Hogsed v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 7/8/2015. (KAM, )

FILED
2015 Jul-08 PM 04:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LADYE GARRETT HOGSED,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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) Case No. 5:14-cv-00798-JEO
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MEMORANDUM OPINION
Plaintiff Ladye Garrett Hogsed brings this action pursuant to 42 U.S.C. §
405(g), seeking review of the final decision of the Commissioner of Social Security
(“Commissioner”) finding that she is not disabled under the Social Security Act.
(Doc. 1).1 The case has been assigned to the undersigned United States Magistrate
Judge pursuant to this court’s general order of reference. The parties have consented
to the jurisdiction of this court for disposition of this matter. (Doc. 5). See 28 U.S.C.
§ 636(c), FED. R. CIV. P. 73(a). Upon review of the record and the relevant law, the
undersigned finds that the Commissioner’s decision is due to be affirmed.

1

References herein to “Doc. ___” are to the electronic numbers at the top of each pleading
that are assigned by the Clerk of the Court.

I. PROCEDURAL HISTORY
Plaintiff filed for disability insurance benefits on September 29, 2010. (R. 77,
134-35).2 The application was initially denied by the State Agency. (R. 87-89).
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (R.
95-96). Plaintiff, her counsel and a vocational expert (“VE”) attended the hearing on
May 15, 2012. (R. 42-76). The ALJ issued a decision on August 13, 2012, finding
that Plaintiff was not entitled to benefits. (R. 21-41). The Appeals Council denied
Plaintiff’s request for review on February 27, 2014. (R. 1-7). On that date, the ALJ’s
decision became the final decision of the Commissioner. Plaintiff then filed this
action for judicial review under 42 U.S.C. § 405(g). (Doc. 1).
II. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of the court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct. 1420, 1422, 28 L.Ed.2d 842
(1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This court must
“scrutinize the record as a whole to determine if the decision reached is reasonable

2

References herein to “R. ___” are to the administrative record located at Document 3
(Answer of the Commissioner).
2

and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. It is “more
than a scintilla, but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991)
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.

The Regulations define being

“disabled” as “the inability to do 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
3

of not less than twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish
entitlement to disability benefits, a claimant must provide evidence of a “physical or
mental impairment” which “must result from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable clinical and
laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i-v) and 416.920(a)(4)(i-v). The
Commissioner must determine in sequence:
(1) Is the claimant presently unemployed;
(2) Is the claimant’s impairment severe;
(3) Does the claimant’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. pt. 404, subpt. P, app. 1 [the
“Listings”];
(4) Is the claimant unable to perform his or her former occupation;
(5) Is the claimant unable to perform any other work within the
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, at steps three and five,
to a finding of disability. A negative answer to any question, other than step three,
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leads to a determination of “not disabled.” Id.; see 20 C.F.R. §§ 404.1520 and
416.920.
IV. FINDINGS OF THE ALJ
Plaintiff was 54 years old at the time of the ALJ’s decision. (R. 36). She has
past relevant work experience as a pharmacy technician. (R. 36, 70). Plaintiff alleges
she has been unable to work since February 2, 2009, due to severe and chronic neck
pain which radiates into her right arm and hand, causing numbness, tingling, and
weakness; back pain, resulting in numbness and tingling in her right foot; fatigue;
daily headaches; hot flashes; depression; and anxiety. (R 28).
Following a hearing, the ALJ determined Plaintiff was “not disabled.” (R. 37).
The ALJ found that Plaintiff had severe impairments of osteoporosis; degenerative
disc disease of the cervical spine; depressive disorder; anxiety disorder; and
adjustment disorder.

(R. 26).

The ALJ also found that Plaintiff’s mental

impairments, whether considered singly or in combination, did not meet one of the
impairments listed in 20 CFR Part 404. (R. 27). The ALJ further found that Plaintiff
had the residual functional capacity (“RFC”) to perform light work with limitations.
(R. 28). Finally, the ALJ determined, premised on the testimony of the VE), that
Plaintiff could perform her past work as a pharmacy technician. (R. 36).

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V. DISCUSSION
Plaintiff claims the decision of the ALJ is due to be reversed and benefits
awarded to her or the decision remanded for “further proper consideration” because
the ALJ “failed to properly evaluate the opinion [evidence] from Plaintiff’s treating
physician, Dr. [Chad] Bradford.” (Doc. 8 at 9). The Commissioner argues that this
contention is without merit and that the ALJ’s assessment of the medical opinion
evidence is supported by substantial evidence. (Doc. 9 at 4-13).
A. Dr. Bradford’s Opinion
The record contains three relevant documents from Dr. Bradford. The first is
a letter dated April 19, 2011, noting that Plaintiff suffers from lumbago, degenerative
disc disease, osteoporosis, osteoarthrosis, bipolar disorder and depression. (R. 329).
In the letter, Dr. Bradford concludes, “Due to [Plaintiff’s] physical and psychological
conditions, I do not feel she is able to work and [is] in need of complete disability.”
(Id.) The second document is a “Clinical Assessment of Pain” form dated June 2,
2011. (R. 332-33). In the Clinical Assessment form, Dr. Bradford, selecting from
multiple-choice responses, states that Plaintiff had pain and that it was intractable and
“virtually incapacitating”; that physical activity would “[i]ncrease [her] pain to such
an extent that bed rest and/or medication is necessary;” that her pain and medicine
“side effects could be expected to severely limit her effectiveness due to distraction,
6

inattention, and drowsiness”; and “that previous treatments for her pain have been
temporary and ineffective.” (R. 34, 332-33). The third document is a “Medical
Source Opinion (Physical) (“MSO”)” form that is also dated June 2, 2011. (R. 33435). In the MSO, Dr. Bradford states that Plaintiff’s chronic pain limits her to
standing, walking, and sitting less than one hour in an 8-hour work day.3 (R. 334).
According to Dr. Bradford, she would need to lie down three times for thirty minutes
each during the work day. (Id.) She would only be able to lift five pounds
occasionally and carry two pounds occasionally. Other restrictions would include no
pushing and pulling with her right arm or right leg; no climbing, balancing, stooping,
kneeling, and reaching; occasional pushing and pulling with her left arm and leg; and
occasional crouching, crawling, fingering, and feeling. (Id.) Dr. Bradford also
concludes that Plaintiff should never be exposed to extreme cold or heat, be in

3

Plaintiff asserts that Dr. Bradford limited her to standing and walking less than ten
minutes a day and sitting less than 40 minutes per day. (Doc. 8 at 6). The Commissioner
counters that Dr. Bradford’s notations that Plaintiff could stand and walk for “‹1E” and sit for
“4E” indicates Plaintiff could stand for less than 1 hour and sit for 4 hours. (Doc. 9 at 11, n. 2).
The Commissioner also notes, without citation to any authority, “In the medical field, the degree
symbol (E) is used to represent hours, not minutes.” (Id.) Although the court could find no
authority supporting the use of the (E) symbol specifically in the medical field, it is aware of its
use in various scientific and engineering fields. See http://graphicdesign.stackexchange.com/
questions/27150/how-to-denote-time-is-it-ok-to-use-degree-and-prime-symbols (last visited July
2, 2015).
Elsewhere on the MSO, Dr. Bradford notes that Plaintiff should not be required to sit for
prolonged periods as she is “unable to recover fully after long periods of sitting or standing.” (R.
335).
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proximity to moving mechanical parts, work in high exposed places, or drive
automotive equipment. (R. 335). Plaintiff argues, “If given credible weight, the
opinion of Dr. Bradford would render Plaintiff incapable of performing work-related
activities due to the severity of [her] symptoms and limitations....” (Doc. 8 at 11).
B. Guiding Principles
The Commissioner is responsible “for making the determination or decision
about whether [a claimant] meet[s] the statutory definition of disability.” 20 C.F.R.
§ 404.1527(d)(1). Thus, “the Commissioner, not a claimant’s physician, is responsible
for determining whether a claimant is statutorily disabled.” Denomme v. Comm’r,
Soc. Sec., 518 F. App’x 875, 877 (11th Cir. 2013) (citing 20 C.F.R. §§
404.1527(d)(1), 416.927(d)(1)). Additionally, the regulations provide guidance on
the weight to be given to opinions from treating sources. “[T]he medical opinion of
a treating source is entitled to controlling weight if it ‘is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence’ in the record.” Szilvasi v. Comm’r, Soc. Sec., 555 F.
App’x 898, 900 (11th Cir. 2014) (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Similarly, the opinion of a treating physician is entitled to more weight than the
opinion of a non-treating physician. Ryan v. Heckler, 762 F.2d 939, 942 (11th Cir.
1986). The ALJ may reject any medical opinion if the evidence supports a contrary
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finding. Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987) (citing Sryock v.
Heckler, 764 F.2d 834, 835 (11th Cir. 1985)). However, the opinion of a treating
physician “must be given substantial or considerable weight unless ‘good cause’ is
shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)
(citing MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); Broughton v.
Heckles, 776 F.2d 960, 961-62 (11th Cir. 1985)). “Good cause” exists when the: (1)
treating physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records. Phillips v. Barnhart, 357 F.3d
1232, 1241 (11th Cir. 2004). When electing to disregard the opinion of a treating
physician, the ALJ must clearly articulate his or her reasons. Id.
C. Analysis
1. Dr. Bradford’s Opinion Was Not Bolstered by the Evidence
According to Dr. Bradford, Plaintiff cannot work because of her physical and
psychological conditions; because of her intractable and “virtually incapacitating”
pain; because her pain is exacerbated by physical activity; because her pain and
medicine “side effects could be expected to severely limit her effectiveness due to
distraction, inattention, and drowsiness”; because her “previous treatments for ... pain
have been temporary and ineffective”; and because her pain limits her ability to stand,
9

walk, and sit in an 8-hour work day. (R. 332-35). However, before the ALJ were
multiple reports and records from other doctors that do not support Dr. Bradford’s
conclusion that Plaintiff was completely disabled. Additionally, Dr. Bradford’s
opinions contain inconsistencies. Each point will be addressed separately below.
a. Other Evidence
First, the court notes that the opinions of Dr. Bradford, who is not a treating
specialist, are contrary to the treatment notes from Plaintiff’s treating specialists, Dr.
Steven Ganzel and Dr. Ki-Hon Lin. On January 27, 2010, approximately one year
after Plaintiff’s disability onset date in 2009, she saw Dr. Ganzel, a physical medicine
and rehabilitation specialist, with complaints of cervical pain. (R. 232). She reported
having intermittent right upper extremity pain over the last several years, which had
been successfully treated with medication. (Id.) She also reported that she was “very
active at the gym” and that approximately two weeks earlier she had experienced “a
new pain after a workout, ... located at the base of her neck and across the top of her
shoulders, right greater than left....” (Id.; see also R. 240 (“Pt. reports ... she thinks
she ‘overdid it’ at the gym”)). A January 29, 2010 MRI revealed “mild retrolisthesis
of C5 on C6 ... due to disc space narrowing,” which was described as advanced
degenerative disc disease. ( R. 230). The MRI also revealed “mild C4-5 and C6-7
degenerative disc disease.” (Id.)
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Plaintiff was referred to Dr. Lin for surgical consideration. (R. 236). Dr. Lin
determined that Plaintiff had displacement of her cervical intervertebral disc without
myelopathy and cervical radiculitis. He also found no focal motor deficits in her
upper extremities. (R. 238). He discussed Plaintiff’s treatment options with her,
including physical therapy (“PT”), medications, injections, and surgery. (Id.) He
ordered PT two times a week for six weeks and a prescription for prednisone.
Plaintiff was scheduled for a three week follow-up appointment. (R. 239).
Plaintiff began PT on February 8, 2010. She appears to have attended only six
sessions through March 2, 2010. The records show that her situation improved. The
February 10, 2010 PT notes state that Plaintiff reported that “her neck is feeling a
little better.” (R. 242). They also indicate that Plaintiff “tolerated treatment well.”
(Id.) The February 18, 2010 notes state that Plaintiff reported that “she is feeling
much better with decreased pain.” (R. 244). She again tolerated the treatment well
and had an increased range of motion. (Id.) The February 22, 2010 notes state that
Plaintiff was “not having the pain like she was.” (R. 246). She also denied any
increase in pain with exercise. (Id.) The February 24, 2010 notes provide that
Plaintiff reported that “she is feeling much better.” (R. 248). Additionally, they
reflect that she tolerated the treatment well. (Id.)
The February 25, 2010 notes from Plaintiff’s follow up examination by Dr.
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Ganzel state, in pertinent part:
Patient reports no pain today and denied tingling/numbness and
radiating pain. She states that PT has helped tremendously, and she now
is in a fully functional level and has no trouble sleeping. She states she
has not required any pain medications, and only takes Flexeril
occasionally.
(R. 250). His examination of Plaintiff revealed that she had normal contour of her
cervical spine; minimal right trapezial tenderness, no muscle spasms, no midline
tenderness, and no stepoffs; her range of motion was not limited; she had no focal
motor deficits in her upper extremities; her sensation was intact; and she had a
negative Spurling’s test.4 Plaintiff was scheduled for a follow up visit in six weeks.
(R. 251).
Plaintiff’s last PT session appears to have been on March 2, 2010. Plaintiff
reported that her neck was “bothering her some today.” (R. 252). The notes further
reflect that Plaintiff tolerated the treatment well and reported decreased pain. (Id.)
A follow up visit was scheduled. (Id.) There is no evidence Plaintiff returned for
further treatment. The ALJ properly concluded that the evidence demonstrated that
Plaintiff’s treatment was successful in improving her pain. (R. 30).
It is evident that Dr. Bradford’s statement are contrary to the notes of Drs.

4

Spurling’s test is an evaluation for cervical nerve root impingement. (See http://www.
medilexicon.com/medicaldictionary.php?t=908).
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Ganzel and Lin. In evaluating the inconsistencies, the undersigned recognizes that
their notes and the PT notes precede Dr. Bradford’s statements by over one year.
However, they constitute hard evidence that refutes Dr. Bradford’s conclusroy
statements. For instance, he states that Plaintiff’s pain is intractable and “virtually
incapacitating,” it is exacerbated by physical activity, and her previous treatments
have been temporary and ineffective. Each of these conclusions is refuted by the
foregoing medical notes and findings. The ALJ correctly found that Dr. Bradford’s
statements in the Clinical Assessment of Pain form were in conflict with the other
evidence and, therefore, due to be “given little weight.” (R. 34).
Dr. Ganzel’s findings are supported by other evidence, including Plaintiff’s
February 18, 2010, physical exam by her OBGYN doctor, Dr. Donna R. Graf, who
noted that Plaintiff was “well-developed,” “well-nourished,” and “in no apparent
distress.” (R. 354).5 On November 17, 2010, Plaintiff was examined by Dr. Bobby
Johnson at Endocrinology & Diabetes Association. He noted Plaintiff “still has
fatigue” which is an “associated symptom[]” of Plaintiff’s hypothyroidism.6 (R.

5

A March 12, 2010 note states that Plaintiff called concerning “stress and anxiety” (R.
354); however, it is not listed as debilitating.
6

Dr. John B. Abell’s notes from March 9, 2009, provide that Plaintiff complained of
“[e]xcess fatigue.” (R. 279). However, on May 7, 2009, he noted that while Plaintiff “still has
fatigue in the afternoons,” her “energy is much improved in the morning” and “her hot flashes
have resolved.” (R. 269).
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293). Plaintiff’s general exam results indicate nothing debilitating and the only
direction to Plaintiff was to stop taking “Armor Thyroid.” (R. 294). In a follow up
visit with Dr. Johnson on January 4, 2011, he noted that Plaintiff has “felt tired but
has had a lot of stress in her life with death and accidents to loved ones.” (R. 295).
Again, the general examination results listed nothing debilitating, and Dr. Johnson’s
directives only related to medications – not physical activities. (R. 296). There is no
evidence that Plaintiff returned to Dr. Johnson for further treatment. (R. 32).
Additionally, Dr. Bradford’s opinions are also inconsistent with the findings
of consultative examiner Dr. Yonus Ismail. On December 14, 2010, Dr. Ismail
examined Plaintiff. He noted Plaintiff’s chief complaint as neck and shoulder pain.
He observed that Plaintiff had a normal cervical spine with normal range of motion
and no spasms or deformity, intact gross and fine manipulation, and full grip strength
in her hands. (R. 303). His diagnosis listed chronic back and neck pain, degenerative
disc disease of [the] spine, osteoarthritis, osteoporosis, depression, anxiety,
hypothyroidism, and menopausal syndrome. (R. 304). He felt that occupational and
physical rehabilitation would benefit Plaintiff. (Id.) The ALJ gave “some weight”
to Dr. Ismail’s his findings, “as they are generally consistent with the medical
evidence of record.” (R. 34).
Dr. Mary Arnold, a licensed psychologist, conducted a consultative
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psychological examination of Plaintiff on December 28, 2010. Dr. Arnold noted that
Plaintiff “presents with history of opiate dependent pain” without surgery related to
“bone on bone herniated disks.” (R. 300). The ALJ credited the following findings
of Dr. Arnold because they were supported by the medical evidence of record:
The mental status portion of [Dr. Arnold’s report states] that [Plaintiff’s]
appearance was good and her behavior was appropriate; her mood was
subdued, but her affect was normal; her cognition and memory were
normal; her fund of information and abstract reasoning were good; and
her thought processing was good, with intellectual functioning estimated
to be in the average range. [Plaintiff] reported normal daily activities
including doing laundry; sharing cooking and cleaning with her
husband; and shopping for groceries and other needed items. She also
reported that she was able to drive an automobile, visit with family,
using a computer to access the internet, and watch “true life crime
shows” on television. She stated that she does not read as much as she
used to, due to problems with focusing. Dr. Arnold noted that [Plaintiff]
was not receiving mental health services, but she was driving 60+ miles
for treatment of her physical impairments. ... Dr. Arnold assessed
[Plaintiff as] having ... adjustment disorder ... and a Global Assessment
of Functioning (GAF) rating of 56.
(R. 33 (footnote omitted)). This evidence does not support Dr. Bradford’s finding
that Plaintiff is totally disabled and incapable of working.
Dr. Samuel Williams, a non-examining State agency psychiatric consultant,
also assessed Plaintiff’s mental status as of January 19, 2011. He notes in the
“activities of daily living” (“ADL”) section of his report that Plaintiff stated that after
prolonged use of her right hand/arm she had pain and headaches. (R. 317). Dr.

15

Williams also states Plaintiff “prepares simple meals; does light household chores;
goes out alone; drives; [and] shops.” (Id.) Additionally, while the report states
Plaintiff has “problems with concentration; does not do well with following
instructions; [and] does not do well at all with stress or changes in routine,” Dr.
Williams also notes that he found Plaintiff’s statements regarding her limitations only
“partially credible.” (Id.)
Further, in a January 25, 2011 Mental Residual Functional Capacity
Assessment review, Dr. Williams gave Plaintiff no mark lower than “Moderately
Limited” in any functional category. (R. 319–22). In addition, he found that Plaintiff
was “capable of understanding, remembering, and carrying out simple instructions
over [an] 8 hour work day with routine breaks,” and “can concentrate for 2 hour
periods.” (R. 321). He also noted that Plaintiff could have contact with coworkers,
supervisors, and the general public in a “casual and nonconfrontational” environment
and that changes in her work place could be made if “introduced slowly.” (R. 321).
Thus, Dr. Bradford’s opinion that due to Plaintiff’s physical and psychological
conditions, she is unable to work and in need of complete disability is not supported
by the other evidence in the record. The ALJ correctly weighed his statements as
compared to the other medical evidence.

16

b. The Evidence Supported a Contrary Finding
There was substantial evidence that Plaintiff could perform her prior
occupation or, alternatively, perform other work within the national economy. As
discussed above, there were no other medical findings of complete disability or
extreme debilitating disease. Furthermore, “[t]here are two avenues by which the
ALJ may determine whether the claimant has the ability to adjust to other work in the
national economy. The first is by applying the Medical Vocational Guidelines.
Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). The other “is by the use
of a vocational expert.” Id. at 1240. In order for a vocational expert’s (“VE”)
testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments. Wilson v. Barnhart, 284
F.3d 1219, 1227 (11th Cir. 2002); Jones v. Apfel, 190 F.3d 1224, 1229 (11th
Cir.1999).
A VE testified during Plaintiff’s hearing. The ALJ posed four hypothetical
situations to the VE. In the first hypothetical, the ALJ asked the VE to consider a
person of Plaintiff’s education, training, and past work experience who is “limited to
a maximum of a light range of work” as defined by the regulations. (R. 71). The VE
opined that a pharmacy technician “should be an option.” (R. 71).
In the second hypothetical, the ALJ carried over the hypothetical person’s
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education, training, and past work experience, but added that this person would be
“limited to understanding and carrying out simple instructions; need to [have] only
occasional, non-intensive interaction with coworkers and the general public; and he
would be able to concentrate and remain on-task two hours at a time sufficient to
complete an eight-hour work day.” (R. 71). The VE answered affirmatively that this
person could work as a pharmacy technician. (R. 72).
In a third hypothetical, the ALJ further limited the individual in standing and
walking by needing to sit or stand one or two minutes, i.e. change positions, every
hour in a work day. (R. 72). Here, the VE answered that these conditions would not
be suitable in regards to Plaintiff’s past relevant work (R. 72), but did answer that
jobs such as a cafeteria cashier, ticket taker, or surveillance system monitor would
accommodate a person with these limitations. (R. 73).
In a fourth hypothetical, the ALJ added the limitation the worker “would be
expected to needing to miss work on average two days a month on a consistent basis.”
Only here did the VE opine that there would be no jobs to accommodate this
limitation because it would not be tolerated. (R. 73).
Thus, by posing appropriate hypothetical questions to the VE, the ALJ properly
determined Plaintiff was able to perform her former occupation of pharmacy
technician or perform other work in the economy, and therefore she was “not
18

disabled.”
c. Bradford’s Opinion Was Conclusory
The ALJ stated that she gave no weight to Dr. Bradford’s letter opining that
Plaintiff was unable to work, because the opinion was conclusory on a matter
reserved to the Commissioner. (R. 34). The Social Security regulations provide that
“[w]e are responsible for making the determination or decision about whether you
meet the statutory definition of disability.... 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). See also 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.”).
Plaintiff argues that the ALJ’s decision was not based on substantial evidence,
because the ALJ failed to contact Dr. Bradford to clarify his conclusions about her
impairments. (Doc. 8 at 12). Plaintiff’s argument is misplaced. 20 C.F.R. §
404.1520(b) states that the ALJ “may contact your treating physician, psychologist,
or other medical source” when “the evidence is consistent but we have insufficient
evidence to determine whether you are disabled.” 20 C.F.R. § 404.1520(b). See also
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Sellers v. Colvin, No. 5:13-cv-610-SLB, 2014 WL 4197402, at *3 (N.D. Ala. Aug.
18, 2014).
Here, as noted above, the medical evidence was sufficient to determine whether
or not Plaintiff was disabled. The ALJ considered Dr. Bradford’s statements in the
context of the entire record. There was no need to further contact Dr. Bradford.
2. Dr. Bradford’s Statements Were Inconsistent With His Records
Dr. Bradford’s statement that “[d]ue to Plaintiff’s physical and psychological
conditions, I do not feel she is able to work and in need of complete disability,” dated
April 19, 2011, is inconsistent with his medical notes regarding Plaintiff’s physical
and/or psychological condition. He never used terms such as “disabled” or “unable
to perform” in his physical examinations of Plaintiff. To the contrary, his notes
reflect terms such as “normal,” “moderate,” and “unremarkable” when describing
Plaintiff’s physical condition.
a. Plaintiff's Visits Before the April 19th Letter
Plaintiff had two recorded appointments with Dr. Bradford prior to the date of
his letter. The first was on June 9, 2010, and the other was September 20, 2010. In
notes from her June 9, 2010 visit under the History of Present Illness (“HPI”) section,
the purpose of the visit is described as an initial visit to establish care. (R. 290, 349).
Most remarkably, the notes state, “[Plaintiff] is doing well.” (R. 290, 394). Also,
20

while the notes record that the Plaintiff is “taking some chronic steroids for what
sounds like adrenal fatigue,” they also note Dr. Bradford’s observation that “she is
very healthy overall and does well with this.” (R. 290, 349). Further, in the Review
of Systems (“ROS”) section,7 Dr. Bradford notes Plaintiff as having “arthralgia” and
“back pain.” (R. 290, 349). Under the heading of “General,” he notes that Plaintiff’s
condition was “unremarkable with exception of HPI.”8 (R. 290, 349). His “General
Exam” notes state that Plaintiff’s general condition is “normal” and that she “appears
younger than [her] stated age.” (R 291, 350).
Dr. Bradford’s September 20, 2010 notes reflect Plaintiff’s HPI as “Sinusitis.”
(R. 288, 347). The notes further state that Plaintiff reported being “affected by
allergies and having exposure to others with [the] same symptoms.” (Id.) Again,
under the ROS section, Plaintiff’s general condition is noted as “unremarkable with
exception of HPI.” (R. 288, 347). Also, Dr. Bradford’s General Exam notes list
Plaintiff’s general condition as “normal.” (R. 289, 348).

7

“The review of systems (or symptoms) is a list of questions, arranged by organ system,
designed to uncover dysfunction and disease.” A Practical Guide to Clinical Medicine,
hhtp://meded.usced.edu/clinicalmed/ros.htm (last visited July 2, 2015).
8

“HPI” generally is the abbreviation for history of the present illness. See hhtp://www.
allacronyms.com/_medical/HPI/H (last visited July 2, 2015).
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b. Records of Visits After Dr. Bradford’s April 19th Letter
After the April 19th letter, Plaintiff was seen by Dr. Bradford six times. In Dr.
Bradford’s June 2, 2011 notes he records Plaintiff’s HPI as “Headache.” (R. 340,
345).

The notes further state that Plaintiff reported the pain to be “acute,”

“dull/aching,” and “sharp/stabbing,” and that she rated the pain as a “9 out of 10.”
The notes also reflect that she stated, “Intensity is ... moderate.” (R. 340, 345).
Additionally, the ROS section notes Plaintiff’s general condition as “unremarkable
with exception of HPI.” (R. 340, 345). Under the General Exam section, the notes
record Plaintiff’s condition as “normal” and that she “appears younger than stated
age.” (R. 341, 346).
The July 12, 2011 notes reflect Plaintiff’s HPI as “Anxiety.” (R. 338, 343).
The duration of the anxiety is reported as “acute” and “worsening,” especially in
regard to “significant life events.” However, the notes also state, “Intensity is
reported as moderate.” (R. 338, 343). Again, the ROS notes record Plaintiff’s
general state as “unremarkable with exception of HPI.” (R. 338, 343). Also, while
it is reported in the General Exam section that Plaintiff was “crying on exam with lots
of anxiety,” it is also noted that Plaintiff’s state was “normal.” (R. 339, 343).
The February 7, 2012 notes reflect the HPI as “Neck Pain” that is “generalized,
in the bilateral cervical region, and in the right shoulder region.” (R. 414). The notes
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further state Plaintiff described the pain as “aching” and the duration as “continuous
and acute.” (R. 414). Plaintiff reported the “symptoms worsen with activities of daily
life” such as “lifting, overhead activity, twisting, and working on computers.” (R.
414). Additionally, Plaintiff reported the intensity as “severe” and “7-8/10 with
worsening headaches.” (R. 414). Dr. Bradford concluded, “Symptoms appear to be
worsening.” (R. 414). Associated symptoms are listed as “fatigue, headache, joint
pain (multiple sites), numbness in arm, numbness in hand, numbness in leg, radiating
pain, shoulder pain, sleep disturbances, and weakness in arm.” (R. 414). Dr.
Bradford notes that Plaintiff “does have some weakness in her right arm and
numbness ... in her distal arm and legs.” (R. 414). Additionally, the notes record that
Plaintiff reported “symptoms improve with pain medications.” (R. 414). Further, Dr.
Bradford’s ROS notes record that Plaintiff’s general exam was “unremarkable with
exception of HPI.” (R. 414). His General Exam notes record Plaintiff as being
“tired” but “in moderate pain.” (R. 415). Plaintiff was diagnosed with idiopathic
peripheral neuropathy. (Id.)
On March 1, 2012, Dr. Bradford notes Plaintiff’s HPI as “Fatigue.” (R. 422).
While the notes record Plaintiff’s report that the “symptoms do not improve with rest”
and “worsen with activity,” they also record Plaintiff as stating the intensity as
“moderate.” (R. 422). Again, Dr. Bradford’s ROS assessment describes Plaintiff’s
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general condition as “unremarkable with exception of HPI” and the General Exam
notes state she was “tired and in moderate pain.” (R. 423). He did note, however,
associated symptoms of “constipation, depression, dizziness, headache, insomnia,
joint pain/arthralgia, joint swelling, and stress.” (Id.)
On April 12, 2012, Dr. Bradford notes Plaintiff’s HPI as “Neck Pain” that is
“generalized, in the bilateral cervical region, and in the right shoulder region.” (R.
419). Plaintiff described the pain as “aching” and the duration of the pain as
“continuous and acute.” (R. 419). Plaintiff reported “symptoms worsen with
activities of daily life” such as “lifting, overhead activity, twisting, and working on
computers.” (R. 419). Additionally, Plaintiff reported the intensity as “severe” and
“7-8/10 with worsening headaches.” (R. 414). Dr. Bradford noted, “Symptoms
appear to be worsening.” (R. 419). Listed associated symptoms include “fatigue,
headache, joint pain (multiple sites), numbness in arm, numbness in hand, numbness
in leg, radiating pain, shoulder pain, sleep disturbances, and weakness in arm.” (R.
419). Again, as in the February 2, 2012 notes, Dr. Bradford recorded his observation
that Plaintiff “does have some weakness in her right arm and numbness ... in her distal
arm and legs.” (R. 419). Additionally, Plaintiff reported “symptoms improve with
pain medications.” (R. 419). Dr. Bradford’s ROS notes record that Plaintiff’s general
exam was “unremarkable with exception of HPI.” (R. 419). And his General Exam
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notes record that Plaintiff was “tired and in moderate pain.” (R. 420).
Finally, on October 1, 2012, Dr. Bradford notes during a “recheck” that
Plaintiff has continued pain in the cervical and right shoulder region. (R. 463). The
pain was described as continuous and worsening with daily activities. Associated
symptoms listed include joint pain, numbness and weakness in the hands, arms and
legs. (Id.)
The ALJ reasonably rejected Dr. Bradford’s opinions in view of the fact that
his treatment notes – particularly those preceding the opinions – do not support his
statements. They contain inconsistencies and are not supported by diagnostic test
results. As noted by the ALJ, his conclusions depend significantly upon Plaintiff’s
subjective complaints. The ALJ’s example is instructive:
For example, except for some slight loss of strength in [Plaintiff’s] right
grip and induction, and slight atrophy of the right trapezius, every
physical examination he performed resulted in normal findings, and on
numerous visits [Plaintiff] reported that she had been previously
diagnosed and treated with specific medications for symptoms that she
reported, which appears to be the only basis upon which Dr. Bradford
relied in making his own diagnoses and plan of treatment.
(R. 35). In sum, the ALJ did all she was required to do in this instance and her
determination is supported by substantial evidence. See Snow v. Colvin, 8 F. Supp.
3d 1345, 1353 (N.D. Ala. 2014) (“Here, the ALJ gave little weight to Dr. Goff’s
opinion because it was inconsistent with the rest of the record.[] That is all the law
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requires him to do.”).
Finally, to the extent that Plaintiff complains that the ALJ failed to address Dr.
Bradford’s MSO, the court is not impressed. (Doc. 8 at 13). While the ALJ’s
decision does not specifically address the MSO, the court finds that failure to be
harmless. The ALJ specifically discussed Dr. Bradford’s statements in his April 19,
2011 letter (R. 329) and the associated Clinical Assessment of Pain form (R. 332-33).
Dr. Bradford explained in the MSO that Plaintiff’s limitations were due to her
radiating arm, shoulder, and back pain, which is exactly what the ALJ addressed in
her decision. (R. 28-35). Thus, the failure to specifically address the MSO is
harmless. Newberry v. Comm’r of Soc. Sec., 572 F. App’x 671, 672 (11th Cir. 2014)
(“even if the ALJ erroneously failed to explicitly assign weight to and discuss every
aspect of Dr. Giron’s opinion, this error was harmless because it is still clear that the
ALJ’s rejection of the portions of Dr. Giron’s opinion that are inconsistent with the
ALJ’s ultimate conclusion was based on substantial evidence”).
VI. CONCLUSION
For the reasons set forth above, the undersigned concludes that the decision of
the Commissioner is due to be AFFIRMED. A separate order in accordance with the
memorandum opinion will be entered.

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DATED, this the 8th day of July, 2015.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

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