Midkiff v. Astrue

Filing 20

Order ent. that the decision of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits and supplemental security income, be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 3/26/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ROBERT L. MIDKIFF,

*
*
Plaintiff,
*
*
vs.
*
*
MICHAEL J. ASTRUE, Commissioner *
of Social Security,
*
*
Defendant.
*

CIVIL ACTION 11-00053-B

ORDER
Plaintiff

Robert

L.

Midkiff

(“Plaintiff”

or

“Midkiff”)

brings this action seeking judicial review of a final decision
of the Commissioner of Social Security denying his claim for
disability insurance benefits and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. ''
401 et seq., and 1381 et seq.
consented

to

proceedings

have

in

this

the

On November 2, 2011, the parties

undersigned

case.

(Doc.

17).

conduct

any

and

all

Thus,

this

case

was

referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Fed.R.Civ.P.
careful

73.

(Doc.

consideration

19).
of

Oral

the

argument

administrative

was

waived.

record

and

Upon
the

memoranda of the parties, it is ORDERED that the decision of the
Commissioner be REVERSED and REMANDED.

1

I.

Procedural History
Plaintiff,

on

November

15,

2007,

protectively

filed

applications for disability insurance benefits and supplemental
security income, wherein he alleges that he has been disabled
since

April

30,

2004,

due

to

back

injury,

stenosis, and a narrowing/ bulging disc.
Plaintiff’s

earnings

record

shows

central

canal

(Tr. 62-65, 74, 170).

that

he

has

sufficient

quarters of coverage to remain insured through December 31, 2009
(his “date last insured”), and that he was insured through that
date.

(Id. 159-61). His applications were denied at the initial

stage and upon reconsideration.
Plaintiff

filed

a

(Id. at 66-77).

timely

Request

for

Hearing

Administrative Law Judge (“ALJ”). (Tr. 78-83).

before

an

On December 9,

2009, Administrative Law Judge Joseph T. Scruton (“the ALJ”)
held an administrative hearing, which was attended by Plaintiff,
his representative, and vocational expert Sue Berthaume.
at 27-61).

(Id.

On February 3, 2010, the ALJ issued an unfavorable

decision finding that Plaintiff is not disabled.

(Id. at 9-26).

Plaintiff=s request for review was denied by the Appeals Council
(“AC”) on December 6, 2010.

(Id. at 1-5).

The ALJ=s decision

became the final decision of the Commissioner in accordance with
20 C.F.R. ' 404.981.

(Id.)

The parties agree that this case is

now ripe for judicial review and is properly before this Court
pursuant to 42 U.S.C. '' 405(g) and 1383(c)(3).

2

II.

Issues on Appeal

A.

Whether the ALJ failed to assign proper
opinions of Plaintiff’s treating physician?

B.

Whether the ALJ’s RFC determination was supported by the
record?

C.

Whether
record?

the

ALJ

erred

by

failing

to

weight

fully

to

develop

the

the

III. Factual Background
Plaintiff was born on February 13, 1969, and was age forty
(40) at the time of the administrative hearing.

(Tr. 130, 133,

Plaintiff testified that he has an 8th grade education and

170).

last worked as a welder. (Id. at 33).

He has past relevant work

(APRW@) as a welder/fitter, insulator, roofer, and cashier.

(Id.

at 144, 176, 183).
Plaintiff testified that he injured his back in 2003 while
on the job1. (Id. at 34). According to Plaintiff, he last worked
in April 2004 because of constant pain in his lower back and
because

his

right

leg

“gives

out.”

(Id.

at

34,

36,

175).

Plaintiff also testified that he has had at least three seizures
but he did not seek any medical treatment for two of them. He
further testified that he takes Soma and Hydrocodone for his
back. Plaintiff indicated that both medications afford him some
relief; however, they make him drowsy. Plaintiff also testified
1

Plaintiff reported that he filed a Workman’s Compensation
claim and received a settlement. (Id. at 34)

3

that he takes Xanax for anxiety, but he does not see a therapist
or

mental

health

counselor.

(Id.

at

34-36).

According

to

Plaintiff, when he uses his medication, his pain level is 7 out
of 10, but without his medication, his pain “verges on a nine.”
(Id. at 37).
Plaintiff testified that he is able to care for himself,
and do some light housekeeping, such as laundry, dishwashing and
cooking, but that he is unable to vacuum or sweep. (Id. at 39).
Plaintiff also testified that he is able to take out of town
trips by car, but he requires breaks because of his back pain.
(Id. at 49).

Plaintiff also reported that his orthopedic doctor

advised against surgery on his back and while Dr. Prasad has
advised him to get a back brace to reduce his pain by 25%, he
has not been able to afford the brace. Plaintiff admitted that
he had not conducted any research regarding organizations or
resources that might help him to purchase the brace. (Id. at
43).
IV.

Analysis
A.

Standard Of Review

In reviewing claims brought under the Act, this Court=s role
is a limited one.
1)

whether

the

The Court=s review is limited to determining
decision

of

the

Secretary

is

supported

by

substantial evidence and 2) whether the correct legal standards
were applied.

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th

4

Cir. 1990).2
evidence,

A court may not decide the facts anew, reweigh the

or

Commissioner.
1986).

substitute

its

judgment

for

that

of

the

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.

The Commissioner=s findings of fact must be affirmed if

they are based upon substantial evidence.

Brown v. Sullivan,

921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler,
703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial

evidence is defined as Amore than a scintilla but less than a
preponderance@
reasonable

and

consists

person

conclusion[]@).

would
In

Asuch

of

accept

determining

as

relevant

evidence

adequate

to

whether

as

a

support

a

substantial

evidence

exists, a court must view the record as a whole, taking into
account

evidence

favorable,

Commissioner=s decision.

as

well

as

unfavorable,

to

the

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163
(S.D. Ala. 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

416.912.
substantial

prove

his

disability.

20

C.F.R.

''

404.1512,

Disability is defined as the Ainability to do any
gainful

activity

by

2

reason

of

any

medically

This Court=s review of the Commissioner=s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).

5

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.@
U.S.C.

''

423(d)(1)(A),

404.1505(a),

416.905(a).

The

42

Social

Security regulations provide a five-step sequential evaluation
process for determining if a claimant has proven her disability.
20 C.F.R. '' 404.1520, 416.920.3

3

The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
impairment or combination of impairments. If, at the third step,
the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; (4) the claimant=s
age, education and work history. Id. at 1005. Once a claimant
meets this burden, it becomes the Commissioner=s burden to prove
at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
significant numbers in the national economy, given the claimant=s
residual functional capacity, age, education, and work history.
Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
If the
Commissioner can demonstrate that there are such jobs the
claimant can perform, the claimant must prove inability to
perform those jobs in order to be found disabled.
Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

6

In the case sub judice, the ALJ determined that Plaintiff
has

not

engaged

in

alleged onset date.

substantial
(Tr. 14).

gainful

activity

since

his

The ALJ concluded that while

Plaintiff has the severe impairments of lumbar disc syndrome and
a history of seizures, anxiety, and depression, they do not meet
or

medically

equal

the

criteria

for

any

of

the

impairments

listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulations No.
4.

(Id. at 22).

Relying on the testimony of the vocational

expert (“VE”) and other evidence of record, the ALJ determined
that Plaintiff retains the residual functional capacity (“RFC”)
to:
perform the exertional requirements of
sedentary work (lift, carry, sit, stand,
walk) as defined in 20 C.F.R. 404.1567(a)
and 416.967(a). However, the claimant has
non-exertional limitations as well in that
he can never operate foot controls with his
right lower extremity. He is restricted to
rarely climbing stairs and ramps, and rarely
kneeling, crouching and crawling. He can
perform no more than occasional balancing
and stooping. He can never climb scaffolds
and ladders. He must avoid all exposure to
work place hazards, such as unprotected
heights, moving mechanical parts, dangerous
machinery, and operating a motor vehicle. He
can understand, remember and carry out no
more than short, simple instructions and
some detailed instructions.
(Id. at 16). The ALJ next determined that Plaintiff=s impairments
could reasonably be expected to cause the alleged symptoms but
that his statements concerning the intensity, persistence and

7

limiting effects of the alleged symptoms were not credible to
the extent they are inconsistent with the RFC assessment.

(Id.)

The ALJ concluded that while Plaintiff cannot perform any of his
past

work,

he

significant

is

capable

numbers

surveillance

in

systems

of

performing

the

jobs

national

monitor,

that

unskilled

in

such

economy,

exist

as

assembler,

which

includes egg processor, and microfilm document preparer. (Id. at
20-1).
The
injured

relevant
his

back

evidence
while

of

at

record

work

on

reflects
October

that

20,

Plaintiff

2003,

while

working as a welder. (Tr. 138-51). On March 16, 2004, a MRI of
Plaintiff’s lumbar spine showed satisfactory alignment and that
the intervertebral discs were maintained. No pars defects were
noted, and the paraspinous soft tissues were normal. (Id. at
225, 227). Dr. Thomas Purser diagnosed a severe strain/sprain of
the lumbosacral spine and recommended that Plaintiff be off work
for four to six weeks for physical therapy and to give his back
a chance to heal. (Id. at 228).
On

April

27,

2004,

multiplanar

noninfusion

imaging

of

Plaintiff’s lumbar spine revealed as follows: “[b]road base disc
bulge with an asymmetrically prominent right lateral component
at L4-5. There is a resultant mild narrowing of the central
canal

and

bilateral

impingement.

Small

L4

foramina

central

disc

8

but

no

bulge

evidence
at

of

L5-S1

L4
with

root
an

associated outer annular tear. There is minor narrowing of the
central canal and mild L5 foraminal narrowing but no evidence of
root impingement.” (Id. at 230).

Radiological imaging from June

23, 2004, was compared to Plaintiff’s April 27, 2004 tests and
showed no interval changes since the prior exam. (Id. at 141,
226, 229).
Over a year later, on June 16, 2005, Plaintiff underwent
another MRI of the lumbar spine. The findings were as follows:
desiccation of disc material L5-S1 with small focal annual tear
and 2 mm posterior central bulging of disc material with slight
flattening of the anterior thecal sac margin at L5-S1. (Id. at
141-2; 233). Dr. Purser’s treatment notes dated May 24, 2006
reflect that an MRI of Plaintiff’s lumbosacral spine showed a
symmetrical bulge with prominent right lateral component of the
L4-5 with narrowed central canal with no evidence of L4 root
impingement. (Id. at 140).
Plaintiff

presented

to

the

emergency

department

of

Highland Community Hospital on August 1, 2007. He complained of
a seizure and was ambulatory upon arrival. The notes reflect
that Plaintiff refused an ambulance ride to the hospital. Upon
intake exam, Plaintiff was in no acute distress, was calm and
cooperative, and was awake, alert, and oriented times three;
however, Plaintiff left prior to medical screening by a doctor.
(Id. 237-9).

9

Ahmad

A.

Haidar,

M.D.

(hereinafter

“Dr.

Haidar”),

interviewed and examined Plaintiff at the request of the Agency
on February 27, 2008. (Id. at 241-5). Plaintiff reported that he
is in daily pain after a fall from work in 2003. Dr. Haidar’s
notes

reflect

that

Plaintiff

was

not

on

any

medications;

however, he reported that his medications are the only thing
which eases his pain. On exam, Dr. Haidar found that Plaintiff
had normal range of motion at the hips, knees, and ankles with
normal dorsi and plantar flexion. Straight leg raise tests were
negative bilaterally, and Plaintiff was able to walk on toes and
heels,

squat,

and

bend

forward

with

eight inches from the floor.

fingertips

approximately

Dr. Haidar diagnosed Plaintiff

with chronic lumbar pain.
Agency consultant Dr. Robert Culpepper completed a Medical
Consultant Review on

March 8, 2008 and found that Plaintiff’s

ailments were not severe and that Plaintiff’s complaints of pain
were

not

supported

by

medical

findings

or

clinical

medical

history. (Id. at 246-7).
Plaintiff

was

treated

by

Anil

Prasad,

M.D.

(hereinafter

“Dr. Prasad”), at Allied Medical Center for pain management from
at least September 27, 2005 to January 27, 2009. (Id. at 248-92;
298-303). His prescription medications included Lorcet 10 mg,
Soma 350 mg, and Xanax 2 mg. In 2005, Plaintiff was seen by Dr.
Prasad

on

September

27,

October

10

26,

and

November

23.

The

treatment notes from September 2005 reflect that Plaintiff used
a cane to ambulate. (Id. at 280). In 2006, Plaintiff was seen by
Dr. Prasad on June 28, August 16, September 13, September 26,
October 11, November 8, and December 6, and regularly reported
that his pain level was 8 or 9 out of 10. Dr. Prasad’s treatment
notes dated September 13, 2006 reflect that Plaintiff reported
that

he

went

a

month

without

taking

his

medications

due

to

theft. (Id. at 274). Plaintiff reported in October 2006 that his
pain was an 8 on a scale from 1 to 10 and that his leg gave out
causing him to fall on his knee. (Id. at 273). In November 2006,
Plaintiff was referred to physical therapy; however, the notes
reflect that as of December 2006, Plaintiff had not participated
in physical therapy. (Id. at 271-2).
Plaintiff presented to Dr. Prasad for monthly appointments
in 2007. During that time, Plaintiff reported his pain ranged
from 7 to 9 on a scale of 1 to 10. (Id. at 260-70). Dr. Prasad
opined

in

his

notes

that

with

medication,

Plaintiff

was

“clinically stable.” During his June 12, 2007 visit, Plaintiff
reported that he fell down steps and injured his shoulder and
back again. (Id. at 265). Treatment notes from September 2007
reflect that Plaintiff’s pain medications were working, that he
had no side effects, and that he was clinically stable. (Id. at
262).

11

Plaintiff continued to be treated by Dr. Prasad in 2008,
and reported that his pain ranged from a 6 to 9 on a scale of 1
to 10. Dr. Prasad’s treatment notes reflect that Plaintiff’s
pain medications were working and keeping him stable so that he
had “some quality of life.”(Id. at 259). Plaintiff reported, on
March 7, 2008, that his tailbone felt like it was “floating” and
that

it

“pops.”

(Id.

at

258).

On

a

visit

in

April

2008,

Plaintiff indicated that it was becoming harder for him to walk.
He requested a MRI, and April 10, 2008, a MRI of Plaintiff’s
lumbar spine was completed. The scan revealed “normal alignment
and

normal

marrow

signal

of

the

lumbar

vertebra.”

Mild

degenerative loss of disc signal was seen at the L4-5 level and
more pronounced at the L5-S1 level with no significant disc
space narrowing was seen. According to the MRI report, there is
generalized annular bulge and mild facet and ligamentum flavum
hypertrophy at the L4-5 level causing a mild degree of central
canal

stenosis

with

a

mild

to

moderate

encroachment

of

the

neural foramina bilaterally. However, no definite findings of
nerve root impingement were seen. (Id. at 292).
Treatment notes from a subsequent visit in May 2008 reflect
that Plaintiff reported it was becoming more difficult for him
to get out of a chair without back pain. Dr. Prasad noted that
Plaintiff still did not have the back brace that he recommended
to ease his back pain and that Plaintiff reported that he was

12

still shopping for one. (Id. at 256). Plaintiff continued to
report constant pain in his right leg on September 18, 2008, and
was advised to exercise and eat better. (Id. at 251). Plaintiff
denied any new acute symptoms during his October 9, 2008 visit
with Dr. Prasad; however, he reported tingling and numbness in
both feet. (Id. at 250).

Dr. Prasad’s treatment notes dated

January 27, 2009 reflect that Plaintiff’s pain symptoms were all
stable, and that his prescription medications were helping him
to achieve some quality of life.

(Id. at 248).

Plaintiff was treated for lumbar disc disease by Dr. Scott
Q.

Carver

on

two

(2)

administrative hearing.4

occasions

in

2009

prior

to

the

(Tr. 293-7). On March 20, 2009, Dr.

Carver reviewed Plaintiff’s prior MRI results and noted severe
deterioration of the L5-S1 joint space. Dr. Carver also noted
atrophy and weakness in Plaintiff’s right lower extremity, in
addition

to

bilateral

LS

paraspinous

tenderness.

Plaintiff’s

range of motion was noted as limited. Treatment notes from that
date indicate that Dr. Carver sought to taper Plaintiff off of

4

According to the documentation submitted to the AC,
Plaintiff was seen by Dr. Jason West, who is a doctor in Dr.
Carver’s office, on December 8, 2009, because Dr. Carver was not
present in the office. Plaintiff was subsequently treated by Dr.
Carver, however, on January 5 and March 5, 2010. (Id. at 31522).

13

Xanax so that he would only be taking Lortab and Soma. (Id. at
296).
Treatment

notes

dated

April

22,

2009,

reflect

that

Plaintiff indicated that he did not want to go back to Pain
Management. On exam, Plaintiff’s right straight leg test was
positive, and he was continued on Lorcet and Soma, but no Xanax.
(Id. at 294).
In a letter dated September 9, 2009, Dr. Carver indicated
he

was

Plaintiff’s

primary

care

physician,

and

opined

that:

“[Plaintiff] has been unable to work for several years. He has
difficulty

ambulating,

requires

medication

daily.

He

will

ultimately need some financial assistance or retraining.” (Id.
at 304). Subsequent thereto, Dr. Carver completed a Lumbar Spine
Residual Functional Capacity Questionnaire on November 9, 2009.5
In it, Dr. Carver opined that Plaintiff can only sit, stand, or
walk

for

employment

less

than

permitting

two

hours;

him

to

that

shift

Plaintiff

positions

would

need

will

from

at

walking, sitting, or standing; that Plaintiff would need to take
unscheduled

breaks

during

an

8-hour

workday;

that

Plaintiff

would need occasional use of a cane or assistive device; that
5

There are 2 RFC Questionnaires in the record dated
November 9, 2009. However, the first Questionnaire is not
complete. (Id. at 305-9). The second Questionnaire is complete;
thus, for the purposes of this Order, the Court will consider
the second Questionnaire in its analysis. (Id. at 310-14).

14

Plaintiff could frequently lift and carry 10 pounds or less,
occasionally lift and carry 20 pounds, and never lift and carry
50

pounds;

that

Plaintiff

could

rarely

twist,

stoop,

crouch/squat, climb stairs or ladders; and that Plaintiff would
likely miss more than four days per month from work. (Id. at
310-3).
1.

Whether the ALJ failed to assign proper
weight
to
Plaintiff’s
treating
physician?

Plaintiff contends that the RFC established by the ALJ is
not supported by substantial evidence. Plaintiff argues that in
rejecting the opinions expressed by Dr. Carver, his treating
physician, the ALJ failed to articulate the specific evidence
which indicates that Plaintiff is able to perform sedentary work
and there is no medical opinion, either by an examining or nonexamining

medical

source,

which

supports

the

ALJ’s

RFC

determination6. The Commissioner responds that the RFC assessment
is the exclusive domain of the ALJ, and the regulations do not
require

the

ALJ

medical opinion.

to

base

his

RFC

finding

on

any

particular

The Commissioner further contends that the

notes from the treating and examining physicians provide ample
6

Because the undersigned finds that the ALJ had good cause
for rejecting some of the opinions expressed by Plaintiff’s
treating physician, the Court need not address Plaintiff’s
contention that a treating physician’s opinions must be accepted
by true if the ALJ did not have good cause for rejecting them.

15

evidence upon which the ALJ could rely in finding that Plaintiff
is capable of a limited range of sedentary work.
As noted supra, the ALJ determined that Plaintiff’s retains
the residual functional capacity (“RFC”) to:
perform the exertional requirements of
sedentary work (lift, carry, sit, stand,
walk) as defined in 20 C.F.R. 404.1567(a)
and 416.967(a). However, the claimant has
non-exertional limitations as well in that
he can never operate foot controls with his
right lower extremity. He is restricted to
rarely climbing stairs and ramps, and rarely
kneeling, crouching and crawling. He can
perform no more than occasional balancing
and stooping. He can never climb scaffolds
and ladders. He must avoid all exposure to
work place hazards, such as unprotected
heights, moving mechanical parts, dangerous
machinery, and operating a motor vehicle. He
can understand, remember and carry out no
more than short, simple instructions and
some detailed instructions.
(Id. at 16).
In reaching this determination, the ALJ gave little weight
to

the

opinions

of

Dr.

Carver,

Plaintiff’s

primary

care

physician, who opined that Plaintiff could sit and stand/walk
less than 2 hours total in an 8-hour working day; would need to
shift positions at will; would need to take unscheduled breaks;
must use a cane while engaging in occasional standing/walking;
could lift up to 10 pounds frequently; could lift up to 20
pounds occasionally; could rarely twist, bend, squat or climb;
and would, on average, be absent from work more than four days

16

per month as a result of his impairments or treatment. (Id. at
310-3).

In according little weight to Dr. Carver’s opinions,

the ALJ noted that Dr. Carver’s treatment history with Plaintiff
was brief, as the medical records reflect only two appointments,
in March and April 2009.

The ALJ also found that Dr. Carver’s

opinions were inconsistent with the medical record as a whole,
that Dr. Carver’s opinion that Plaintiff is disabled is an issue
that is reserved for the Commissioner, and that it appears that
Dr. Carver relied heavily on Plaintiff’s subjective reports in
reaching his opinions.
“The ALJ must generally give the opinion of a treating
physician ‘substantial or considerable weight’ absent a showing
of good cause not to do so.” Newton v. Astrue, 297 Fed. Appx.
880, 883 (11th Cir. 2008). See also

Lewis v. Callahan, 125 F.3d

1436, 1440 (11th Cir. 1997) (a treating physician’s opinion must
be given substantial weight unless good cause is shown to the
contrary).

The

Eleventh

Circuit

has

concluded

“good

cause”

exists when a treating physician’s opinion is not bolstered by
the evidence, is contrary to the evidence, or when the treating
physician’s opinion is inconsistent with his or her own medical
records. Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir.
2004). If an ALJ elects to disregard the medical opinion of a
treating physician, then he or she must clearly articulate the
reasons for so doing. Id. The ALJ may also devalue the opinion

17

of a treating physician where the opinion is contradicted by
objective medical evidence. Ellison v. Barnhart, 355 F.3d 1272,
1275-76

(11th

Cir.

2003)

(per

curiam),

citing

Oldham

v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (holding that
“the ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion”) (citation omitted);
Kennedy v. Astrue, 2010 U.S. Dist. LEXIS 39492, *22-23 (S.D.
Ala. Apr. 21, 2010) (“[I]t is the ALJ's duty, as finder of fact,
to choose between conflicting evidence[,] and he may reject the
opinion

of any physician when the evidence supports a finding

to the contrary.”).
The undersigned finds that the ALJ offered good cause for
not

according

considerable

expressed by Dr. Carver.

weight

to

all

of

the

opinions

While Dr. Carver opined that Plaintiff

could only stand, sit and walk less than two hours in an eight
hour shift, that Plaintiff would need the occasional use of a
cane or assistive device, and that he would likely miss more
than four (4) days per month from work, these opinions are not
supported by the medical records.

The medical records reflect

that while Plaintiff was diagnosed with lumbar disc syndrome,
repeat MRIs of his lumbar spine did not show any nerve root
impingement.

Further, Plaintiff was treated conservatively with

medications, and he reported that his medications were working.
Additionally,

Plaintiff

testified

18

that

he

could

care

for

himself, that he could do some household chores, and that he
took

out

of

town

trips

in

the

car

but

stopped

for

breaks.

Further, when Plaintiff was examined by Dr. Haidar on February
27, 2008, Dr. Haidar found that Plaintiff had normal range of
motion

at

the

hips,

knees

and

ankles,

that

Plaintiff

had

negative results on the straight leg tests, and that Plaintiff
was

able

to

walk

on

his

toes

and

heel.

Given

this

record

evidence, the ALJ had good cause for according less weight to
some

of

the

opinions

expressed

by

Dr.

Carver,

such

as

his

opinion that Plaintiff could sit, stand and walk less than two
hours, and that he would be absent from work up to four (4) days
a month.
However, Dr. Carver also opined that Plaintiff would need
to

alternate

between

sitting

and

standing,

at

will,

and

Plaintiff’s history of lumbar pain certainly supports such a
restriction; but the RFC established by the ALJ does not include
this restriction.

Moreover, there is no medical opinion, either

by an examining or non-examining medical source, which supports
the specific restrictions and limitations imposed by the ALJ.
Courts within this Circuit have repeatedly held that where the
ALJ

rejects

a

treating

physician’s

RFC

assessment,

the

Commissioner cannot simply replace the treating source’s opinion
with his own.
57670

(S.D.

See Canfield v. Astrue, 2007 U.S. Dist LEXIS

Ala.

June

19,

2007)(rejection

19

of

RFC

and

pain

evaluation by treating source and reliance on the assessment of
a

non-examining,

reviewing

physician

was

improper);

see

also

Siverio v. Comm’r of Soc. Sec., 2012 U.S. App. LEXIS 3552 (llth
Cir.

2012)(unpublished)(court

held

that

although

the

ALJ

properly rejected the RFC by claimant’s treating physician, the
ALJ’s finding that the claimant could perform medium work was
error because it was based on an RFC assessment by a single
decisionmaker who is not an acceptable medical source); Smith v.
Astrue,

2011

U.S.

Dist.

LEXIS

146050

(S.D.

Ala.

Dec.

19,

2011)(ALJ erred in relying on the opinion of a nonexamining
physician to find that the claimant could perform light work as
opinion of nonexamining physician did not constitute substantial
evidence).
Based upon a review of the entire record, the undersigned
is constrained to find that the ALJ’s RFC determination is not
supported by substantial evidence where the ALJ rejected the
only

functional

assessment

by

a

medical

provider.

This

is

particularly true where Plaintiff’s treating physician opined
that Plaintiff would need to alternate at will between sitting
and standing, and the treatment records appear to support such a
restriction yet the ALJ omitted it from the RFC determination7.

7

Radiological evidence from April 2004 noted “broad base
disc bulge with an asymmetrically prominent right lateral
component at L4-5 [with] resultant narrowing of the central
(Continued)
20

Accordingly, the undersigned finds that the ALJ's decision must
be

reversed

and

the

case

remanded

for

reconsideration

of

Plaintiff’s RFC.
Because
Court

need

this
not

issue

is

consider

dispositive
Plaintiff’s

of

this

remaining

appeal,

the

arguments.

Robinson v. Massanari, 176 F. Supp. 2d 1278, 1280 & n.2 (S.D.
Ala. 2001); cf. Pendley v. Heckler, 767 F.2d 1561, 1563 (11th
Cir. 1985) (“Because the ‘misuse of the expert's testimony alone
warrants reversal,’ we do not consider the appellant's other
claims.”).
V.

Conclusion

canal and bilateral L4 foramina but not evidence of L4 root
impingement.” (Id. at 230). June 2004 imaging results noted
“persistent slight diffuse bulging of the L4-5 intervertebral
disc” and “persistent small focal central bulge of the L5-S1
intervertebral disc” (Id. at 226). An MRI in June 2005 found
“desiccation of the disc material L5-S1 with small focal annular
tear and 2 mm. posterior central bulging of disc material,
slightly flattening the anterior thecal sac margin at L5-S1.”
(Id. at 233). Further radiological testing in April 2008 noted
“degenerative disc disease at the L4-5 and more pronounced at
the L5-S1 levels with mild degree of central canal stenosis at
the L4-5 level. There is a broad-based central disc protrusion
at the L5-S1 level ...[, t]here is mild facet arthrosis with
some encroachment of the neural foramina at the L5-S1 level and
also at the L4-5 level.” (Id. at 292). Thus, objective medical
evidence of a serious back injury is well-documented in the
record and is substantial evidence to support Dr. Carver’s
opinion that Plaintiff would need to alternate at will between
sitting and standing.

21

For the reasons set forth, and upon careful consideration
of the administrative record and memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner of Social
Security,
benefits

denying
and

Plaintiff=s

supplemental

claim

security

for

disability

income,

be

insurance

REVERSED

REMANDED.
DONE this 26th day of March, 2012.
/s/ SONJA F. BIVINS____
UNITED STATES MAGISTRATE JUDGE

22

and