Fell v. Social Security Administration, Commissioner
Filing
18
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 9/28/16. (MRR, )
FILED
2016 Sep-28 PM 04:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
REBA H. FELL,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
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Case No. 6:15-cv-00533-TMP
MEMORANDUM OPINION
I.
Introduction
The plaintiff, Reba H. Fell, appeals from the decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying her application
for Disability Insurance Benefits (“DIB”). Ms. Fell timely pursued and exhausted
her administrative remedies and the decision of the Commissioner is ripe for
review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to
the exercise of dispositive jurisdiction by a magistrate judge pursuant to 28 U.S.C.
§ 636(c). (Doc. 17). Accordingly, the court issues the following memorandum
opinion.
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Ms. Fell was 46 years old on the date of the ALJ’s opinion. (Tr. at 30). Her
past work experience includes employment as a framer, furniture builder, and
housekeeper. Id. Ms. Fell claims that she became disabled on April 1, 2009, due to
nerve damage from an injury of the left shoulder, arm, and neck, and anxiety. (Tr.
at 270). The plaintiff also sought, and was awarded, a closed period of disability
benefits from October 11, 2005 through October 11, 2006, immediately following
the injury.
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
she is, the claimant is not disabled and the evaluation stops. Id. If she is not, the
Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the 12-month durational requirements
before a claimant will be found to be disabled. Id. The decision depends on the
medical evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir.
1971). An impairment is “severe” if it more than minimally affects the claimant’s
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ability to perform substantial gainful work. If the claimant’s impairments are not
severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
Otherwise, the analysis continues to step three, which is a determination of
whether the claimant’s impairments meet or equal the severity of an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s impairments fall within
this category, she will be found disabled without further consideration. Id. If they
do not, a determination of the claimant’s residual functional capacity will be made
and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e), 416.920(e).
Residual functional capacity (“RFC”) is an assessment, based on all relevant
evidence, of a claimant’s remaining ability to do work despite her impairments. 20
C.F.R. § 404.945(a)(1).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant’s RFC, as well as the
claimant’s age, education, and past work experience, in order to determine if he or
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she can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the
claimant can do other work, the claimant is not disabled. Id. The burden is on the
Commissioner to demonstrate that other jobs exist which the claimant can
perform; and, once that burden is met, the claimant must prove her inability to
perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Ms. Fell last
met the insured status requirement on December 31, 2009. (Tr. at 22). She
further determined that Ms. Fell had not engaged in substantial gainful activity
between the alleged onset date of April 1, 2009, and the plaintiff’s date last insured.
Id. The ALJ goes on to say that there is no record of work activity for the plaintiff
since the alleged onset date. Id. According to the ALJ, Plaintiff’s complex regional
pain syndrome (“CRPS”), affecting the posterior aspects of the plaintiff’s left
upper extremity, status post cervical spine fusion, anxiety disorder, and major
depressive disorder are considered “severe” based on the requirements set forth in
the regulations. Id. The ALJ also determined that the plaintiff suffered from the
non-severe impairment of obesity. (Tr. at 23). She found that the plaintiff’s
impairments neither meet nor medically equal any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ did not find Ms. Fell’s
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allegations related to pain and the impact of her impairments to be totally credible,
and determined that she has the residual functional capacity to “perform light work
as defined in 20 CFR 404.1567(b) except with frequent performance of postural
maneuvers but no climbing of ladders, ropes, or scaffolds. The claimant should
avoid overhead reaching, concentrated exposure to extreme cold and heat, and all
exposure to dangerous moving unguarded machinery and unprotected heights.
The claimant would be limited to unskilled work defined as understanding,
remembering, and carrying out simple instructions, maintaining concentration and
remaining on task for two hour periods throughout an eight-hour workday with all
customary rest periods, and tolerating infrequent and well-explained workplace
changes and occasional and non-intensive interaction with the general public.”
(Tr. at 23-24, 25).
According to the ALJ, Ms. Fell was unable to perform any of her past
relevant work through her date last insured of December 31, 2009. (Tr. at 30).
The plaintiff is a “younger individual,” and she has a “limited education,” as
those terms are defined by the regulations.
Id.
The ALJ determined that
“transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding that
the claimant is ‘not disabled,’ whether or not the claimant has transferable job
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skills.” Id. The ALJ found that Ms. Fell has the residual functional capacity to
perform a significant range of light work. (Tr. at 31). Even though Plaintiff cannot
perform the full range of light work, the ALJ used the vocational expert’s testimony
as a guideline for finding that there are a significant number of jobs in the national
economy that she is capable of performing, such as ticket taker, bench
assembler/small products, and information clerk. Id. The ALJ concluded her
findings by stating that Plaintiff “was not under a disability, as defined in the Social
Security Act, at any time from April 1, 2009, the alleged onset date, through
December 31, 2009, the date last insured.” Id.
II.
Standard of Review
This court’s role in reviewing claims brought under the Social Security Act
is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not decide
facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id.
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“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177,
1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Federal Mar.
Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this court finds that the
evidence preponderates against the Commissioner’s decision, the court must
affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400.
No decision is automatic, however, for “despite this deferential standard [for
review of claims] it is imperative that the Court scrutinize the record in its entirety
to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815
F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal
standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.
1984).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
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decision of disability.”
20 C.F.R. §§ 404.1527(e), 416.927(d).
Whether the
plaintiff meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
disagree with the ALJ about the significance of certain facts, the court has no power
to reverse that finding as long as there is substantial evidence in the record
supporting it.
III.
Discussion
Ms. Fell alleges that the ALJ’s decision should be reversed and remanded for
three reasons. First, she argues that the ALJ erred as a matter of law in her
evaluation of the plaintiff’s chronic regional pain syndrome (“CRPS”). Second,
the plaintiff contends that the ALJ did not properly evaluate the various medical
source opinions in the record. And, third, she asserts that the ALJ failed to
articulate fully her reasons for rejecting the testimony of the plaintiff’s husband.
A. The ALJ’s Evaluation of the Plaintiff’s CRPS
According to the plaintiff, the ALJ failed to apply the proper legal standard
for assessing the plaintiff’s CRPS. She claims that the ALJ inappropriately applied
Social Security Ruling (“SSR”) 03-2p by failing to properly evaluate the plaintiff’s
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credibility or apply the Eleventh Circuit pain standard. An explanation regarding
the identification and evaluation of CRPS under the Social Security Administration
rules is provided by SSR 03-2p which states, as follows:
Policy Interpretation
What is RSDS/CRPS?
RSDS/CRPS is a chronic pain syndrome most often resulting from
trauma to a single extremity. It can also result from diseases, surgery,
or injury affecting other parts of the body. Even a minor injury can
trigger RSDS/CRPS. The most common acute clinical manifestations
include complaints of intense pain and findings indicative of
autonomic dysfunction at the site of the precipitating trauma. Later,
spontaneously occurring pain may be associated with abnormalities in
the affected region involving the skin, subcutaneous tissue, and bone.
It is characteristic of this syndrome that the degree of pain reported is
out of proportion to the severity of the injury sustained by the
individual. When left untreated, the signs and symptoms of the
disorder may worsen over time.
...
RSDS/CRPS constitutes a medically determinable impairment when
it is documented by appropriate medical signs, symptoms, and
laboratory findings, as discussed above. RSDS/CRPS may be the basis
for a finding of “disability.” Disability may not be established on the
basis of an individual’s statement of symptoms alone.
For purposes of Social Security disability evaluation, RSDS/CRPS can
be established in the presence of persistent complaints of pain that are
typically out of proportion to the severity of any documented
precipitant and one or more of the following clinically documented
signs in the affected region at any time following the documented
precipitant:
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• Swelling;
• Autonomic instability—seen as changes in skin color or texture,
changes in sweating (decreased or excessive sweating), changes
in skin temperature, and abnormal pilomotor erection
(gooseflesh);
• Abnormal hair or nail growth (growth can be either too slow or
too fast);
• Osteoporosis; or
• Involuntary movements of the affected region of the initial
injury.
When longitudinal treatment records document persistent limiting
pain in an area where one or more of these abnormal signs has been
documented at some point in time since the date of the precipitating
injury, disability adjudicators can reliably determine that RSDS/CRPS
is present and constitutes a medically determinable impairment. It
may be noted in the treatment records that these signs are not present
continuously, or the signs may be present at one examination and not
appear at another.
Transient findings are characteristic of
RSDS/CRPS, and do not affect a finding that a medically
determinable impairment is present.
...
Claims in which the individual alleges RSDS/CRPS are adjudicated
using the sequential evaluation process, just as for any other
impairment. Because finding that RSDS/CRPS is a medically
determinable impairment requires the presence of chronic pain and
one or more clinically documented signs in the affected region, the
adjudicator can reliably find that pain is an expected symptom in this
disorder. Other symptoms, including such things as extreme
sensitivity to touch or pressure, or abnormal sensations of heat or cold,
can also be associated with this disorder. Given that a variety of
symptoms can be associated with RSDS/CRPS, once the disorder has
been established as a medically determinable impairment, the
adjudicator must evaluate the intensity, persistence, and limiting
effects of the individual’s symptoms to determine the extent to which
the symptoms limit the individual’s ability to do basis work activities.
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For this purpose, whenever the individual’s statements about the
intensity, persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, the
adjudicator must make a finding on the credibility of the individual’s
statement based on a consideration of the entire case record. This
includes the medical signs and laboratory findings, the individual’s
own statements about the symptoms, any statements and other
information provided by treating or examining physicians or
psychologists and other persons about the symptoms and how they
affect the individual, and any other relevant evidence in the case
record. Although symptoms alone cannot be the basis for finding a
medically determinable impairment, once the existence of a medically
determinable impairment has been established, an individual’s
symptoms and the effect(s) of those symptoms on the individual’s
ability to function must be considered both in determining impairment
severity and in assessing the individual’s residual functional capacity
(RFC), as appropriate. If the adjudicator finds that pain or other
symptoms cause a limitation or restriction having more than a minimal
effect on an individual’s ability to perform basis work activities, a
“severe” impairment must be found to exist. See SSR 96-3p, “Titles
II and XVI: Considering Allegations of Pain and Other Symptoms in
Determining Whether a Medically Determinable Impairment is
Severe” and SSR 96-7p, “Titles II and XVI: Evaluation of Symptoms
in Disability Claims: Assessing the Credibility of an Individual’s
Statements.”
SSR 03-2p, “Titles II and XVI: Evaluating Cases Involving Reflex Sympathetic
Dystrophy Syndrome/Complex Regional Pain Syndrome, 2003 WL 22399117
(October 20, 2003).
The ALJ acknowledged that the plaintiff suffered from the severe
impairment of CRPS. (Tr. at 22). Therefore, according to SSR 03-2p, the ALJ is
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next to evaluate the limiting effect of the plaintiff’s symptoms, as with any other
medically determinable impairment. There is no special or different analysis or
assessment that applies to CRPS. The ALJ addressed the claimant’s credibility
along with the medical evidence and applied the pain standard. The ALJ addressed
the plaintiff’s CRPS symptoms as follows:
The claimant alleges disability due to injuries to the neck and left
shoulder and arm, nerve damage, anxiety, chronic pain, and major
depressive disorder (Exhibits B2E and B14E). In May 2009, the
claimant reported pain affected her ability to sleep and limited her
ability to independently perform personal care items, do household
chores, and yard work. The claimant also reported she needed
reminders to take medications and accompaniment to go places, could
only walk to the mailbox before stopping to rest, had problems getting
along with others, did not spend time with others, and could not
follow instruction or handle stress or changes in routine well.
However, the claimant reported she was able to prepare simple meals,
drive, shop in stores, handle money accounts, and sit in a recliner and
watch television and read all day (Exhibit B4E). The claimant’s
husband corroborated some of the claimant’s reports and added the
claimant got nervous around people and dealing with changes but
could walk 400-500 feet before stopping to rest, spend time with
others, and attend church on a regular basis (Exhibit B3E). At the
hearing in March 2013, the claimant testified she received a workers’
compensation settlement of $80,000 in April 2009 for an injury to her
shoulder that included continuing medical coverage. She also testified
that she experiences pain in her neck, arms, and shoulders with stress
and movement making the pain worse. The claimant stated she was
not able to do household chores and lies down all the time.
Additionally, the claimant stated her hands go dead with pain in the
fingertips coming and going and she experiences problems with
memory and concentration. The claimant’s husband, William Fell,
also testified at the hearing and stated the claimant use [sic] to handle
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paperwork for his company, but she has experienced a decline in
mental functioning to the point she cannot comprehend instructions.
Additionally, he stated the claimant need [sic] her medications fixed
for her with someone to check up on her to make sure she took as
prescribed. . . .
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments could reasonably
be expected to cause some of the alleged symptoms; however, the
claimant’s and her husband’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.
The objective medical evidence is fully consistent with the above
residual functional capacity and is inconsistent with allegations of
disabling levels of pain and other subjective complaints. The record
shows the claimant injured her neck and shoulder in a work place
injury in October 2005 (Exhibit B8F). On March 18, 2008, the
claimant was awarded a closed period of disability from October 2005
through October 2006 for the injury. On that date the claimant signed
a request for a closed period form that stated “the claimant agrees that
medical improvement has occurred” (Exhibit B4A and B6D). The
claimant testified at her July 2010 hearing that she did sign the form
requesting a closed period of disability with medical improvement and
in fact that nothing in her condition had changed since the day she
signed the form and her previously alleged onset date of March 20,
2008. As such, it is a reasonable inference from this evidence that
medical improvement did occur from her October 2005 work-place
injury and continued on until at least March 2008. The record shows
January 2009 diagnostic imaging revealed an intact fusion with mild
narrowing and shallow disc protrusion at the C5-6 disc without neural
impingement of the cervical spinal cord and wide clavicle resection of
the left shoulder with slightly elevated humeral head but intact joint
with no evidence of residual or recurrent rotator cuff tear,
subscapularis tendinopathy, or impingement. Clinical examination
showed decreased range of motion of the claimant’s cervical spine and
left shoulder but intact grip strength in both upper extremities (Exhibit
B6F). In April 2009, Dr. Cornelius, a treating physician for the
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claimant, reported the claimant’s physical position was similar to that
of her MMPI finding two years earlier with hypersensitivity in the left
scapula but examination showing inconsistent reports in the
claimant’s range of motion of her left arm and ability to palpate along
the left upper extremity without difficulty (Exhibit B7F). The
following month, the claimant reported she was able to take a trip
down to Mobile, Alabama with her sister and managed the trip well
and was able to enjoy herself (Exhibit B13F). The undersigned notes
the distance for this trip would have been over 300 miles and four
hours driving time one way indicating the ability to sit and travel for an
extended period of time. Additionally, treatment records in August
2009 noted the claimant was able to walk with a normal gait while
wearing heeled shoes and maneuver a six and [a] half pound purse on
her right arm. Dr. Cornelius noted in November 2009 that the pattern
of pain demonstrated and reported by the claimant was unlikely to be
significant for spinal pathology such as a herniated disc. Furthermore,
the claimant continued to demonstrate a normal gait in early 2010
despite her continu[ing] to wear heeled platform shoes (Exhibit B13F).
The undersigned also notes the record contains consultative
examinations conducted after the claimant’s date last insured and
finds this evidence further clarifies the picture in terms of the
claimant’s physical functioning as it gives a reference to what the level
of functioning continued to be after December 31, 2009. In August
2010, Dr. Norwood examined the claimant and found no neurological
deficits. While the claimant demonstrated variable power in testing
left arm and shoulder, Dr. Norwood noted with distraction and
repeated testing the claimant was able to show normal strength in all
muscle groups of left arm including the left shoulder girdle muscles
and the claimant’s reports of variable pinprick appreciation over the
left arm were without consistent findings. In fact, clinical examination
also showed good range of motion of the neck, low back, hips, knees,
ankles, and right shoulder and arm, minimally antalgic gait, normal
strength in the right upper extremity and lower extremities bilaterally,
normal muscle tone and bulk in all extremities, no muscle spasm,
ability to walk on heels and toes independently, arise from sitting
position without assistance, oppose both thumbs and make fists
bilaterally, use hand independently to open and close handicapped
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accessible door and button and/or unbutton buttons, and her strength
remained good even after repetitive exercise. Additionally, Dr.
Norwood administered nerve conduction and EMG studies on the
claimant’s left arm with result showing no evidence of left cervical
radiculopathy, left carpal tunnel syndrome, or other neuropathy in the
left arm (Exhibit B16F). Furthermore, the undersigned notes his
evidence is consistent with the subsequent findings on the claimant’s
October 2012 consultative examination which revealed only limited
range of motion in the claimant’s shoulders with normal range of
motion in her neck, elbows, lumbar spine, hips, knees, and ankles with
intact sensation to pin prick, position, and vibration (Exhibit B19F).
Thus the undersigned finds the objective medical evidence does not
demonstrate abnormalities which would interfere with the claimant's
ability to perform the range of work identified above for the time
period in question.
The course of medical treatment and the use of medication in this case
are not consistent with disabling levels of pain and other complaints.
While the claimant alleges disability in April 2009, review of the
record shows the claimant had not been seen by Dr. Berke, treating
physician, for over a year and a half before she was treated in January
2009 for reports of neck and left shoulder pain reaching a 6/10 pain
level (Exhibit B6F). The record shows the claimant also sought
treatment in January 2009 from Dr. Cornelius, pain management
specialist, with reports of overdoing it with working around the house.
There was no additional treatment sought by the claimant until April
2009 when the claimant was treated for emotional distress and suicidal
ideation, but in an effort to accurately assess the claimant’s condition,
Dr. Cornelius also examined the claimant and noted the claimant’s
physical functioning was similar to that of her MMPI evaluation two
years prior and her issues seemed to stem mostly from increasing
mental symptoms. Despite this episode, the record shows the
claimant improved to the point that she was able to make a trip with
her sister to Mobile, Alabama with no significant difficulties in May
2009 and then in August 2009 the claimant reported she was able to
perform household chores and attend church services on a regular
basis. Treatment records show significant improvement in the
claimant’s reported symptoms with the claimant reporting a 50
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percent improvement in her pain levels in November 2009 resulting in
her feeling like her old self. This improvement continued through
December 31, 2009 with the claimant reporting on 5/10 pain levels as
of January 2010 and an upwards of 60 percent improvement in pain
levels with her condition noted as stable as of April 2010 (Exhibits B7F
and B13F). Furthermore, there is no indication in these treatment
notes that the claimant requested frequent changes to her medication
regime or sought alternative treatment modality, such as referral for
biofeedback, a TENS unit, or physical therapy if the prescribed
medications were not effective. Therefore, the undersigned finds that
the course of medical treatment in this case does not bolster the
claimant’s credibility with respect to the degree of her pain and other
subjective complaints.
The claimant reported inconsistent abilities in her daily activities
report and the undersigned finds these reports are inconsistent with
disabling levels of pain. While the claimant reported in her disability
paperwork that pain affected her ability to independently perform
personal care items and do household chores, the record shows the
claimant reported to treating physicians that she was in fact able to
perform some household chores and other activities of daily living. In
January 2009, the claimant reported overdoing it working around the
house and then as of August 2009 she reported cleaning bathrooms,
dusting, and doing other activities of daily living. Additionally,
treatment records noted the claimant was consistently very well
groomed with jewelry on each finger, hair fixed, nails done, and full
makeup applied. The claimant was also noted to frequently wear
heeled platform shoes and be able to maneuver a purse weighing over
six pounds with no difficulties in her gait indicated (Exhibits B7F,
B13F, and B21F). Furthermore, the record shows the claimant
reported being able to prepare simple meals, drive, shop in stores,
handle money accounts, watch television, and read (Exhibits B4E and
B8F). The undersigned finds the claimant’s reported daily activities
show the claimant is not as limited as she has alleged and thus do not
add credibility to the claimant’s allegations that her impairments
prevent her from being able to perform any type of work activity.
...
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Finally, 20 C.F.R. 404.1529 requires the undersigned to consider the
claimant’s work history in assessing her credibility. The claimant’s
earnings record shows very low lifetime earnings with a significant
break of at least two years prior to her returning to work in 2004
(Exhibit B9D). The record shows the claimant was injured in an
October 2005 work-related injury for which she requested a closed
period of disability for one year and received a workers’ compensation
settlement in the amount of $80,000 with continuing medical
coverage in January 2008 (Exhibits B5D and B6D). Despite the
claimant’s stipulation of medical improvement after October 2006 and
testimony that [her] condition remained relatively the same up until at
least March 2008, the claimant did not return to work. However,
treatment records do note the claimant consistently reported in 2009
and 2010 that she remained mostly at home attending to the duties
about the house and being able to drive herself unencumbered from
distances as great as Birmingham, Alabama, some one to two hours
away (Exhibits B7F and B13F). Additionally, the undersigned notes
the record contains reports by the claimant’s husband noting the
claimant did all the business account work for his business at one point
but it is unclear so [sic] to the time period in which she performed this
work activity (Exhibits B17F and hearing). Furthermore, treatment
records show in January 2012 the claimant requested information on
Vocational Rehabilitation training and state she had started putting in
applications at local facilities, including nursing homes, looking for
employment (Exhibit B21F). As such, the undersigned finds that the
claimant’s work history does not lend great support to the credibility
of her statements about her inability to work because of her pain and
other subjective complaints.
As for the opinion evidence, the undersigned notes the record
contains medical source statements from multiple parties and all the
statements have been reviewed and considered by the undersigned. In
April 2013, Dr. Ragland, the claimant’s general practitioner, opined
the claimant would be unable to perform any work on an eight-hour
per day or forty-hour per week basis and she would miss work more
than two days per month on average and be unable to concentrate and
stay a [sic] task for two hour periods of time (Exhibit B26F). The
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undersigned gives little weight to Dr. Ragland’s opinion as it is not
consistent with her own treatment records or the medical evidence as
a whole for the time period in question. Dr. Ragland treated the
claimant in May 2008 for poison oak exposure at which time the
claimant requested weight loss medication and made no complaints of
severe pain or frequent symptoms that would support Dr. Ragland’s
April 2013 opinion (Exhibit B5F). Furthermore, Dr. Ragland’s
subsequent treatment of the claimant in March 2009, the month prior
to the claimant’s alleged onset date, show[s] she only complained of
cold-like symptoms including congestion and cough (Exhibit B12F).
As such, the undersigned does not find Dr. Ragland’s opinion in
regards to the time period in question for this decision. Additionally,
the undersigned notes the record contains a medical source statement
regarding the claimant’s physical functioning by Dr. Norwood,
consultative neurologist. Dr. Norwood opined in August 2010 that
the claimant could lift and/or carry 50 pounds frequently and 100
pounds occasionally, sit for two hours in an eight-hour workday. He
further opined the claimant could frequently climb ladders and stairs
and continuously reach, overhead reach, handle[,] finger, feel, push,
pull, use foot controls, and perform postural maneuvers based upon
finding no clear radicular features or evidence of neurologic deficit on
examination or diagnostic testing (Exhibit B16F). The undersigned
has considered Dr. Norwood’s opinion and gives it some weight due
to his specialization in this field of medicine leaving him well qualified
to evaluate restrictions from a neurologic perspective and also the
opinion’s consistency with Dr. Norwood’s own examination of the
claimant. However, the undersigned finds the record as a whole
shows abnormalities on clinical examination and objective diagnostic
imaging that support the claimant’s functioning was more limited as of
December 2009 than expressed in Dr. Norwood’s opinion.
...
Accordingly, based upon the substantial weight of the objective
medical evidence, the claimant’s course of treatment, her level of daily
activity, her work history, and the medical source opinions of record,
which have been given appropriate weight for the reasons cited above,
Page 18 of 33
the undersigned finds that the claimant retains the residual functional
capacity for the reduced range of light work identified above.
(Tr. at 24-30).
The plaintiff asserts that the ALJ failed “to recognize Fell’s subjective
complaints that are consistent with the diagnosis of CRPS.” (Doc. 14, p. 8). She
points out that SSR 03-2p recognizes that one of the characteristics of CRPS is
complaint of pain disproportional to the severity of the precipitating injury or
condition. From this, she contends that it is not surprising that she has severe pain
even with little evidence of a physical condition that can cause pain.
The ALJ noted that the plaintiff had the severe impairment of CRPS along
with anxiety and depression. (Tr. at 22). She also noted that “the claimant’s
medically determinable impairments could reasonably be expected to cause some of
the alleged symptoms. . . .” (Tr. at 25). The ALJ did not ignore the plaintiff’s
CRPS determination. In this case, the plaintiff’s severe impairment is one which is
recognized to be difficult to diagnose and the medical records of which may include
transient or irregular findings of a variety of symptoms, one of which is a presence
of more severe pain than “should” be caused by an underlying injury. However,
SSR 03-2p discussing CRPS is clear that the presence of a severe medically
determinable impairment alone is not sufficient to require a finding of disability.
Page 19 of 33
The plaintiff’s symptoms and limitations must be evaluated in the same way
symptoms and limitations are evaluated for any other medically determinable
limitation that does not meet or equal a listing. Merely the existence of CRPS does
not dictate a finding of disability; the ALJ must still determine whether the
condition precludes gainful employment.
The plaintiff also argues that the ALJ inappropriately applied the Eleventh
Circuit’s pain standard to the plaintiff’s subjective allegations of disabling pain.
Subjective testimony of pain and other symptoms may establish the presence of a
disabling impairment if it is supported by medical evidence. See Foote v. Chater, 67
F.3d 1553, 1561 (11th Cir. 1995). To establish disability based upon pain and other
subjective symptoms, “[t]he pain standard requires (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 pain.” Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)); see
also Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986). The ALJ is permitted
to discredit the claimant’s subjective testimony of pain and other symptoms if she
articulates explicit and adequate reasons for doing so. Wilson v. Barnhart, 284 F.3d
Page 20 of 33
1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul. 96-7p, 1996 WL 374186 (1996)
(“[T]he adjudicator must carefully consider the individual’s statements about
symptoms with the rest of the relevant evidence in the case record in reaching a
conclusion about the credibility of the individual’s statements.”). Although the
Eleventh Circuit does not require explicit findings as to a claimant’s credibility,
“‘the implication must be obvious to the reviewing court.’” Dyer, 395 F.3d at 1210
(quoting Foote, 67 F.3d at 1562). “[P]articular phrases or formulations” do not
have to be cited in an ALJ’s credibility determination, but it cannot be a “broad
rejection which is “not enough to enable [the district court or this Court] to
conclude that [the ALJ] considered her medical condition as a whole.” Id.
The ALJ determined that the plaintiff in the instant case met the first step of
the pain standard, that she provided evidence of an underlying medical condition.
See Dyer, 395 at 1210. However, the ALJ found that the plaintiff failed either to
show objective medical evidence that confirms the severity of the pain or that the
medical condition is of such a severity that it can be reasonably expected to give rise
to the alleged pain. Id. The ALJ explained that the plaintiff’s subjective testimony
of pain was inconsistent with the medical record, as well as her description of her
daily activities. As set out above, the ALJ cited both the medical record as well as
the plaintiff’s own testimony to support her determination that the plaintiff’s
Page 21 of 33
subjective pain testimony is not credible. The determination of credibility is left to
the ALJ and the ALJ is entitled to discredit the plaintiff’s credibility so long as she
articulates explicit and adequate reasons for doing so. Here, the ALJ meets her
burden. The ALJ did not improperly analyze the plaintiff’s CRPS under SSR 032p.
B. Medical Source Opinions
The plaintiff also finds fault in the ALJ’s determination based on her analysis
of medical source opinions, including the plaintiff’s treating physicians Dr. Doleys
and Vanessa Ragland, D.O.
A treating physician’s testimony is entitled to
“substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)
(quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal
quotations omitted). The weight to be afforded a medical opinion regarding the
nature and severity of a claimant’s impairments depends, among other things, upon
the examining and treating relationship the medical source had with the claimant,
the evidence the medical source presents to support the opinion, how consistent
the opinion is with the record as a whole, and the specialty of the medical source.
See 20 C.F.R. §§ 404.1527(d), 416.927(d). Furthermore, “good cause” exists for
an ALJ to not give a treating physician’s opinion substantial weight when the
Page 22 of 33
“(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) (citing Lewis, 125 F.3d at 1440); see also Edwards v.
Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good cause” existed
where the opinion was contradicted by other notations in the physician’s own
record).
The court must also keep in mind that opinions such as whether a claimant is
disabled, the claimant’s residual functional capacity, and the application of
vocational factors “are not medical opinions, . . . but are, instead, opinions on
issues reserved to the Commissioner because they are administrative findings that
are dispositive of a case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). The Court is interested in the
doctors’ evaluations of the claimant’s “condition and the medical consequences
thereof, not their opinions of the legal consequences of his [or her] condition.”
Lewis, 125 F.3d at 1440. Such statements by a physician are relevant to the ALJ’s
findings, but they are not determinative, as it is the ALJ who bears the
responsibility for assessing a claimant’s residual functional capacity. See, e.g., 20
C.F.R. § 404.1546(c).
Page 23 of 33
On July 20, 2010, Dr. Doleys completed a medical source statement noting
that he had seen the plaintiff every 2-3 months from April 2009. (Tr. at 478). He
opined that the plaintiff would not be able to sustain work activity for a regular 40hour work week. Id. The ALJ addressed Dr. Doleys’ opinion as follows:
In regards to the claimant’s mental functioning, the record shows
several medical source opinions from different sources. However,
review of the record as a whole shows the claimant’s mental
functioning declined in April 2009 for a very short period of time due
to lack of proper treatment and therapy, but significantly improved
after completing a treatment program and she functions with
moderate mental impairment on a continuing basis. The undersigned
gives little weight to Dr. Doley[s’] July 2010 opinion that the claimant
cannot sustain work activity on a regular and continuing basis, as
neither the complete record nor Dr. Doley[s’] own records support
this conclusion (Exhibit B14F). This opinion is not a specific
assessment of the nature and severity of the claimant’s impairments
and based solely upon the subjective reports of symptoms and
limitations provided to him by the claimant. Yet, as explained
elsewhere in this decision, there exist good reasons for questioning the
reliability of the claimant’s subjective complaints. Furthermore, Dr.
Doley[s’] own reports chronicle the claimant with a history of
posturing and within a few months of expressing his opinion, Dr.
Doley[s] noted the claimant reported significant improvement since
treatment began with increased activities. Due to the inconsistencies
of the record and the doctor’s opinion, Dr. Doley[s’] opinion is
accordingly rendered less persuasive.
(Tr. at 29). In short, the ALJ found that Dr. Doley’s opinion that plaintiff could
not work was inconsistent with his own treatment notes of her, supplying good
cause to give less weight to the opinion.
Page 24 of 33
The plaintiff was hospitalized for suicidal ideation on April 3, 2009. (Tr. at
415). After the plaintiff was released from the hospital, Dr. Doleys reported that
the plaintiff exhibited emotional improvement, but not improved physical
functioning. (Tr. at 480). Dr. Doleys recommended that the plaintiff continue
out-patient treatment. Id. The plaintiff’s first visit to Dr. Doleys was on August
10, 2009, during which the plaintiff reported cleaning bathrooms, dusting, and
other activities of daily living that her medication enabled her to do. (Tr. at 471).
The plaintiff also reported avoiding crowds and fear of touch. Id. Dr. Doleys
stated that the plaintiff suffered from “activity avoidance and anticipatory pain.”
Id.
On November 4, 2009, Dr. Doleys noted that the plaintiff’s affect was
“strained,” but less tearful than past visits. (Tr. at 469). On January 27, 2010
(only a month after plaintiff’s last date insured), Dr. Doleys noted that the plaintiff
“continues to report that she is 50% improved.” (Tr. at 465). The plaintiff also
rated her pain at 5/10, and stated she was “substantially better” on Effexor. Id.
The plaintiff’s “[m]ood was much more stable” than it had been in the past. (Tr.
at 465-66). On April 21, 2010, Dr. Doleys stated that the plaintiff avoids a good
deal of social contact and remains mostly at home “attending to duties about the
house.” (Tr. at 462). He also stated that the plaintiff “continues to have a more
stable mood th[a]n when she was first seen,” and that her condition was stable. Id.
Page 25 of 33
Dr. Doleys stated in his note from July 9, 2010, that the plaintiff was not
anticipated to improve significantly, that she is “incapacitated” for 2 to 3 days per
week and avoids crowds, but the plaintiff drove without problems to the doctor’s
office in Birmingham. (Tr. at 457).
On January 25, 2011, Dr. Doleys noted that the plaintiff had begun reducing
her opioid pain medication and exhibited minimal pain behavior with some
apprehensiveness and anxiousness. (Tr. at 554). On July 7, 2011, the plaintiff
“continue[d] to do fairly well” on her medication and was not particularly
depressed, despite appearing fairly anxious. (Tr. at 547). On January 4, 2012, Dr.
Doleys noted that the plaintiff was doing “fairly well,” had no signs of
psychological distress, and was discussing her need for a job. (Tr. at 545). In his
notes from March 20, 2012, Dr. Doleys noted that the plaintiff has moderate to
severe depression with ongoing pharmacological management. (Tr. at 542). On
September 5, 2012, Dr. Doleys noted that the plaintiff was somewhat sullen, but
that she exhibited minimal pain behaviors and used no assistive devices. (Tr. at
534). A survey of Doleys’ medical records indicates that the ALJ’s findings with
regard to Doleys’ opinion statement is supported by substantial evidence
On April 9, 2013, Dr. Ragland, the plaintiff’s general practitioner, wrote a
letter detailing her assessment of the plaintiff’s health. She noted that the plaintiff
Page 26 of 33
suffers from depression and anxiety resulting from chronic pain. (Tr. at 590). Dr.
Ragland opined that the plaintiff would miss more than two days per month of work
and is unable to stay on task for two hours at a time. Id. The ALJ also addressed
Ragland’s opinion letter:
In April 2013, Dr. Ragland, the claimant’s general practitioner, opined
the claimant would be unable to perform any work on an eight-hour
per day or forty-hour per week basis and she would miss work more
than two days per month on average and be unable to concentrate and
stay [on] a task for two hour periods of time (Exhibit B26F). The
undersigned gives little weight to Dr. Ragland’s opinion as it is not
consistent with her own treatment records or the medical evidence as
a whole for the time period in question. Dr. Ragland treated the
claimant in May 2008 for poison oak exposure at which time the
claimant requested weight loss medication and made no complaints of
severe pain or frequent symptoms that would support Dr. Ragland’s
April 2013 opinion (Exhibit B5F). Furthermore, Dr. Ragland’s
subsequent treatment of the claimant in March 2009, the month prior
to the claimant’s alleged onset date, show she only complained of
cold-like symptoms including congestion and cough (Exhibit B12F).
As such, the undersigned does not find Dr. Ragland’s own treatment
records nor the objective medical evidence as a whole support Dr.
Ragland’s opinion in regards to the time period in question for this
decision.
(Tr. at 28-29).
The plaintiff saw Dr. Ragland on March 9, 2007, and did not report
depression or anxiety during her appointment. (Tr. at 400). On January 6 and
January 23, 2008, the plaintiff saw Dr. Ragland for ear pain. (Tr. at 398-99). She
Page 27 of 33
reported no depression or anxiety at her January 6 visit, and no notes were made for
the January 23 visit. Id. The plaintiff also reported no anxiety or depression on
May 6 or May 16, 2008. (Tr. at 396). On September 16, 2008, the plaintiff saw Dr.
Ragland and reported no anxiety or depression. (Tr. at 395). On March 21, 2009,
the plaintiff saw Dr. Ragland for sinus congestion, cough, and headache, but
reported no anxiety, depression, or severe pain. (Tr. at 456).
The plaintiff
reported no anxiety, depression, or severe pain on September 8 or September 14,
2011. (Tr. at 519-20). On July 13, 2012, the plaintiff saw Ragland for menopause
symptoms. (Tr. at 518). The plaintiff visited Ragland on August 23, 2012, and
reported abdominal pain. (Tr. at 517). Ragland’s notes indicate that she suspects
gallbladder issues. Id.
In her notes from February 5, 2013, Dr. Ragland assessed the plaintiff as
having menopause syndrome, muscle pain, chest pain, and joint pain at multiple
sites. (Tr. at 591). The plaintiff was instructed to continue her medication and was
referred to a rheumatologist for evaluation. (Tr. at 591-92). Dr. Ragland signed-off
on notes on February 25, 2013, and the plaintiff came in for a procedure related to
menopause. (Tr. at 593). Again, a longitudinal examination of the Dr. Ragland’s
Records indicates that the ALJ’s findings are supported by substantial evidence.
Page 28 of 33
There simply is nothing recorded in Dr. Ragland’s treatment notes indicating the
plaintiff suffered from a debilitating medical or psychological condition.
The plaintiff contends that the ALJ erred in her evaluation of the opinions of
consulting psychologist Bonnie Atkinson. 1 The ALJ said of Atkinson’s opinion
that “[t]he undersigned also gives little weight to the June 2009 opinion by Dr.
Atkinson, consultative psychologist indicating the claimant did not have sufficient
judgment to make acceptable work decisions or manage her own funds as evidence
of record received after this opinion was provided shows the claimant is not as
limited as expressed in this opinion (Exhibit B8F).” (Tr. at 29). The plaintiff
contends that the ALJ failed to evaluate Atkinson’s opinion as it relates to the
plaintiff’s mental functioning. This argument is without merit, however, because
the ALJ clearly discussed Atkinson’s opinion and determined, specifically, that
later records showed that the plaintiff’s abilities were not as limited as Atkinson
opined. (Tr. at 29). The ALJ was within her discretion to give little or no weight to
Atkinson’s assessment because it was inconsistent with other psychological
evidence and plaintiff’s own testimony concerning her daily acitvities.
The plaintiff takes issue with the ALJ’s failure to go into more detail about
Atkinson’s report, particularly Atkinson’s diagnosis of Chronic Pain Disorder.
1
The plaintiff also states that the ALJ gave some weight to consulting psychologist Barry Wood.
However, the ALJ states that Wood’s opinion, along with that of state agency psychological
consultant Dr. Estock, are most consistent with the evidence in the record.
Page 29 of 33
However, the fact that the ALJ did not go into detail does not constitute a failure to
consider Atkinson’s opinion. The ALJ is not required to refer to every piece of
evidence in her determination so long as her denial of the plaintiff’s claim is not an
arbitrary dismissal that does not consider the plaintiff’s medical condition as a
whole. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (internal citations
omitted). A review of the ALJ’s RFC determination persuades the court that the
ALJ did consider the plaintiff’s medical condition as a whole. Accordingly, the
ALJ’s findings regarding Atkinson’s opinion are supported by substantial evidence.
C. Third-Party Testimony
Finally, the plaintiff argues that the ALJ failed to properly address the thirdparty function report and testimony by the plaintiff’s husband, William Fell. The
plaintiff argues that, though the ALJ determined that Fell’s testimony was not
credible, she failed to articulate specific reasons for the determination. As for
Fell’s testimony, the ALJ stated that,
The claimant’s husband, William Fell, also testified at the hearing and
stated the claimant use[d] to handle paperwork for his company, but
she has experienced a decline in mental functioning to the point she
cannot comprehend instructions. Additionally, he stated the claimant
need[s] her medications fixed for her with someone to check up on her
to make sure she took as prescribed. The claimant’s husband also
testified the claimant could not drive and spent her time reading her
Bible, sitting in the recliner or sofa, riding around in the car with her
husband, and then lying down. The claimant’s husband further
Page 30 of 33
testified he does not like to leave the claimant alone and he would take
her to work with him or have one of his employees go an[d] check on
her if he was unable to leave work himself.
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments could reasonably
be expected to cause some of the alleged symptoms; however, the
claimant’s and her husband’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.
(Tr. at 25).
Third-party testimony by a lay-person is considered “other source”
testimony in the Code of Federal Regulations.
20 C.F.R. § 404.1513(d)(4).
According to the C.F.R., such evidence may be used “to show the severity of [the
claimant’s] impairment(s) and how it affects your ability to work.” 20 C.F.R.
§ 404.1513(d).
Such evidence is owed no particular weight under the rules.
Accordingly, it is within the purview of the ALJ to determine that the testimony of
the plaintiff’s husband is not credible. Social Security Ruling (SSR) 06-3p further
addresses the evaluation of such evidence, explaining:
In considering evidence from “non-medical sources” who have not
seen the individual in a professional capacity in connection with their
impairments, such as spouses, parents, friends, and neighbors, it
would be appropriate to consider such factors as the nature and extent
of the relationship, whether the evidence is consistent with other
evidence, and any other factors that tend to support or refute the
evidence.
Page 31 of 33
Explanation of the Consideration Given to Opinions From “Other
Sources”
Since there is a requirement to consider all relevant evidence in an
individual’s case record, the case record should reflect the
consideration of opinions from medical sources who are not
“acceptable medical sources” and from “non-medical sources” who
have seen the claimant in their professional capacity. Although there
is a distinction between what an adjudicator must consider and what
the adjudicator must explain in the disability determination or
decision, the adjudicator generally should explain the weight given to
opinions from these “other sources,” or otherwise ensure that the
discussion of the evidence in the determination or decision allows a
claimant or subsequent reviewer to follow the adjudicator’s reasoning,
when such opinions may have an effect on the outcome of the case.
SSR 06-03p, Titles II and XVI:II and XVI: Considering Opinions and Other
Evidence From Sources Who are not “Acceptable Medical Sources” in Disability
Claims; Considering Decisions on Disability by Other Governmental and
Nongovernmental Agencies, 2006 WL 2329939 (August 9, 2006).
Although the ALJ did not explain precisely which elements of Fell’s
testimony conflict with certain medical evidence in the record, the ALJ did note
that she found the testimony not to be credible in a way that is sufficient to allow
the court to follow the ALJ’s reasoning, fulfilling her obligation under 20 C.F.R.
§ 404.1513 and SSR 06-03p.
Page 32 of 33
IV.
Conclusion
Upon review of the administrative record, and considering all of Ms. Fell’s
arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered affirming the Commissioner’s determination and dismissing this action.
DONE this 28th day of September, 2016.
_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
Page 33 of 33
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