley Pain Consultants on April 25, 2005, and Dr. Morris Scherlis
provided that Chambers “moves all extremities well, however, shows obvious
Page 16 of 25

facial grimaces with body position change. He does change body position quite
slowly and indicates that he is experiencing significant discomfort with change of
body position. He walks with a very guarded gait.” (R. 347-348). However,
Chambers refused the recommended clinical procedures and indicated no intention
to return to the pain clinic—“he says that he was getting stronger pain medications
from another source and does not wish to go back to Lortab 7.5mg. I have tried to
educate him that it is better to try and treat the pain at the source rather than treat it
with higher dosing of narcotics, however, he is unwilling to accept this.” (R. 349).
On May 4, 2005, Chambers returned to Dr. Sammons “complaining of
numbness in his leg . . . . He states that his pain is no different than it was before
surgery. He went to the pain center. He did not want to do an epidural steroid
because they would not give him sedation and he had a previous epidural without
sedation and this was too painful. He did not want to do pain management
because they had stated they were going to give him similar medicines.” (R. 350).
Dr. Sammons offered no other treatment alternatives for Chambers but rather
recommended that Chambers obtain a second opinion regarding his back pain. Id.
Perhaps in an attempt to receive this second opinion, Chambers visited Dr. Robert
B. Poczatek at Neurosurgical Associates, P.C. on June 17, 2005. Dr. Poczatek’s
“physical examination” states “patient’s trunk as well as bilateral lower
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extremities reveals some tenderness along the lumbar paraspinals as well as some
significant tenderness noted in the right SI joint. His SI joint pain is exacerbated
with Fabere’s maneuver . . . . There is full strength in the lower extremities.
Reflexes are present and equal throughout.” (R. 351-352). Dr. Poczatek
recommended electrodiagnostic studies of Chambers’ left lower extremity to
evaluate for a radicular component to his pain complaint, (R. 352); however, there
is no evidence that Chambers returned for the electrodiagnostic study or received
any other treatment with Dr. Poczatek.
Additionally on June 18, 2005, Dr. Cannon at Valley Imaging stated in his
treatment notes that:
Signal intensity within the lower thoracic and mid lumbar area is
normal down through L3-4. There is moderate disc desiccation at L45. The site of the previous surgery appears to be on the left at L5-S1
where there is thinning of the overlying soft tissues. Signal intensity
within L4-5 is decreased and there is some extra dural defect with a
generalized disc bulging. At L5-S1 there is a very minimal disc bulge
only. The neural foramina at L5-S1 are well preserved. There is
some enhancement at the site of the previous surgery on the left at
L5-S1. There is no evidence for a recurrent disc herniation. The mild
extra dural defect to the left appears to enhance consistent with
postoperative scarring on the left.
(R. 442). Similarly, Dr. Cannon’s “impression” of Chambers’ January 7, 2009
MRI—referenced by Dr. Aust—states “[l]ocal L4-5 disk disease with a left-sided
radial tear with focal mild posterior disk protrusion just to the left of midline. This
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protrusion is about 3 mm across.” (R. 549). Moreover, consistent with Dr.
Levine’s testimony, the treatment records from Dr. Earnest Hendrix establish that
on March 30, 2006, Chambers complained of back pain after riding a fourwheeler. (R. 432). Dr. Hendrix’s records further provide that on October 10, 2005,
Chambers “painted a room and now he has back pain.” (R. 434).
Finally, the medical evidence also demonstrates that Chambers presented to
the Athens-Limestone Hospital’s emergency room on May 4, 2008 with low back
pain that occurred after lifting his 27 pound daughter, and the hospital released
Chambers with no lifting greater than 5 pounds, and no twisting, turning, or
bending discharge instructions. (R. 455-458). Chambers again visited the
emergency room on January 5, 2009 for back and leg pain (R. 507-516), on
January 30, 2009 for a purported seizure where Chambers tested positive for
cannabinoids, (R. 502-506, 539), and on February 20, 2009 for back pain (R. 493501).
B.

The ALJ Improperly Considered the Medical Evidence of Record

While the ALJ may have properly refused to adopt Dr. Aggarwal and Dr.
Lary’s “disability” conclusions,1 the medical evidence fails to support the ALJ’s
1

The determination of “disability” under the Act is reserved for the Commissioner. Thus,
the Commissioner is “responsible for making the determination or decision about whether you
meet the statutory definition of disability. In so doing, [the Commissioner] review[s] all of the
medical findings and other evidence that support a medical source’s statement that you are
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RFC assessment. Generally, “[i]t is well-established that ‘the testimony of a
treating physician must be given substantial or considerable weight unless “good
cause” is shown to the contrary.’” Crawford v. Comm’r of Social Security, 363
F.3d 1155, 1159 (11th Cir. 2004) (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). The
Eleventh Circuit instructs that “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. Reversal is
warranted here because of the ALJ’s failure to articulate why he gave less weight
to the treating physician’s opinions.
After consistently treating Chambers for chronic back pain from October

disabled. A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not
mean that we will determine that you are disabled.” 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1).
See Bell v Bowen, 796 F.2d 1350, 1353-54 (11th Cir. 1986) (“The regulation in 20 C.F.R. §
404.1527 provides that although a claimant’s physician may state he is ‘disabled’ or ‘unable to
work’ the agency will nevertheless determine disability based upon the medical findings and
other evidence.”). And indeed, no “special significance” is given “to the source of an opinion on
issues reserved to the Commissioner described in” §§ 404.1527(d)(1) and 416.927(d)(1). 20
C.F.R. §§ 404.1527(d)(3), 416.927(d)(3).
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2006 until February 2007, Dr. Aggarwal opined that Chambers “should not lift
greater than 10lbs; standing and walking 10 minutes at a time with a maximum of
1-2 hours per day and sitting 30 minutes at a time with a maximum of 4 hours per
day.” (R. 452). Similarly, after examining Chambers on June 5, 2009—the most
recent examination—Dr. Lary stated that “I agree with Dr. Aggarwal’s 2007
assessment and opinion that [Chambers] should not lift more than 10 pounds or
stand or walk for longer than 10 minutes at a time (with a maximum of 1 to 2
hours per day).” Dr. Lary also provided that, “[w]hile Dr. Aggarwal’s 2007
opinion that this claimant can sit for up to 30 minutes at a time with a maximum of
4 hours per day may have been accurate when he wrote it 2 1/2 years ago, I do not
believe that opinion is accurate today. In my opinion, Nicholas Chambers cannot
sit longer than 10 to 15 minutes at a time or sit for longer than 1 to 2 hours per
day.” (R. 548). As it relates to Chambers’ functional abilities, examining
physician Dr. Jampala provided that Chambers could frequently lift and/or carry
10 pounds but could sit, stand, and walk 15 minutes at a time for a total of four
hours each in an eight hour workday. (R. 484). Finally, after visiting the
emergency room on May 4, 2008, the treating physician discharged Chambers
with no lifting greater than five pounds, and no twisting, turning, or bending

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discharge instructions. (R. 455-458).2
Despite this overwhelming evidence, nonetheless, the ALJ decided to adopt
Dr. Levine’s—the only non-examining and non-treating physician—recommended
RFC. This RFC included the capacity to “sit for six hours total out of an eighthour workday and for less than 45 minutes without the ability to stand and stretch
and sit back down; with usual customary breaks he can stand four hours total out
of an eight-hour workday and for less than 30 minutes without the ability to sit
down for 1-2 minutes or to change that position; walk four hours total out of an
eight-hour workday and for no longer [than] 30 minutes at a time without the
ability to sit down for 1-2 minutes or to change that position.” (R. 18). Put
succinctly, the ALJ found that Chambers could sit for 45 minutes at a time, stand
for 30 minutes at a time, and walk for 30 minutes at a time even though every
physician that actually examined Chambers offered more severe functional
limitations. Accordingly, the ALJ’s decision is not supported by the substantial
2

“Residual functional capacity assessment[:] Your impairment(s), and any related
symptoms, such as pain, may cause physical and mental limitations that affect what you can do in
a work setting. Your residual functional capacity is the most you can still do despite your
limitations. We will assess your residual functional capacity based on all the relevant evidence in
your case record . . . . When we assess your physical abilities, we first assess the nature and
extent of your physical limitations and then determine your residual functional capacity for work
activity on a regular and continuing basis. A limited ability to perform certain physical demands
of work activity, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other
physical functions (including manipulative or postural functions, such as reaching, handling,
stooping or crouching), may reduce your ability to do past work and other work.” 20 C.F.R. §§
404.1545(a)(1), (b); 20 C.F.R. §§ 416.945(a)(1), (b).
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evidence.
The ALJ and Dr. Levine meticulously attempt to discredit Dr. Aggarwal and
Dr. Lary because they claim that these physicians relied too heavily on Chambers’
subjective pain allegations and the fact that Chambers actually exhibited normal
gait and normal motor, reflex, and sensory functions. (R. 20-25, 80-82). Yet, the
ALJ fails to offer any evidence, medical or otherwise, as to why he adopted Dr.
Levine’s functional capacity assessment rather than the assessment of the
physicians examining Chambers. At the very least, the court cannot glean why the
ALJ failed to adopt the functional capacity assessment of Dr. Jampala—the
physician performing the consultive examination ordered by the ALJ. In other
words, after examining Chambers, Dr. Jampala still found that Chambers could
only sit, stand, or walk in 15 minute intervals; however, the ALJ disagreed and
determined, based on the report of Dr. Levine, that Chambers could sit for 45
minutes at a time, stand for 30 minutes at a time, and walk for 30 minutes at a
time. Perhaps most importantly, neither the ALJ nor Dr. Levine provided any
explanation for this increased functional capacity and specifically the increased
time intervals Chambers can withstand given his impairments—a needed analysis
when the ALJ favors the opinion of a non-examining / non-treating physician over
that of examining and treating physicians.
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Furthermore, the ALJ and Dr. Levine offer no explanation as to why a
“normal gait” or “normal motor, sensory, and reflex functions” necessarily
discredit the functional limitations exposed by Drs. Aggarwal, Lary, and Jampala.
This failure is significant because Dr. Aggarwal examined Chambers on at least
seven occasions including when he had fallen due to pain in his back and legs, and
Dr. Lary reviewed Chambers’ January 2009 spinal MRI which revealed increased
disc bulging and also witnessed Chambers shifting his weight while sitting and the
inability to sit for more than 10 minutes—both objective signs of back pain.
Indeed, Dr. Lary’s medical opinion appears consistent with Dr. Cannon’s
impression of the January 2009 MRI and with Dr. Aust’s recommended treatment.
These medical records by examining or treating physicians and the corresponding
functional assessments are not so inconsistent or unsupported by the record as a
whole to warrant giving more weight to the testimony of a non-treating and nonexamining physician—Dr. Levine.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination is
not based on substantial evidence. Therefore, the Commissioner’s final decision is
REVERSED and REMANDED for the ALJ to make a disability determination
based on the complete medical record. Upon remand, the ALJ is charged with
finding an RFC consistent with the medical record and record as a whole such that
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Chambers’ impairments are properly assessed. A separate order in accordance
with the memorandum of decision will be entered.

Done the 8th day of August, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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