Baker v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/27/2018. (AFS)
2018 Sep-27 AM 09:40
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
TINA MARIE BAKER,
NANCY A. BERRYHILL, Acting
Commissioner of the United States
Social Security Administration
Civil Action Number
Tina Baker brings this action pursuant to Section 405(g) of the Social
Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the final adverse
decision of the Commissioner of the Social Security Administration (“SSA”). The
court finds that the Administrative Law Judge’s (“ALJ”) and the Appeals
Council’s decisions—which have become the decision of the Commissioner—are
supported by substantial evidence. Therefore, the court AFFIRMS the decision
I. PROCEDURAL HISTORY
On October 11, 2014, Baker filed an application for a period of disability
and disability insurance benefits (DIB), alleging a disability beginning on August
9, 2013. R. 228-29. After the denial of her application, R. 153, Baker filed another
application for a period of disability and DIB. R. 230-33. When this application
was also denied, R. 176-80, Baker requested a hearing before an ALJ. R. 181-82.
After a hearing, the ALJ denied Baker’s application, finding that Baker was not
disabled under the Act. R. 118-44, 84-101. This became the final decision of the
Commissioner when the Appeals Council refused to grant review. R. 4-7. Baker
then filed this action pursuant to § 405(g) of the Act, 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 this court is to determine whether the decision of
the Commissioner is supported by substantial evidence and whether proper legal
standards were applied. See Richardson v. Perales, 402 U.S. 389, 390 (1971);
Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). Substantial evidence
falls somewhere between a scintilla and a preponderance of evidence, and this
court must “scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983) (citations omitted).
The ALJ's decision is
supported by substantial evidence if it is based on “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v.
Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)).
If supported by substantial evidence, the Commissioner’s factual findings
if the evidence
Commissioner’s findings. . . .” Id. (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)). The ALJ’s legal conclusions, however, are reviewed 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). While the court acknowledges that judicial review of the ALJ’s
findings is limited in scope, the court also notes that review “does not yield
automatic affirmance.” Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). 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 the proper legal
analysis has been conducted, the ALJ’s decision must be reversed. See Cornelius
v. Sullivan, 936 F.2d 1143, 1145–46 (11th Cir. 1991).
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)(I)(A). 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). The
disability must have begun on or before the date that the individual was last
insured for disability benefits. 42 U.S.C. § 423 (a)(1)(A), (c)(1).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
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. FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
At step one, the ALJ found that Baker has not engaged in substantial gainful
activity since the alleged onset date of disability. R. 89. At step two, the ALJ found
that Baker had the following severe impairments: degenerative disc disease of the
cervical and lumbar spine, varicose veins, and obesity. R. 90. At step three, the
ALJ found that Baker’s impairments did not meet or medically equal the severity
of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. R. 91.
Before proceeding to step four, the ALJ found, based on the entire record,
that Baker has the RFC to perform sedentary work as defined in 20 C.F.R. §
404.1567(a); that she can occasionally lift and/or carry ten pounds and can
frequently lift and carry less than ten pounds; that she cannot kneel, crouch, crawl,
or climb ladders, ropes, or scaffolds; that she can occasionally balance, stoop, and
climb ramps and stairs; and that she must avoid concentrated exposure to extreme
temperatures, unprotected heights, and moving machinery. R. 91.
At step four, the ALJ found that Baker is unable to perform any past relevant
work. R. 94. Based on Baker’s age, education, work experience, RFC, and the
testimony of a vocational expert, the ALJ found that jobs exist in significant
numbers in the national economy that Baker can perform, including the
representative occupations of inspector, waxer, and assembler. R. 95. Therefore,
the ALJ concluded that Baker is not disabled as defined by the Act.
Baker contends that reversal is warranted here because the Commissioner’s
decision is not supported by substantial evidence. Allegedly, the ALJ improperly
applied a “sit and squirm” test to assess Baker’s subjective testimony; failed to
consult a medical expert to determine whether Baker’s condition is medically
equivalent to Listing 1.04; improperly rejected the opinion of Baker’s treating
physician, Dr. Dana Brown; and the Appeals Council erred by refusing to consider
new evidence concerning alleged non-exertional impairments submitted after the
ALJ’s decision. Doc. 9 at 15-51. The court will address each contention in turn.
A. Baker’s Subjective Testimony
Baker contends that the ALJ erred in weighing Baker’s subjective testimony
of pain by engaging in sit-and-squirm jurisprudence. In this circuit, “a three part
‘pain standard’ [is applied] when a claimant seeks to establish disability through
his or her own testimony of pain or other subjective symptoms.” Holt v. Sullivan,
921 F.2d 1221, 1223 (11th Cir. 1991). The claimant must present:
(1) evidence of an underlying medical condition and either (2) objective
medical evidence that confirms the severity of the alleged pain arising from
that condition or (3) that the objectively determined medical condition is of
such a severity that it can be reasonably expected to give rise to the alleged
Id. (citation omitted). An ALJ may discredit pain testimony if the ALJ articulates
reasons for doing so and substantial evidence supports the ALJ’s finding. Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Hale v. Bowen, 831 F.2d
1007, 1011 (11th Cir. 1987)). In making a credibility determination, however, the
ALJ cannot rely on “sit and squirm” jurisprudence. See Freeman v. Schweiker, 681
F.2d 727, 731 (11th Cir. 1982) (defining “sit and squirm” jurisprudence as when an
ALJ “subjectively arrive[s] at an index of traits which he expects the claimant to
manifest at the hearing. If the claimant falls short of the index, the claim is
denied.”). On the other hand, an ALJ may properly consider a claimant’s
appearance and demeanor, among other criteria, in weighing the claimant’s
testimony. See Norris v. Heckler, 760 F.2d 1154, 1157-58 (11th Cir. 1985).
At the hearing, Baker testified that she has “constant pain that goes down
into my lower back and to my leg,” R. 126, and that she experiences chronic neck
pain, edema, swelling, and constant numbness and tingling in her legs, shoulder,
arms and hands, R. 126, 136. According to Baker, on a normal day, her back and
leg pain is an eight out of ten, and her neck pain is a ten out of ten. R. 126-7. To
cope with the pain, Baker takes various medications and elevates her leg every
hour. R. 127-8. As it relates to her daily activities, Baker testified that she does
light housework, washes the dishes, does light laundry, goes to church activities on
the weekend, and goes grocery shopping with her husband’s assistance. R. 128-9.
She testified also that she drives three times a week for doctor’s appointments and
“children’s activities,” such as transporting her daughter to and from violin lessons,
and that she has problems driving more than thirty minutes because she needs to
elevate her legs. R. 138-9. She further testified that she is only able to sit for ten
minutes, that she can only stand in place for five minutes, and that she can only
walk for five minutes before stopping, that the swelling in her leg causes fatigue,
and that she experiences daily muscle spasms in her lower back. R. 130, 132, 135.
The ALJ found in part that Baker’s statements regarding the severity of her
impairments were inconsistent with her behavior. See R. 92 (stating that although
Baker’s “medically determinable impairments could reasonably be expected to
cause the alleged symptoms . . . [Baker’s] statements concerning the intensity,
persistence, and limiting effects of these symptoms are not entirely credible . . .”).
The ALJ explained:
For instance, the claimant testified that she can only sit for 5 to 10
minutes at a time. Conversely, she testified that she can drive up to 30
minutes at a time. The undersigned also notes the claimant sat through
the entire hearing of approximately 45 minutes and she never
requested to stand. Moreover, she did not mention that she needed to
shift positions in her chair until approximately 35 minutes after the
R. 93. The ALJ’s statements reflect the type of “sit and squirm” jurisprudence that
is forbidden in the Eleventh Circuit. See McRoberts v. Bowen, 841 F.2d 1077, 1081
(11th Cir. 1988) (holding that an ALJ may not comment on the fact that a claimant
“did not appear in pain.”). Contrary to the Commissioner’s contentions, doc. 10 at
19-20, these statements are not mere observations but are “clinical judgments
about the presence of pain based upon a short one-time observation of the plaintiff
at the hearing.” Bennett v. Barnhart, 288 F. Supp. 2d 1246, 1250-51 (N.D. Ala.
Nevertheless, “when an incorrect application of the regulations results in
harmless error because the correct application would not contradict the ALJ’s
ultimate findings, the ALJ’s decision will stand.” Wright v. Barnhart, 153 F. App’x
678, 684 (11th Cir. 2005). Thus, although the ALJ’s remarks on Baker’s behavior
during the hearing were erroneous, there is no reversible error where, as here, the
ALJ’s ultimate finding was properly supported by substantial evidence. See
Ostborg v. Comm’r of Soc. Sec., 610 F. App’x 907, 917-18 (11th Cir. 2015)
(finding that the ALJ’s discussion of inconsistent statements concerning the
plaintiff’s alcohol consumption were harmless, “even if erroneous,” because
substantial evidence supported the credibility finding). A review of the record
shows that the ALJ properly cited and relied on other reasons for finding Baker’s
testimony “not entirely credible.” See R. 92-93; Wilson, 284 F.3d at 1225.
Specifically, the ALJ pointed to medical records documenting Baker’s pain in her
neck, back, and legs; Baker’s gap in treatment for over one year; the opinion of Dr.
Gregory Mortimer; and Baker’s testimony about her daily activities. R. 93-94.
As the ALJ noted, multiple medical records cast doubt on Baker’s testimony
as to the severity of her back pain. R. 93. For example, MRIs from 2012 and 2014
revealed no evidence of cord compression and no acute abnormality of the lumbar
spine, respectively. R. 442, 666. Moreover, imaging of Baker’s cervical spine in
August 2015 indicated no acute cervical spine fracture or alignment and only mild
degenerative disc disease. R. 738. And, an x-ray of Baker’s lumbar spine in
October 2015 also reflected no significant abnormalities. R. 753.
The record also reveals signs of improvement and complaints of pain that
varied in their severity, further substantiating the ALJ’s conclusion. Following
Baker’s August 2013 ablation of her left leg, Baker reported pain and swelling. But
by October 2013, Baker was reporting pain but no swelling, and Dr. Eric Hager
reported that Baker was “improving slowly.” R. 445, 574. By November 2013,
Baker’s pain was reportedly improving, although she was walking with a cane. R.
569. In December 2013, Dr. Steven Leers reported that Baker’s radiofrequency
ablation “has done well and the medial thigh issue has resolved and is
asymptomatic,” that there were no musculoskeletal issues, and that Baker reported
she did not experience any physical difficulties affecting her ability to complete
daily activities. R. 598, 602-3. By January 2014, Baker reportedly experienced
“some improvement” in her pain and no longer required a cane to walk. R. 563. By
May 2014, Baker’s left leg pain was “near 50% better” and “near complete
resolution while on the [steroid] medications.” R. 668.
The ALJ also found significant that Baker did not obtain treatment from
June 18, 2014 until August 29, 2015, a factor that the ALJ reasonably concluded
undercut Baker’s credibility as to the alleged severity of her impairments. R. 92;
see Packer v. Comm’r, Soc. Sec. Admin., 542 F. App’x 890, 892 (11th Cir. 2013)
(noting that an 18-month gap in treatment supported the ALJ’s credibility finding).
Moreover, as the ALJ noted, Baker did not report any arm numbness, leg
numbness, or associated weakness at her subsequent hospital visit on August 29,
2015 for neck pain. R. 92, 736.1 This fact suggests that Baker’s alleged symptoms
were not as persistent as she alleged.
Additionally, the ALJ relied on the opinion of Dr. Mortimer, whose findings
further contradict Baker’s testimony. R. 94. Dr. Mortimer concluded that Baker
“has described daily activities that are not significantly limited” based on her
reports that she could drive, do some shopping and household chores, and has
received treatment for her alleged symptoms that has been “fairly successful.” R.
163. Moreover, Baker’s own testimony of her daily activities further undermines
the alleged severity of her impairments: Baker testified that she runs errands for
The ALJ erroneously stated that this hospital visit occurred in September
2015. R. 92, 736. This error does not negate the ALJ’s valid inference that the
medical notes reflect an inconsistency with Baker’s testimony alleging disability.
See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (finding that the ALJ’s
erroneous statement that plaintiff was “closely approaching advanced age” was
harmless because the ALJ correctly applied the vocational factors for those
approaching “retirement age”).
her children, performs household tasks, drives, goes shopping, and regularly
attends church activities. R. 94, 138, 128-9. Baker’s function report from June 15,
2014 further states that she gets her children from school, prepares meals, prepares
her children for school and bed, and shops with her family. R. 310, 312.
Finally, the ALJ relied on an inconsistency in Baker’s testimony concerning
her travel to Pennsylvania, stating:
The claimant also testified that she recently returned from seeing her
treating physician in Pittsburgh, Pennsylvania, in October 2015, and she
can return to seeing this treating source as needed. Given the travel
distance from Pittsburgh, Pennsylvania to Athens, Alabama, whether
driving or flying, an individual would engage in extended periods of
sitting, which is contrary to the claimant’s alleged limitations.
R. 93. Baker objects to this reasoning as erroneous speculation. Doc. 9 at 39-41.
The ALJ did not err, however, by inferring that an individual with Baker’s alleged
conditions—difficulty driving more than thirty minutes and sitting more than ten
minutes at a time—would be unlikely to engage in the “extended periods of
sitting” necessary to travel to Pittsburgh. See R. 130, 138-9; see Celebrezze v.
O’Brient, 323 F.2d 989, 990 (5th Cir. 1963) (finding that an ALJ may properly
draw inferences supported by substantial evidence). Thus, the ALJ reasonably
concluded that Baker’s testimony was contradictory, which further undermined
B. Medical Opinion Concerning Equivalence to Listing 1.04
Baker contends that the ALJ erred by failing to obtain and consider an
opinion from a medical consultant as to whether Baker’s impairments “equaled”
Listing 1.04 when considered in combination with her obesity. Doc. 9 at 17-24;
Doc. 11 at 1-11. 2 At step three of the sequential evaluation process, Baker has the
burden of showing that her impairments meet or equal a listing in Appendix 1. See
Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). To “equal” a listing,
Baker’s impairments must be “at least equal in severity and duration to the criteria
of any listed impairment.” 20 C.F.R. § 404.1526(c). The ALJ “is responsible for
deciding the ultimate legal question whether a listing is met or equaled.” SSR 966p, 1996 WL 374180, at *3 (July 2, 1996).3 In particular, “when determining
whether an individual with obesity has a listing-level impairment or combination
of impairments . . . adjudicators must consider any additional and cumulative
effects of obesity.” 20 C.F.R. § 404, Subpart P, Appendix 1.00(Q) (2015).
Baker does not dispute the ALJ’s finding that her impairments do not meet
Listing 1.04. See Doc. 9 at 18-24; Doc. 11 at 1-11.
On March 27, 2016, SSR 17-2p rescinded and replaced SSR 96-6p, the
ruling concerning determinations of medical equivalence and consideration of
consultative medical opinions. SSR 17-2p, 2017 WL 5180304, at *1 (Mar. 27,
2017). SSR 17-2p requires that an ALJ’s finding of medical equivalence be based
on one of three types of evidence contained in the record. Id. at *2. SSR 17-2p
does not apply retroactively, and when reviewing a final decision in a claim for
DIB, the court reviews the decision using the rules that were in effect at the time of
the decision. See Hargress v. Soc. Sec. Admin., 883 F.3d 1302, 1308 (11th Cir.
2018) (holding that SSR 16-3p does not apply retroactively).
Moreover, in determining medical equivalence to any listing, the ALJ must
“consider the medical opinion of one or more designated physicians on an advisory
basis.” Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987)
(citing 20 C.F.R. § 416.926(b)); see 20 C.F.R. § 404.1526(c). Specifically, “the
judgment of a physician (or psychologist) designated by the Commissioner on the
issue of equivalence on the evidence . . . must be received into the record as expert
opinion evidence and given appropriate weight.” SSR 96-6p, 1996 WL 374180, at
*3 (July 2, 1996); see Andrews v. Berryhill, No. 2:16-CV-221-SRW, 2017 WL
4227935, at *4 (M.D. Ala. Sept. 22, 2017) (finding the ALJ erred by failing to
obtain and consider a consultative medical opinion on the issue of medical
Here, the ALJ properly obtained and considered the medical opinion of at
least one designated physician on the issue of medical equivalence to Listing 1.04.
Prior to the ALJ’s decision, Dr. Paul Reardon and Dr. Mortimer both submitted
into evidence signed Disability Determination and Transmittal forms based on
their review of Baker’s medical records. R. 145-53; R. 154-67.4 In their Disability
The Disability Determination and Transmittal Forms electronically signed by Dr.
Reardon and Dr. Mortimer are SSA-831-U3 forms. R. 153, 167. Baker contends
that these forms do not constitute the type of medical opinion evidence necessary
to satisfy SSR 96-6p. Doc. 11 at 9. SSR 96-6p states:
“The signature of a State agency medical or psychological consultant on an
SSA-831-U5 (Disability Determination and Transmittal Form) or SSA-832U5 or SSA-833-U5 (Cessation or Continuance of Disability or Blindness)
Determination Explanations, both Dr. Reardon and Dr. Mortimer noted that they
had considered Listing 1.04 and concluded that Baker was not disabled. R. 148,
152, 160, 165. Contrary to Baker’s contentions, doc. 11 at 8, both doctors also
explicitly considered Baker’s impairment of obesity in combination with her other
impairments. Dr. Reardon wrote,
The medical evidence establishes a medically determinable
impairment of degenerative disc disease of the cervical spine,
superficial thrombophlebitis of the left leg, hypertension, history of
bilateral varicose veins of the legs s/p radiofrequency ablation, morbid
obesity and a history of asthma.
R. 150 (emphasis added). Moreover, Dr. Mortimer’s detailed analysis of Baker’s
medical records through May 13, 2014 notes that multiple exam results indicated
Baker was “morbidly obese.” R. 158-60. Dr. Mortimer also cites these results, as
well as Baker’s other physical impairments, as evidence supporting his findings
concerning Baker’s exertional and postural limitations. R. 161-62. Based on these
ensures that consideration by a physician (or psychologist) designated by the
Commissioner has been given to the question of medical equivalence at the
initial and reconsideration levels of administrative review. Other documents,
including the Psychiatric Review Technique Form and various other
documents on which medical and psychological consultants may record their
findings, may also ensure that this opinion has been obtained at the first two
levels of administrative review.”
SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996). The language of SSR 96-6p
indicates that signed SSA-831-U3 forms are sufficient to ensure the required
consideration of medical equivalence by a designated physician or psychologist.
See Vinson v. Colvin, No. 2:15-CV-477-TFM, 2016 WL 676418, at *5 n.8 (M.D.
Ala. Feb. 18, 2016) (noting that signed SSA-831-U3 forms satisfy SSR 96-6p).
notes and findings, Dr. Reardon’s and Dr. Mortimer’s analyses constitute medical
opinions by designated consultative physicians on the issue of medical
equivalency. See 20 C.F.R. § 404.1526(c).
Baker further argues that “the ALJ does not in her opinion cite or rely upon
either of the opinions [of Dr. Reardon or Dr. Mortimer].” Doc. 11 at 7. To the
contrary, the ALJ cited Dr. Mortimer’s opinion and afforded that opinion “great
weight” because of its consistency with Baker’s medical history. R. 94. Regardless,
in determining whether a claimant’s impairments meet or equal a listing, the ALJ
need not “mechanically recite the evidence leading to her determination. There
may be an implied finding that a claimant does not meet a listing.” Hutchison v.
Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986). Here, proper consideration is
evident from the ALJ’s explicit rejection of Baker’s argument that her “obesity, in
combination with her back impairment, would medically equal listing 1.04” and
the ALJ’s subsequent discussion of the medical evidence. R. 91, 92-94; see Prince
v. Comm’r of Soc. Sec., 551 F. App’x 967, 971 (11th Cir. 2014) (finding no error
where the ALJ discussed the medical evidence and generally concluded the
claimant did not meet any listing).
Finally, Baker contends the ALJ erred by stating that, “[t]here is no opinion
from an acceptable medical source as defined in 20 CFR 404.1513(a), as is
required to meet or medically equal . . . listing [1.04].” R. 91. While the absence of
a medical opinion cannot be the sole basis for an ALJ’s finding, the ALJ did not
rely solely on this absence in finding no disability. See Clyburne v. Comm’r, Soc.
Sec. Admin., 555 F. App’x 892, 894 (11th Cir. 2014) (citing Lamb v. Bowen, 847
F.2d 698, 703 (11th Cir. 1988)) (finding that the ALJ did not base his RFC
determination solely on a physician’s silence). As noted above, the medical
findings of Dr. Reardon and Dr. Mortimer—the latter of which the ALJ assigned
“great weight”—substantiate the ALJ’s conclusion that Baker’s impairments in
combination did not “equal” Listing 1.04.
In addition, the medical records provide substantial support for the ALJ’s
conclusion. The records indicate that Baker has been obese since at least October
22, 2012, almost a year before the alleged onset date. R. 374. 5 After the alleged
onset date, although Baker complained of leg and back pain on multiple medical
visits, see R. 389-472, Dr. Eric Hager noted on October 9, 2013, November 7,
2013, and January 8, 2014 that Baker’s pain had improved. R. 574, 569, and 563.
On April 19, 2014, Dr. Michael Goldberg noted that there was “no acute
abnormality of the lumbar spine” and only “mild degenerative changes” based on
an MRI. R. 666. Later, after an initial admission to the Athens-Limestone
On October 22, 2012, Baker weighed 125.0 kilograms and was 1.677 meters tall,
making her Body Mass Index 44.4 and establishing her obesity under the
Guidelines at that time. See R. 374; SSR 02-1p, 2002 WL 34686281, at *2 (Sept.
12, 2002) (the Clinical Guidelines of the National Institute of Health, which
provide guidance in disability determinations, state that a BMI of 30.0 or above is
Emergency Department for neck pain on August 29, 2015, Baker was discharged
the same day and described as “stable” with a pain rating of zero out of ten. R. 745.
Medical notes from that date also state that Baker did not have neck spasms or
swelling and had normal range of motion. R. 737. These medical records, in
combination with the medical opinions of Dr. Reardon and Dr. Mortimer, provide
substantial evidence to support the ALJ’s finding that Baker’s obesity, in
combination with her other impairments, does not medically equal Listing 1.04.
See Lewis v. Comm’r of Soc. Sec., 487 F. App’x 481, 483-84 (11th Cir. 2012)
(affirming the ALJ’s finding that the claimant’s obesity and arthritis did not meet
or equal a listing where medical records reflected only mild-to-moderate
limitations and improvement in symptoms).
C. Dr. Brown’s Opinion
Baker also contends that the ALJ erred by assigning “little weight” to Dr.
Brown’s opinion that Baker has no capacity to work. Doc. 9 at 24-37; doc. 11 at
15-24. An ALJ must consider multiple factors in determining how much weight to
assign to a physician’s opinion, including whether the doctor examined the
claimant, whether the doctor treated the claimant, the evidence the doctor presents
to support her opinion, and whether the doctor’s opinion is consistent with the
record as a whole. 20 C.F.R. § 404.1527(c). A treating physician’s opinion is
generally entitled to more weight than that of a non-treating physician, and an ALJ
must provide good reasons for the weight given to a treating doctor’s opinion. 20
C.F.R. § 404.1527(c)(2); Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179
(11th Cir. 2011) (“Absent ‘good cause,’ an ALJ is to give the medical opinions of
treating physicians ‘substantial or considerable weight.’”) (quoting Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). However, an ALJ may discount
a treating physician’s opinion when it is conclusory, the physician fails to support
her opinion with objective medical evidence, the opinion is inconsistent with the
medical record as a whole, or the evidence otherwise supports a contrary finding.
See 20 C.F.R. § 404.1527(c); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1159-60 (11th Cir. 2004). Moreover, although a physician’s opinion is relevant
evidence, “[a] claimant’s [RFC] is a matter reserved for the ALJ . . . and while a
physician’s opinion on the matter will be considered, it is not dispositive.” Beegle
v. Soc. Sec. Admin., Comm’r, 482 F. App’x 483, 486 (11th Cir. 2012) (citing 20
C.F.R. § 404.1527(d)(2)).
Here, the ALJ assigned “little weight” to Dr. Brown’s opinion that Baker
had no capacity to work, explaining that this opinion was “inconsistent with the
evidence considered as a whole.” R. 94. Baker contends the ALJ erroneously failed
to “state how the opinion of Dr. Brown is inconsistent with the record as a whole.”
Doc. 9 at 24. The court disagrees.
First, it is worth noting that Dr. Brown’s opinion as to Baker’s work capacity
is not a medical opinion entitled to substantial weight. See 20 C.F.R.
§ 404.1527(d)(1), (3); Hutchinson v. Astrue, 408 F. App’x 324, 328 (11th Cir.
2011) (finding that an opinion about whether the claimant “could hold a job is a
vocational opinion, not a medical one” and is a “question reserved to the ALJ”).
Second, the ALJ’s analysis of Baker’s RFC and discussion of Baker’s medical
records provide sufficient explanation as to how Dr. Brown’s conclusion is
inconsistent. See R. 92-94. For instance, as noted above, multiple medical reports
in 2013 and 2014 by treating physician Dr. Hager indicate gradual improvement to
Baker’s alleged symptoms. See supra Section V-A; R. 445, 574, 569, 598, 602-3,
Third, Dr. Brown’s opinion that Baker cannot work came in a fill-in-theblank form and is conclusory: Dr. Brown circled “None” in response to the prompt
“Work Capacity” and provided no comments to substantiate his conclusion. R.
660. Conclusory statements by physicians are not entitled to considerable weight,
particularly where they are contradicted by evidence from the record. See Mason v.
Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (“Form reports in which a physician’s
obligation is only to check a box or fill in a blank are weak evidence at best.”);
Macera v. Barnhart, 305 F. Supp. 2d 410, 419 (D. De. 2004) (citing 20 C.F.R. §
404.1527(e)(1), (3)) (“It is well-established that a physician’s conclusory
statements that a claimant is ‘disabled’ or ‘unable to work’ are not binding on the
Commissioner, and the Commissioner is not required to give special significance
to the source of such an opinion.”). Thus, the ALJ properly discounted Dr.
Brown’s conclusory opinion with respect to Baker’s work capacity in assessing
D. The Appeals Council’s Rejection of New Evidence of Baker’s
Baker further contends that the Appeals Council improperly rejected new
relevant, material evidence indicating that Baker experienced the non-exertional
impairments of numbness and tingling in her hands and legs. Doc. 9 at 44-51.
Generally, a claimant may present new evidence in support of her application at
each stage of the administrative process. Ingram v. Comm’r of Soc. Sec. Admin,
496 F.3d 1253, 1261 (11th Cir. 2007) (citing 20 C.F.R. § 404.900(b)). The Appeals
Council must review a case if the claimant submits additional evidence that is new,
material, and relates to the period on or before the date of the hearing decision, and
if “there is a reasonable probability that the additional evidence would change the
outcome of the decision.” 20 C.F.R. § 404.970(a)(5). “New evidence is
chronologically relevant if it ‘relates to the period on or before the date of the
ALJ’s hearing decision.’” Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d 1302,
1309 (11th Cir. 2018) (quoting 20 C.F.R. § 404.970(b), 416.1470(b) (2016)).
“Evidence is material if a reasonable possibility exists that the evidence would
change the administrative result.” Id. (citing Washington v. Soc. Sec. Admin., 806
F.3d 1317, 1320 (11th Cir. 2015)).
The Appeals Council did not consider treatment notes from SportsMed
Orthopaedic Surgery and Spine Center, dated May 6, 2016 to August 25, 2016, and
Crestwood Medical Center, dated August 10, 2016 to August 28, 2016, explaining
that these records concerned developments after the ALJ’s decision. R. 5. The
records indeed concern Baker’s treatment after the ALJ’s decision. See R. 11-78.
The only statement in these notes that Baker contends relates back to the
period prior to the ALJ’s decision is a single entry by Dr. Javier Reto that reads: “I
reviewed a cervical MRI report dated approximately 4 years ago which states
Baker had a disc protrusion at C5-6 posteriorly, and a moderate-sized disc
herniation at C6-7 with a protrusion centrally.” Doc. 9 at 47-8; R. 60. This single
sentence describing one report that Dr. Reto reviewed is not sufficient to establish
chronological relevance. See Hargress, 833 F.3d at 1309. Rather, as Dr. Reto
noted, his impression and plan seemed to be based on “progressively worsening
symptoms and weakness,” rather than symptoms that precede the ALJ’s decision.
See Ring v. Soc. Sec. Admin., Comm’r, 728 F. App’x 966, 969 (11th Cir. 2018)
(finding that a doctor’s evaluation related to the worsening of a condition or the
onset of a new condition, and thus was not “chronologically relevant”). Moreover,
without more, this single sentence concerning Dr. Reto’s review of an older MRI
report does not create a “reasonable possibility . . . the evidence would change the
administrative result.” See Hargress, 883 F.3d at 1309.
Based on the foregoing, the court concludes that the ALJ’s and Appeals
Council’s determination that Baker is not disabled is supported by substantial
evidence, and that the ALJ and Appeals Council applied proper legal standards in
reaching their determinations. The Commissioner’s final decision is AFFIRMED.
A separate order in accordance with this memorandum of decision will be entered.
DONE the 27th day of September, 2018.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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