Watkins v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 3/26/13. (SAC )

FILED
2013 Mar-26 AM 11:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ZADIE SANDIFER WATKINS,
Plaintiff
v.

MICHAEL J. ASTRUE,
Commissioner of the Social,
Security Administration
Defendant.

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CIVIL ACTION NO.
5: 11-cv-4261-KOB

MEMORANDUM OPINION
I. INTRODUCTION
On May 13, 2009, the claimant, Zadie Sandifer Watkins, applied for disability insurance
benefits under Title II of the Social Security Act (R. 126, 150-152) and supplemental security income
benefits under Title XVI of the Social Security Act (R. 128, 146-149). The claimant alleges disability
commencing on April 15, 2009 because of symptoms and limitations related to diabetes mellitus,
diabetic neuropathy, degenerative disc disease of the cervical and lumbar spine, and chronic and
severe pain. (R. 23). These applications were denied by the Commissioner of the Social Security
Administration on September 17, 2009. (R. 130-132). The claimant filed a timely request for a
hearing before an Administrative Law Judge, and the ALJ held a hearing on April 11, 2011. (R. 108).
In a decision dated May 13, 2011, the ALJ found that the claimant was not disabled as defined by
the Social Security Act and, thus, was ineligible for supplemental security income. (R. 27). On
October 21, 2011, the Appeals Council denied the claimant’s request for review; consequently, the

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ALJ’s decision became the final decision of the Commissioner of the Social Security Administration.
(R. 1-3). The claimant has exhausted her administrative remedies, and this court has jurisdiction
pursuant to 42 U.S.C. §§ 405(g) and 1383(c). For the reasons stated below, this court affirms the
decision of the Commissioner.
II. ISSUES PRESENTED
The claimant presents three issues: 1) whether the ALJ committed a reversible error when
he gave more weight to the state agency physician, Dr. Heilpern’s opinion, than the claimant’s
treating physician, Dr. Fail’s treatment note regarding the chiropractor’s ten pound weight restriction;
2) whether the ALJ properly applied the Eleventh Circuit’s pain standard in discrediting the
claimant’s subjective testimony of alleged severity of her pain and symptoms; and 3) whether the
ALJ properly determined the claimant’s residual functional capacity as light exertion level.
III. STANDARD OF REVIEW
The standard of review of the Commissioner’s decision is limited. This court must affirm the
Commissioner’s decision if the Commissioner applied the correct legal standards and if the factual
conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham v. Apfel, 129
F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence. “Substantial
evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
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The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look only
to those parts of the record that support the decision of the ALJ, but also must view the record in its
entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman
v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person
cannot “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 12 months.” 42 U.S.C. § 423(d)(1)(A). To
make this determination the Commissioner employs a five-step, sequential evaluation process:
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20 C.F.R. §§ 404.1520, 416.920.
In determining whether the claimant’s symptoms and impairments are severe enough to
require disability, the claimant bears the burden of providing medical and other evidence to prove
her alleged disability. 20 C.F.R.§§ 416.912(a), (c); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987) (citing 42 U.S.C. § 423(d)(5)(A)). In evaluating pain and other subjective complaints, the

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ALJ 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, 1125-26 (11th Cir. 2002);
20 C.F.R § 404.1529.
Additionally, a claimant’s daily activities may be considered in evaluating and discrediting
complaints of disabling pain. See Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996) (finding that
the ALJ may include recent work experience during the period of alleged disability in assessing the
claimant’s credibility).
Regarding medical evidence, the ALJ must give the opinions of the claimant’s treating
physicians substantial weight unless “good cause” exists against doing so. “Good cause” is found
when “the doctor’s opinion was not bolstered by the evidence, or where the evidence supported a
contrary finding” and also “where the doctor’s opinions were conclusory or inconsistent with their
own medical records.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
The Social Security Administration has clarified that in certain circumstances, the opinions
of the state agency physicians
may be entitled to greater weight than a treating source’s medical opinion if the State
agency medical [] consultant’s opinion is based on a review of a complete case record
that includes a medical report from a specialist in the individual’s particular
impairment which provides more detailed and comprehensive information than what
was available to the individual’s treating source.
SSR 96-6P 1996 WL 374180 (S.S.A., July 2, 1996).
Lastly, the Eleventh Circuit has established that although chiropractors’ opinions may be

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viewed as evidence, chiropractors are not medical sources and cannot be relied upon for
disabilities purposes. See 20 C.F.R. §§ 404.1513, 416.913; Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1160 (11th Cir. 2004).
V. FACTS
The claimant had a high school education with some college work and was fifty-seven years
old at the time of the administrative hearing in April, 2011. (R.113, 128). Her past work experience
includes employment as a certified nurse’s assistant, a day care worker, and a home health aide.
(R.118). The claimant originally alleged she was unable to work because of back pain, blurry vision,
and pain in her extremities; however, the claimant testified at the hearing that she has continued to
work at a day care at least through March, 2011. (R.118, 113-114).
Physical Limitations
On April 16, 2009, the claimant was admitted to Huntsville Hospital via the emergency room
with hyperemesis. While hospitalized, the claimant complained of numbness and tingling in her
extremities, and a neurologic evaluation diagnosed the claimant with diabetic neuropathy. During
her hospital stay on April 23, 2009, the claimant was diagnosed with new onset diabetes mellitus and
hyperlipidemia. Dr. Benjamin Steward Fail, MD, recommended a diet change and a follow-up with
a neurologist, and he prescribed the claimant regular insulin. (R. 280-81).
On June 10, 2009, Dr. Fail declined to perform an evaluation of the claimant for the purposes
of this disability claim. (R. 317).
On June 12, 2009, Dr. Steven W. Simpson, O.D., performed an eye examination on the
claimant, who complained of blurred vision. The examination determined that the claimant’s
uncorrected visual acuity was 20/400, with a best acuity being 20/30 and 20/50 in the right and left
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eyes, respectively. Dr. Simpson recommended that the claimant see an ophthalmologist to evaluate
her for cataracts and glaucoma. Dr. Simpson noted that the claimant refused to wear glasses after
he assured her that glasses would improve her vision. He further stated in his report that he did not
see any visual disturbance bad enough to cause disability. (R. 306).
On July 10, 2009, the claimant filled out a Function Report for the Social Security
Administration. The claimant stated that she lived alone in a house, fixed meals for herself, went
outside daily, drove her car, shopped for groceries and other necessities once a week, and went to
church almost every Sunday. The claimant complained of pain and difficulty in performing these
tasks, and indicated that her injuries affected lifting, squatting, bending, standing, reaching, walking,
sitting, kneeling, talking, stair climbing, seeing, memory, completing tasks, concentration,
understanding, and getting along with others. However, the claimant further indicated that she was
presently working at ARC, a service that helps people with intellectual or developmental disabilities,
in Madison County. (R. 235-42).
On August 25, 2009, Dr. Marlin D. Gill, MD, performed a consultative physical examination
of the claimant at the request of the Disability Determination Service. The claimant complained of
pain in her hands and feet, blurred vision, and low back pain. She claimed that these problems
increased with standing, walking, bending, and sitting in one position too long. Upon examination,
the claimant’s gait was normal and she could walk unassisted. Her arms exercised a full range of
motion with 5/5 strength bilaterally, and her grip had a strength of 4/5 bilaterally. Her legs were
normal and exercised 4/5 strength bilaterally, and the claimant was able to squat one-third of the way
down and return to standing. The claimant also complained of pain with lumbar movement and
tenderness of the feet. At the time of Dr. Gill’s examination, the claimant reported to working five
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days per week for six hours each day, caring for special needs people. She stated that she lived alone,
and was able to drive and shop by herself, but that she could only sit or stand for thirty minutes at
a time. (R. 318-19).
On September 14, 2009, Dr. Prem Kumar Gulati, MD, performed an x-ray on the claimant’s
lumbar spine at the request of the Disability Determination Service. The x-ray showed degenerative
disc disease at L5 S1. (R. 323-25).
On March 16, 2010, the claimant returned to Huntsville Hospital emergency room
complaining of back pain. (R. 353). Dr. Fail prescribed the claimant pain relievers and muscle
relaxers. (R. 355). The nurse’s notes from the claimant’s hospital visit indicated a steady gait but
mild discomfort. (R. 363-64).
On September 20, 2010, the claimant again entered the emergency room of Huntsville
Hospital after being involved in a motor vehicle accident. (R. 341). Upon admission, the claimant
had no significant swelling or tenderness in her extremities. (R. 343). An examination determined
that the claimant had osteophytosis from C5 to T1 and thoracic spondylosis. (R. 350).
Two days later, on September 22, 2010, the claimant went to Crestwood Medical Center
complaining of back pain, bilateral lower extremity pain, and aches and pains associated with the
recent motor vehicle accident. The lab tests showed no significant abnormalities, and the claimant
was discharged that day with prescriptions to reduce nausea and relieve moderate pain. (R. 376-77).
Upon discharge, the claimant denied any numbness or tingling and was able to move all four
extremities equally. (R. 380).
On November 3, 2010, the claimant returned to Dr. Fail complaining of back, neck, and leg
pain associated with the car accident. Dr. Fail recommended that the claimant continue to see a
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chiropractor, and also noted that the chiropractor restricted the claimant’s lifting capability to ten
pounds. (R. 404-405).
On November 11, 2010, the claimant saw Dr. Theodros Mengesha, MD, for further
evaluation and treatment following her motor vehicle accidence. Dr. Mengesha performed a
neurological evaluation of cervical radiculopathy. He noted that the claimant had low back surgery
in 1986 and that her back has improved since then. Dr. Mengesha also noted that the claimant had
normal gait and could walk on heels, toes, and flat without difficulty. Dr. Mengesha’s notes indicate
that the claimant was employed at the time of the appointment, but no further details exist as to
where she was employed. (R. 409-10). Based on his examination, Dr. Mengesha suspected that the
claimant was suffering from cervical radiculopathy and recommended MRIs of her cervical and
lumbar spine. After performing the recommended MRI, Dr. Mengesha’s report on November 30,
2010 concluded that the claimant’s cervical spine had multifocal degenerative changes and bilateral
neural foraminal narrowing, and that her lumbar spine also had degenerative changes with minimal
bilateral neural foraminal narrowing. A handwritten note on the final report indicates that the
claimant was referred to a neurosurgeon following her MRI. (R. 412-13).
On January 19, 2011, the claimant had a followup appointment with Dr. Mengesha. His
evaluation confirmed that the claimant was referred to, but had not yet seen, a neurosurgeon. Dr.
Mengesha’s examination showed 5/5 strength in all four extremities with normal muscle bulk and
tone and normal gait. The examination also showed a positive Spurling’s sign, which is the result
of an evaluation for cervical nerve root impingement that elicits radicular arm pain from lateral neck
rotation and axial compression. Dr. Mengesha determined that the claimant’s cervical radiculopathy
was from either degenerative disc disease of the spine or cervical spondylolisthesis. Dr. Mengesha
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advised the claimant to do neck exercises and see a neurosurgeon for potential surgery. (R. 406).
The ALJ Hearing
After the Commissioner denied the claimant’s request for supplemental security income, the
claimant requested and received a hearing before an ALJ. (R. 14). The hearing took place on April
11, 2011. (R. 110). The claimant testified that she was unable to work on a regular basis because of
her back, blurry eyesight, and pain associated with diabetes. (R. 118). She testified that the pain
extended to her neck, lower back, arms, legs, and also included headaches. The claimant further
testified that her hands sometimes felt arthritic and that she had trouble holding or lifting small
objects. (R. 120).
Regarding postural maneuvers, the claimant testified that she can sit for approximately
twenty minutes, stand for fifteen minutes, walk about the distance of a street block, and cannot bend.
The claimant testified that she spends most of the day lying on her back and resting. (R. 120-22).
The claimant indicated that she could make her own meals and can keep the house clean,
although with some pain associated. The claimant further testified that she was taking pain
medications that caused stomach bleeding. On a scale of zero to ten, the claimant stated that her
average pain is an eight. (R. 121-22).
Regarding recent employment, the claimant testified that she had been working at a daycare
facility full time until a month prior to the hearing. Her duties at the daycare included feeding,
changing, teaching, and playing with young children. The claimant testified that she stopped working
due to pain. The claimant’s other recent work experience included part-time work at other daycare
facilities and an elderly care service. (R. 113-15). The claimant also testified that she had previously
applied for unemployment benefits and workman’s compensation benefits. (R. 117).
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After reviewing the past relevant work of the claimant, the vocational expert, Patsy Bramlett,
first testified that the claimant’s job as a certified nurse’s assistant in a nursing home is medium,
semi-skilled work. Next, Ms. Bramlett stated that the claimant’s work as a day care worker was
deemed light, semi-skilled labor. Also, Ms. Bramlett testified that a home health aide or sitter with
the elderly is medium, lower semi-skilled work. When asked if any transferable skills existed, Ms.
Bramlett testified that no skills could transfer to sedentary work. (R. 118-19).
The ALJ then gave Ms. Bramlett two hypothetical situations to consider. First the ALJ asked
Ms. Bramlett to assume that the claimant was the same age as the actual claimant with the same
educational background and past work experience; had the capability to lift twenty pounds
occasionally and ten pounds frequently; could stand six of eight hours and walk six of eight hours;
occasionally could climb, balance, stoop, kneel, crouch, and crawl; and never could encounter ropes,
ladders, or scaffolds. Ms. Bramlett testified that while those limitations could not apply to a home
health aide or a certified nurse’s assistant, a teacher or day care worker could fit those limitations.
(R. 123-24).
The second hypothetical was the same as the first, but the individual would have to rest at
various times during the day, requiring absences from the work station. Also, the second hypothetical
gave the claimant sole discretion in the frequency and duration of the breaks. Furthermore, these
unscheduled breaks would occur on a daily basis. Ms. Bramlett testified that unscheduled breaks
would eliminate all jobs for the claimant. (R. 124).
The ALJ’s Decision
On May 13, 2011, the ALJ issued a decision finding that the claimant was not disabled under
the Social Security Act. (R. 27). First, the ALJ found that the claimant had not engaged in substantial
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gainful activity since the alleged onset of her disability. Next, the ALJ decided that the claimant’s
diabetes mellitus (type II), diabetic neuropathy, and degenerative disc disease (cervical and lumbar)
qualified as severe impairments. The ALJ found the claimant’s loss of visual acuity a non-severe
impairment. (R. 21-23).
The ALJ concluded that these impairments did not singly or in combination manifest the
specific signs and diagnostic findings required by the Listing of Impairments. Specifically,
concerning the claimant’s degenerative disc disease, the requirements of nerve root compression,
spinal arachnoiditis, or lumbar spinal stenosis were not found. Additionally, the claimant exhibited
5/5 strength in all four extremities with normal muscle bulk and tone and could walk unassisted.
Regarding the claimant’s type II diabetes, the ALJ found no evidence of significant or persistent
disorganization of motor function in her extremities resulting in sustained disturbance of gross and
dexterous movements, or gait and station. The ALJ also noted that the claimant has not been
diagnosed with acidosis or retinitis proliferans, and, therefore, does not meet the listing requirements.
Although already determined non-severe, the ALJ reviewed the claimant’s loss of visual
acuity under the requirements and concluded that at best correction, the claimant’s acuity does not
meet the requirement of 20/200 or worse. Because of these findings, the ALJ determined that the
claimant did not have an impairment or combination of impairments that meet the listed
impairments. (R. 23).
Next, the ALJ decided that the claimant has the residual functional capacity to perform light
work. The ALJ specifically stated that the claimant could lift or carry up to twenty pounds
occasionally and ten pounds frequently; sit, stand, or walk up to six hours per eight-hour workday;
never climb ropes, ladders, or scaffolds; occasionally may climb ramps and stairs, balance, stoop,
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kneel, crouch, and crawl; and never can be exposed to hazards.(R. 23-24).
The ALJ followed a two-step process in considering the claimant’s symptoms to establish
the claimant’s residual functional capacity. First, the ALJ examined whether an underlying medically
determinable physical or mental impairment(s) exists that reasonably could be expected to produce
the claimant’s pain or other symptoms, and found that the claimant’s diabetes, diabetic neuropathy,
and cervical and lumbar degenerative disc disease reasonably could be expected to cause the alleged
symptoms. Next, the ALJ evaluated the intensity, persistence, and limiting effects of the claimant’s
symptoms to determine the extent to limit the claimant’s functioning. During this process, the ALJ
found that the claimant’s symptoms were not substantiated by objective medical evidence, and,
therefore, considered the entire case record in determining credibility. (R. 24-5).
Because the claimant alleged that her diabetes, vision, back pain, and weakened extremities
limited her ability to work, the ALJ first assessed the claimant’s credibility. Although the ALJ
determined that the claimant’s impairments could reasonably be expected to cause the alleged
symptoms, the ALJ found that the claimant’s statements regarding the intensity, persistence, and
effective limitations of her symptoms were not credible in determining the residual functional
capacity. (R. 24).
The ALJ based his determination primarily on evidence of the claimant’s daily activities and
recent work experience. Although the claimant testified at the hearing that she spent most of the day
in bed due to her symptoms, the claimant’s Function Report from July of 2009 indicated that the
claimant lived alone and was able to prepare her own meals, drive, take medications, do laundry, and
go grocery shopping. The ALJ noted that the claimant did not indicate at the hearing that she could
no longer perform those activities. Additionally, the claimant’s medical record indicated that she was
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working five days per week for six hours each day in August of 2009 as a care giver for people with
special needs, and the claimant testified at the hearing that she was a daycare worker as recently as
March 2011. Based on the claimant’s daily activities and continued employment, the ALJ determined
that the claimant was capable of exerting herself at a level somewhat greater than what the claimant
had alleged at the hearing, discrediting the claimant’s subjective test of her limitations. (R. 24-25).
Besides considering the daily activities and recent employment, the ALJ also looked to the
claimant’s medical record as a whole to determine her residual functional capacity. The ALJ stated
that based on the claimant’s entire medical record, the claimant’s symptoms and limitations did not
justify a limit of sedentary work. For example, the ALJ noted that the claimant had not been
hospitalized for her condition since her initial diagnosis of diabetes. The ALJ indicated that
claimant’s degenerative disc disease and diabetic neuropathy also showed signs of improvement,
since the claimant’s gait was normal and she could walk unassisted as early as August of 2009. The
ALJ also noted that in 2009, claimant’s arms had full range of motion with 5/5 strength and a grip
strength of 4/5 bilaterally. Additionally, the ALJ considered that although the claimant had some
limited range of motion in her back and could only squat down one-third of the way down, her leg
strength was 4/5 bilaterally. (R. 25-26).
The ALJ noted that during the claimant’s most recent physical examination in January of
2011, she exhibited 5/5 strength in all four extremities with normal muscle bulk and tone and had
normal gait and coordination. The ALJ found that the entirety of the record showed that the claimant
can perform daily activities, work as a care giver, and maintain stable health conditions. The ALJ,
therefore, found that the claimant is capable of a higher residual functional capacity than the claimant
alleged. (R. 25-26).
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The ALJ next explained how he distributed the weight to opinions of the medical record.
First, the ALJ gave great weight to Dr. Simpson, the claimant’s optometrist who stated that the
claimant’s visual acuity was not bad enough to cause disability and also noted that the claimant
refused to wear eyeglasses. The ALJ gave Dr. Simpson’s opinion great weight because of his
specialty in the field, use of clinical diagnostic techniques, and personal examination of the claimant.
(R. 26).
The ALJ then considered the State agency medical consultant, Dr. Robert H. Heilpern. The
ALJ gave great weight to Dr. Heilpern’s opinion regarding exertional limitations. The ALJ
concluded that the claimant was capable of performing light work based on Dr. Heilpern’s thorough
review of the claimant’s physical examinations and x-rays. However, the ALJ gave less weight to
Dr. Heilpern’s finding that the claimant can never use ramps or stairs because the ALJ did not find
support for the finding in the record; therefore, the ALJ established that the claimant could
occasionally use ramps or stairs instead of never. The ALJ also disagreed with Dr. Heilpern’s
recommendation regarding the claimant’s ability to frequently balance, and, after finding no support
for the recommendation from an objective view of the record, gave the claimant a greater limitation
of occasionally balancing. (R. 26).
The ALJ found it significant that the claimant’s medical record did not include any indication
that the claimant was disabled or could not perform light work activity. Moreover, the claimant’s
medical record did not include any express opinions by her treating physicians, only progress notes
and results from medical evaluations. By specifically reviewing the notes made by Dr. Simpson, Dr.
Fail, Dr. Heilpern, Dr. Gill, and Dr. Mengesha, the ALJ determined that the claimant is capable of
performing light work with some specified limitations. (R. 26).
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VI. DISCUSSION
The claimant argues that the ALJ incorrectly gave more weight to the opinions of the state
agency physician, Dr. Heilpern, than the treatment note of the claimant’s treating physician, Dr. Fail,
and also alleges that the ALJ improperly determined that the claimant is capable of exerting a light
level of work. To the contrary, this court finds that the ALJ properly concluded that the claimant is
not disabled and can perform light work and that the substantial evidence supports his decision.
I.

The ALJ did not commit a reversible error when he gave significant weight to Dr.
Heilpern’s opinions but did not mention Dr. Fail’s treatment note regarding the
chiropractor’s ten pound weight restriction.
The claimant alleges that the ALJ used improper legal standards in weighing the evidence.

More specifically, the claimant argues that the ALJ did not give enough weight to her treating
physician’s note that limited the claimant to lifting ten pounds and instead incorrectly relied on the
opinions of the consulting state agency physician. The Eleventh Circuit has determined that “[t]he
opinion, diagnosis and medical evidence of the treating physician, especially when the consultation
has been over a considerable period of time, should be accorded considerable weight.” Chester v.
Bowen, 792 F.2d 129 (11th Cir. 1986).
However, in some instances the state agency physician may be given more weight than the
claimant’s treating physician. For example, the Social Security Administration clarified that “if the
State agency medical [] consultant’s opinion is based on a review of a complete case record that
includes a medical report from a specialist in the individual’s particular impairment which provides
more detailed and comprehensive information than what was available to the individual’s treating
source,” the state agency physician’s opinions may be weighed more substantially than the treating
physician’s. SSR 96-6P 1996 WL 374180 (S.S.A July 2, 1996). The state agency physician’s opinion
15

may also be preferred when “the opinion of a treating physician . . . is so brief and conclusory that
it lacks persuasive weight or where it is unsubstantiated by any clinical or laboratory findings” or
“when the evidence supports a contrary conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1240
(11th Cir. 1983); see also Kirkland v. Weinberger, 480 F.2d 46, 49 (5th Cir.), cert. denied, 414 U.S.
913 (1973).
In the case at hand, the ALJ gave significant weight to the opinions of the state agency
physician, Dr. Heilpern. While Dr. Heilpern was not a treating physician, he clearly cited and
discussed how he formed his opinions. The medical evidence Dr. Heilpern reviewed also was more
complete than any of the other doctors’ notes, since the evidence included the opinions, physical
examinations, and x-rays performed by Dr. Gill, Dr. Gulati, and Dr. Fail. (R. 327-28). As the
claimant’s treating physician, Dr. Fail did not review the claimant’s medical record in its entirety,
and actually declined to perform an examination of the claimant for the purposes of this disability
claim. (R. 317). Because Dr. Heilpern reviewed and cited the examinations of treating physicians
and specialists and, therefore, had a more complete overview of the claimant’s medical problems,
the ALJ correctly gave significant weight to Dr. Heilpern’s recommendations.
The ALJ did not rely fully on Dr. Heilpern’s recommendations though, as seen by the ALJ’s
final determination of the claimant’s residual functional capacity. Specifically, the ALJ disagreed
with Dr. Heilpern’s postural limitations, and subsequently determined less restrictive climbing
limitations but more restrictive balancing limitations, based on the evidence of the entire record. (R.
26). As seen by his final determination, the ALJ properly gave the state agency physician significant
weight because Dr. Heilpern had a more complete reading of the claimant’s medical record, but the
ALJ also properly disagreed with the state agency physician when the evidence as a whole supported
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contrary findings.
Although the ALJ did not refer specifically to the weight he gave Dr. Fail’s office note
regarding the chiropractor’s reported restriction of ten pounds, his failure to do so was not reversible
error. The relevant part of Dr. Fail’s handwritten progress note on November 3, 2010 simply states,
“chiropractor restricts to 10lbs.” (R. 405). The document that includes this information indicates that
it came only from the claimant’s chiropractor, and the record contains no indication that Dr. Fail
adopted that view or had any medical reason for agreeing with it. The ALJ is allowed to disregard
a treating physician’s statement when that statement is brief, conclusory, and unsubstantiated by
objective medical findings. Bloodsworth, 703 F.2d at 1240. In this instance, the note is a conclusory
opinion of a third party with no medical evidence provided to support the finding. Furthermore, the
chiropractor is unnamed and the medical record contained no original source from the claimant’s
chiropractor. The law has clearly established that while chiropractor’s opinions may be taken into
account, chiropractors are not medical sources and cannot be relied upon for disabilities purposes.
See 20 C.F.R. §§ 404.1513, 416.913; Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th
Cir. 2004).
The claimant alleges that the ALJ did not give proper weight to Dr. Fail’s recommendations
in general, but the only aspect of Dr. Fail’s medical evidence contrary to the ALJ’s determinations
is the progress note indicating a ten pound weight restriction from the claimant’s chiropractor.
Because only a handwritten progress note mentioned a weight restriction and the record does not
include medical evidence from the claimant’s chiropractor, the origin and accuracy of the statement
is unknown. Regardless of the uncertainty behind the meaning of the note, Dr. Fail did not expressly
adopt the chiropractor’s restriction and, therefore, the limitation is not Dr. Fail’s opinion. Thus, this
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court finds that the ALJ correctly disregarded Dr. Fail’s progress note regarding the stated weight
restriction because no medical evidence in the record supported such a restriction. The ALJ gave
correct weight to both the state agency physician and the claimant’s treating physician, applied the
correct legal standards, and substantial evidence supports his decision.
II.

The ALJ properly applied the Eleventh Circuit’s pain standard in discrediting the
claimant’s subjective testimony of alleged severity of her pain and symptoms.
The claimant argues that the ALJ improperly discredited the claimant’s testimony regarding

her alleged pain and limitations. Under the Eleventh Circuit’s pain standard, the ALJ must evaluate
pain and other subjective complaints by considering 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, 1125-26 (11th Cir. 2002); 20 C.F.R § 404.1529.
While the ALJ found that the claimant’s impairments could reasonably be expected to cause
the claimant’s symptoms, the ALJ concluded that the intensity and persistence appeared to be
exaggerated. (R. 25). The claimant’s testimony at the ALJ hearing supports the ALJ’s findings,
especially regarding the claimant’s recent work experience. Although the claimant testified that she
was unable to work on a regular basis because of her back, blurry eyesight, and pain associated with
diabetes, she also testified that she worked at a daycare facility full time until a month prior to the
hearing, where her duties included feeding, changing, teaching, and playing with young children. (R.
113-15, 118). Furthermore, the record indicates that the claimant lives in a house alone and is able

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to clean, do laundry, cook, shop, and drive. (R. 318). Based on the claimant’s recent employment
and daily lifestyle, the ALJ properly determined that the claimant is not disabled (R. 25).
The ALJ also assessed the claimant’s medical record as a whole and did not find sufficient
evidence to show that the claimant is incapable of performing light work. (R. 22-26). For instance,
the ALJ found Dr. Marlin Gill’s physical examination of the claimant in 2009 significant, because
Dr. Gill found that the claimant had a normal gait, could walk unassisted, had full range of motion
in her arms, and had 5/5 strength in her arms. The ALJ also considered Dr. Gill’s 2009 findings that
the claimant’s hands appeared normal and that she had a grip strength of 4/5 bilaterally. (R. 25).
The ALJ additionally took into account that at the claimant’s most recent doctor’s visit with
Dr. Mengesha in her medical record, dated January of 2011, she showed full 5/5 strength, normal
muscle bulk and tone, and normal gait and coordination. (R. 406). While no dispute exists about the
claimant having the severe impairments of diabetes (type II), degenerative disc disease, and diabetic
neuropathy, the medical record indicates that the claimant exhibited full arm and leg strength, no
recent hospital visits, and had generally improving conditions since 2009.
Moreover, the claimant’s medical record, recent work experience, and daily lifestyle, when
taken together, contradict the claimant’s subjective testimony. For example, the claimant alleged at
the ALJ hearing that she spent most of the day resting, could hardly walk to the refrigerator, and
could not lift anything with her hands. (R. 120-22). However, the claimant also testified at the
hearing that she was working at a daycare as recently as a month before the hearing where her duties
included feeding, teaching, and playing with young children as a full time job, which disproves the
claimant’s assertion that she spent most of the day in bed. (113-14). Additionally, the claimant’s
Function Report from July of 2009 indicated that she was capable of preparing meals of multiple
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courses for herself, discrediting her allegation that she could barely walk to the kitchen. (R. 237).
Finally, Dr. Mengesha’s findings in 2011 regarding the claimant’s full arm strength and 4/5 grip
strength contradict the claimant’s testimony about her inability to lift anything. (R. 406). These
discrepancies between the unremarkable medical findings and the claimant’s subjective testimony
further show that the ALJ properly applied the Eleventh Circuit’s pain standard in discrediting the
claimant. This court finds that substantial evidence exists to support the ALJ’s decision to discredit
the claimant’s subjective testimony.
III.

The ALJ properly determined the claimant’s residual functional capacity as light
exertion level.
Although the claimant alleges that the proper level of exertion is sedentary instead of light,

no evidence exists in the record to support such a finding, and the ALJ correctly determined the
claimant’s exertion level as light. Based on the claimant’s alleged symptoms and limitations alone,
her exertion level could have been determined sedentary; however, once the ALJ properly considered
and discounted Dr. Fail’s progress note mentioning a chiropractor’s weight restriction and also
discredited the claimant’s subjective testimony regarding her limitations, the remaining substantial
evidence as a whole supports the ALJ’s determination of a light exertion level.
“Substantial evidence is more than a scintilla, but less than a preponderance. It is such
relevant evidence as a reasonable person would accept as adequate to support a conclusion.”
Bloodsworth v. Heckler, 703 F.2d 1233,1239 (11th Cir. 1983) (citing Richardson v. Perales, 402
U.S. 389, 401 (1971). Because the court has already determined that the ALJ properly considered
the weight given to the claimant’s treating and consulting state agency physicians, and properly
discounted the claimant’s subjective testimony and Dr. Fail’s progress note, more than substantial

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evidence supports the light exertion level given by the ALJ.
VII. CONCLUSION
For the reasons as stated, this court concludes that the decision of the Commissioner is
supported by substantial evidence and is to be AFFIRMED.
A separate order will be entered in accordance with this Memorandum Opinion.
DONE and ORDERED this 26th day of March, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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