Guidet v. Astrue
Filing
22
Order that the decision of the Commissioner of Social Security, denying plaintiff's claim for disability and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 8/15/2012. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MILLICENT JO GUIDET,
*
*
Plaintiff,
*
*
vs.
*
*
MICHAEL J. ASTRUE,
*
Commissioner of Social Security, *
*
Defendant.
*
CIVIL ACTION 11-00144-B
ORDER
Plaintiff
action
seeking
Millicent
judicial
Jo
Guidet
review
of
(“Plaintiff”)
a
final
brings
decision
of
this
the
Commissioner of Social Security denying her claim for a period
of disability and disability insurance benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 401 et seq.
On July
19, 2012, the parties consented to have the undersigned conduct
any and all proceedings in this case. (Doc. 13).
action
was
referred
to
the
undersigned
to
Thus, the
conduct
all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c). (Doc. 14).
Oral argument was waived. (Docs.
19, 20). Upon careful consideration of the administrative record
and the briefs of the parties, it is hereby ORDERED that the
decision of the Commissioner be AFFIRMED.
I.
Procedural History
Plaintiff
protectively
filed
applications
for
disability
and disability insurance benefits on October 16, 2007. (Tr. 96100). Plaintiff alleges that she has been disabled since August
31, 2005, due to post surgical back pain, depression, carpal
tunnel syndrome, high blood pressure, acid reflux, headaches,
and hypothyroidism. (Id. at 64).
Plaintiff’s earnings record
shows that she has sufficient quarters of coverage to remain
insured through December 31, 2011 (her “date last insured”), and
that
she
is
insured
through
that
date.
(Id.
at
115).
Her
application was denied at the initial stage, and on April 5,
2008, Plaintiff filed a timely Request for Hearing before an
Administrative Law Judge (“ALJ”). (Id. at 64-7, 72-3).
11,
2009,
Administrative
administrative
hearing,
Law
which
Judge
was
Lawrence
attended
by
attorney, and vocational expert, Wendy Klamm.
Ragona
On June
held
Plaintiff,
an
her
(Id. at 33-62).
On July 6, 2009, the ALJ issued an unfavorable decision finding
that Plaintiff is not disabled.
(Id. at 20-32).
Plaintiff’=s
request for review was denied by the Appeals Council (“AC”) on
January 28, 2011.
(Id. at 1-5, 16-19).
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 properly evaluated the medical
opinions contained in the record?
B.
Whether the ALJ complied with SSR 96-7p when
evaluating Plaintiff’s credibility and her subjective
complaints of pain?
C.
Whether the ALJ erred by presenting an incomplete
hypothetical to the VE?
III. Factual Background
Plaintiff was born on August 17, 1961, and was forty-seven
(47) years of age at the time of the administrative hearing,
that was conducted on June 11, 2009.
(Tr. 37, 96, 110).
She
graduated from high school and earned an associate’s degree in
medical technology.
(Id. at 39). Plaintiff has past relevant
work (“PRW”) as a medical technologist.
At
the
hearing,
Plaintiff
(Id. at 39, 58).
testified
that
she
surgery due to a herniated disc in 2003. (Id. at 40).
had
back
Plaintiff
further testified that the pain medication she took after her
surgery caused her to work slowly, inhibited her from learning
new information, and resulted in her falling asleep at work.
(Id. at 40-1). Plaintiff testified that she has the most pain in
her lower back and left hip and that she uses heating pads, cold
packs and lidocaine patches for relief. (Id. at 55).
Plaintiff also testified that she would cry at work due to
feelings of hopelessness and incompetence, and that she resigned
from
her
job
because
she
was
going
3
to
be
fired.
Plaintiff
indicated that she attempted to start a home computer business,
but she was not able to “grasp the concept.” (Id. at 41, 45-46).
Plaintiff also testified that she “attacked” herself with her
fingernails without warning, and as a result, she enrolled in
intensive outpatient mental therapy. (Id. at 45-46).
With respect to daily activities, Plaintiff reported that
she lives alone, cares for herself, washes dishes, does laundry,
makes her bed, and performs other light cleaning tasks to keep
her house neat.
Plaintiff also reported that she goes grocery
shopping and can carry grocery bags as long as they are not too
heavy.
Additionally,
Plaintiff
reported
that
she
is
able
to
drive, that she uses the computer to send emails and pay her
bills, that she cares for her pet, and that she visits with
family and friends on the telephone1. (Id. at 37-38. 43-4, 47,
51, 52, 57).
Plaintiff’s
medications
at
various
times
throughout
her
treatment have include Wellbutrin, Cymbalta, Deplin, Percocet,
Lortab, Fentanyl patches, Provigil, Lidoderm patches, Maxalt,
1
Plaintiff indicated that her estranged husband comes over
and cleans her house once a month, unloads groceries for her,
and cares for the yard. (Id. at 37-38, 43-4, 47)
4
Prilosec, Synthyroid, Requip, Valtrex, Norco, Doragesic patches,
Topamax, and Xanax (Id. at 48, 54-5, 288, 363-4).
IV.
Analysis
A.
Standard Of Review
In reviewing claims brought under the Act, this Court’s
role
is
a
limited
determining
1)
one.
whether
The
the
Court’s
decision
review
of
the
is
limited
to
Secretary
is
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).2
Martin v. Sullivan, 894 F.2d
A court
may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.
1986).
The
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s
findings
of
fact
affirmed if they are based upon substantial evidence.
must
be
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 “more than a scintilla but
less
than
a
preponderance”
and
consists
of
“such
relevant
evidence as a reasonable person would accept as adequate to
support a conclusion[]”).
In determining whether substantial
evidence exists, a court must view the record as a whole, taking
2
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
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.
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 “inability to do any
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), 404.1505(a), 416.905(a).
The 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)
(Continued)
6
In the case sub judice, the ALJ determined that Plaintiff
met
the
non-disability
requirements
benefits through December 31, 2011.
for
disability
insurance
(Tr. 23, 25). The ALJ noted
that Plaintiff worked for two months after her alleged onset
date but quit that work due to pain caused by her impairments.
Thus, he
found
that
the
work did
not
rise
to
the
level of
substantial gainful activity and that Plaintiff has not engaged
in substantial gainful activity since her alleged onset date.
(Id. at 25). The ALJ also concluded that while Plaintiff has the
severe
impairments
fusion
at
L5-S1,
of
depression,
degenerative
status
joint
post
disease
lumbar
of
the
spinal
cervical
spine, and osteoarthritis of the lumbar spine, they do not meet
or
medically
equal
the
criteria
for
any
of
the
impairments
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)).
7
listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulations No.
4.4
(Id. at 25-7).
The
ALJ
concluded
that
Plaintiff
retains
the
residual
functional capacity (hereinafter “RFC”) to perform light work,
that Plaintiff can sit for 6 hours in an 8-hour workday and
stand
and
walk
for
2
hours
in
an
8-hour
workday
and
that
Plaintiff can sit, stand, and walk for no more than one hour
continuously at a time. He also found that Plaintiff is unable
to perform complex work due to her mental impairments. (Id. at
27).
The ALJ next determined that while Plaintiff’s medically
determinable impairments could reasonably be expected to produce
some
of
the
intensity,
symptoms
alleged
symptoms,
persistence
were
not
and
her
limiting
credible.
testimony of the VE,
statements
(Id.
concerning
effects
at
of
28).
the
the
alleged
Relying
on
the
the ALJ concluded that Plaintiff’s RFC
precludes her from performing any of her past work, and that
considering
education
other
her
and
jobs
RFC
work
existing
and
vocational
experience,
in
factors,
Plaintiff
significant
is
numbers
such
able
in
as
to
the
age,
perform
national
economy such as gate guard, bioclerk, check cashier, and sorter,
4
The ALJ determined that Plaintiff’s diagnosed
tunnel syndrome was a non-severe impairment. (Id. at 25).
8
carpal
all of which allow for a sit/stand option. (Id. at 30-31. The
ALJ thus concluded that Plaintiff is not disabled. (Id.)
The relevant evidence of record shows that Plaintiff was
treated
by
David
Gower,
M.D.,
at
Northwest
Neurosurgical
Associates from at least April 7, 2003 to November 7, 2006. (Id.
at 196-227). An MRI of Plaintiff’s cervical spine, taken on June
5,
2003,
revealed
and
compared
multilevel
to
a
previous
degenerative
disc
study
taken
disease
May
2002,
predominately
consistent with uncus and endplate osteophytosis at C4-5 and C56, which was more prominent on the left. The radiological report
also
revealed
mild
to
moderate
bony
foraminal
bilaterally caused by a bulging disc and endplate
stenosis
and uncus
osteophytosis at C6-7. (Id. at 221-2).
Plaintiff was admitted to the hospital for anterior fusion
due to progressive and longstanding back pain on July 24, 2003.
During
surgery,
Plaintiff
underwent
an
anterior
approach
and
interbody fusion with cages and bone morphogenic protein. Dr.
Gower’s treatment notes indicate that post-surgery, Plaintiff
responded
well
and
was
able
difficulty with a brace.
to
ambulate
without
significant
Her prognosis was noted as “good.”
Plaintiff was discharged on July 26, 2003, and she was directed
to see Dr. Gower in his office in one to two weeks for wound
check. (Id. at 216, 219-20).
9
Dr. Gower’s treatment notes dated August 12, 2003 reflect
that Plaintiff was “doing quite well.” Dr. Gower reviewed xrays, which showed that Plaintiff’s cages were in good position,
there
was
no
malalignment
of
the
spine,
and
her
disc
space
height had been reconstituted. (Id. at 217). While Plaintiff
reported significant pain into her back and associated spasm,
Dr. Gower opined that Plaintiff had very good results postsurgery. In addition, in response to Plaintiff’s request for
additional
narcotic
medication,
Dr.
Gower
opined
that
Plaintiff’s use of narcotics was “really quite brisk,” and noted
that she would be referred to Dr. Dave for medication management
and to aid in weaning her off narcotic medication. Dr. Gower
noted that Plaintiff was disabled from her job for three months
due to her lumbar spinal surgery and lumbar fusion, and directed
her to follow-up in one month. (Id.)
During Plaintiff’s September 10, 2003 visit, Dr. Gower once
again expressed concern about the amount of narcotic medication
that Plaintiff was taking.
He surmised that Plaintiff had a
habituation problem with prescription medication, and that she
might
be
a
candidate
for
a
detoxification
program
or
would
benefit from treatment with a pain management doctor who could
gradually reduce her narcotic use. Dr. Gower prescribed Lorcet.
(Id. at 215).
10
During her October 15, 2003 visit, Plaintiff reported that
her pain was under better control, and that Dr. Doherty had been
trying to wean her off of narcotics and pain patches. Plaintiff
indicated a desire to return to her work, which mostly involved
the computer, and no lifting. Dr. Gower concurred that it was
safe
for
Plaintiff
to
return
to
work
with
no
restrictions
starting the next day. He advised Plaintiff that her increased
activity would likely cause some pain and that she was making
good progress. (Id. at 214).
Plaintiff was seen by Dr. Gower three times during 2004. An
MRI of Plaintiff’s lumbar spine in 2004 showed operative changes
of
discectomy
and
placement
of
caged
fusion
at
L5-S1.
No
evidence of nerve root compression, focal bulging, or herniation
was observed. The cages were noted as appearing within the disc
interspace. Severe degenerative desiccation, narrowing, minimal
posterior bulging, anterior subligamentous herniation at T11-12,
and mild degenerative disc changes at T12-L1 were observed. (Id.
at
210).
Dr.
Gower
noted
that
the
MRI
demonstrated
that
Plaintiff does not have adjacent segment disease at L4-5, and
that the L5-S1 level looked fused. Upon reviewing a bone scan
that
Plaintiff
underwent
in
2004,
Dr.
Gower
opined
that
Plaintiff’s anterior fusion was stable. (Id. at 206-7).
Upon
examining
Plaintiff
in
2006,
Dr.
Gower
noted
that
Plaintiff’s range of motion was good, and she was able to bend
11
over and almost touch the floor. She was also able to extend
back to 20 degree and bend 20 degrees to each side. A straight
leg
test
was
negative
bilaterally,
and
Plaintiff’s
wound
appeared “okay.” Dr. Gower opined that Plaintiff did not appear
to
have
radiculopathy
and
that
previous
MRIs
showed
some
cervical spondylosis that was insignificant and did not require
surgery.(Id.
lumbar
at
spine
202-3).
on
Following
a
5,
Dr.
October
2006,
CT
scan
Gower
of
Plaintiff’s
determined
that
Plaintiff’s facet joints and body fusion were properly fused and
that there was no indication of adjacent segment disease.
He
opined that Plaintiff’s neck pain was likely related to some
spondylosis in the neck and that her arm pain is likely related
to carpal tunnel syndrome.5 Plaintiff was directed to submit for
EMG
testing
of
the
upper
extremities,
the
results
of
which
demonstrated persistent carpal tunnel syndrome. No evidence of
cervical radiculopathy was noted. (Id. at 197-198).
The notes
from Plaintiff’s last visit with Dr. Gower on November 7, 2006
reflect that Plaintiff reported doing better since she had been
off
work
and
had
a
reduced
good
her
stress.
candidate
Gower
further
opined
that
Plaintiff
was
measures.
He questioned whether additional surgery made sense
5
for
Dr.
conservative
Plaintiff was treated for migraines and night twitching by
Dr. Davis at Northwest Neurology from June 29, 2005 to October
16, 2006; however, the notes are not legible. (Id. at 182-195).
12
for Plaintiff and noted that she was in the process of moving
out of town. (Id. at 197).
Plaintiff was also treated for persistent lower back pain,
left leg pain, and right knee pain by Dr. Luther Rollins, III,
and Dr. Dennis Doherty at Southeastern Pain Specialists from at
least August 23, 2005 to at least November 8, 2006. (Id. at 22882).
On
exam
on
August
23,
2005,
Plaintiff
had
a
normal
Spurling’s Test, and her neck had diminished range of motion.
Her back was tender over spinous processes with decreased range
of motion. Her reflexes were 2/4 bilaterally, and her muscle
strength
was
5/5
bilaterally
in
her
lower
extremities.
Plaintiff’s gait and station were normal, and no clonus was
observed.
cervical
NOS;
Plaintiff
was
assessed
spondyloarthritis;
postlaminectomy
with
depression,
inflammation
syndrome
of
lumbar
of
major
sacroiliac
region;
and
NOS;
joint
cervical
arthritis. Plaintiff was directed to continue Norco, Mobic, and
Duragesic film. She was scheduled for a left lumbar epidural
steroid injection at L3-4. (Id. at 271-2).
that
Plaintiff
underwent
epidural
The record reflects
steroid
trigger
point
injections on at least September 15, 2005, accompanied with an
injection of Depo-Medrol to the left knee, February 6, 2006,
March 2, 2006, March 17, 2006, April 25, 2006, May 16, 2006, and
November 3, 2006. (Id. at 231-3, 249, 254, 257-8, 262-3, 270,
280-2).
13
The
reflect
treatment
a
couple
notes
of
from
Southeastern
instances
during
Pain
which
Specialists
Plaintiff
was
counseled about overusing her Duragesic pain patches and warned
that such unauthorized use of her medication would result in her
being discontinued as a patient.
See (Id. at 242-8, 257-9, 266-
7).
July
The
treatment
notes
dated
10,
2006
reflect
that
Plaintiff reported being terminated from her job due to being
drowsy
and
benefits.
that
that
Dr.
she
Rollins
Plaintiff
was
was
seeking
opined,
not
social
based
“permanently
disability
“objective
on
security
findings,”
disabled
and
[that
she]
could work in some capacity.” In response to Plaintiff’s reports
of
decreased
concentration,
Dr.
Rollins
suggested
that
she
taper off medications. (Id. at 242-3).
The
records
reflect
that
Plaintiff
was
provided
mental
health treatment by psychiatrist Mark Hutto from June 17, 2005
through December 4, 2006. (Id. at 283-339). During this period,
Plaintiff
reported
depression,
anxiety,
difficulty
concentrating, problems at work and losing temper. (Id. at 317320,
336).
Dr.
hospitalization
in
Hutto
2005,
recommended
and
she
was
Plaintiff
admitted
Institute on June 17, 2005. (Id. at 317-320).
for
to
partial
Ridgeview
On admission,
Plaintiff reported severe depression and anxiety for many years,
and
some
suicidal
ideas.
She
also
reported
that
she
was
currently stressed by her inability to work adequately and the
14
financial problems that it may cause.
included
major
depression,
severe
and
Plaintiff’s diagnosis
recurrent,
generalized
anxiety disorder, and chronic pain syndrome. (Id.) Her GAF score
was
256.
medication,
A treatment
and
plan,
individual
which
included
psychotherapy,
a
group
review
of
her
therapy,
and
educational classes for depression, was developed for Plaintiff.
(Id. at 320).
Dr. Hutto released Plaintiff to return to work in
August 2005. (Id. at 330). Dr. Hutto’s notes reflect that during
2006, Plaintiff’s symptoms waxed and waned.
6
(Id. at 291)
The Global Assessment of Functioning (GAF) is a numeric
scale (0 through 100) used by mental health clinicians that
measures a patient’s overall level of psychological, social, and
occupational functioning on a hypothetical continuum. A GAF
score of 11-20 indicates some danger of hurting oneself or
others; a score of 21-30 suggests behavior that is considerably
influenced by delusions or hallucinations or serious impairment,
in communication or judgment; a score between
31 and 40
reflects some impairment in reality testing or communication or
major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood; a GAF score of
41-50 indicates serious symptoms indicative of antisocial
behavior (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or serious social dysfunction (e.g., no
friends, unable to keep a job), a score between 51-60 suggests
moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social,
occupational,
or
school
functioning
(e.g.,
few
friends,
conflicts with peers or co-workers); and a GAF score of 61-70 is
indicative of mild symptoms (e.g., depressed mood and mild
insomnia) or some difficulty in social, occupational, or school
functioning,
but
generally
functioning
pretty
well.
See
http://www.gafscore.com/. (Last visited May 21, 2012).
15
Plaintiff
received
mental
health
treatment
at
Southwest
Amb. Behavioral Services from January 11, 2007 through February
1, 2007. (Id. at 340-70).
Plaintiff reported she was struggling
to function due to depression and that she had daily thoughts of
death.
“one”
Plaintiff also rated her pain as a “three” on a scale of
to
“ten.”
Plaintiff’s
memory
and
concentration
were
intact, her affect was constricted, her mood was sad, anxious
and severely depressed. (Id. at 351-2). Plaintiff’s GAF was 35,
and she was diagnosed with major depression without psychosis
and chronic pain syndrome.
Her prognosis was guarded, and she
was
day
admitted
for
the
full
program.
(Id.
at
354).
Her
treatment plan included education on disease process with group
therapy
and
weekly
medication
management
with
Dr.
Edgardo
Concepcion. Upon discharge on February 1, 2007, Plaintiff was
“moderately improved” and her GAF was 50. Her follow-up care
plan included individual therapy and medication management with
Dr. Concepcion. (Id. at 341-3).
The record reflects that thereafter, Plaintiff was seen by
Dr. Concepcion at the Abbeville Community Health Center twice in
2008 and once in May 2009. (Id. at 371-3, 445-9, 481-7, 515-23).
In
treatment
Plaintiff’s
records
mood
was
from
2008,
depressed
Dr.
and
Concepcion
anxious,
her
noted
affect
that
was
constricted, her concentration and attention were impaired, and
she had “flight of ideas”; however, her judgment and memory were
16
intact. (Id. at 447-9).
He diagnosed Plaintiff with bipolar
disorder, anxiety, and chronic pain and assigned her a GAF of 40
for that period, and for the past year. (Id.)
On
May
22,
2009,
Dr.
Concepcion
completed
a
Psychiatric/Psychological Impairment Questionnaire. (Id. at 51523).
In
it,
Dr.
Concepcion
diagnosed
depression, recurrent and severe,
Plaintiff
with
major
without psychosis, anxiety
disorder, chronic pain, and restless leg syndrome. He assigned
Plaintiff
highest
a
GAF
current
for
the
GAF
of
past
35,
year
and
(Id.
opined
at
that
516).
55
Dr.
was
her
Concepcion
opined that Plaintiff’s depression and anxiety were the most
frequent and/or severe of her symptoms. He noted that Plaintiff
had not required hospitalization for her symptoms and that her
symptoms and functional limitations were reasonably consistent
with her physical and emotional impairments described in the
Questionnaire.
Dr.
Concepcion
opined
that
Plaintiff
is
“moderately
limited” in her ability to carry out simple one or two-step
instructions,
carry
out
detailed
instructions,
ask
simple
questions and request assistance, interact appropriate with the
general
public,
maintain
socially
appropriate
behavior
and
adhere to basic standards of neatness and cleanliness, and set
realistic goals or make plans independently. He also opined that
Plaintiff
is
“markedly
limited”
17
in
her
ability
to
remember
locations
and
work-like
procedures,
understand
and
remember
detailed instructions, maintain attention and concentration for
extended periods, perform activities within a schedule, maintain
regular attendance and be punctual within customary tolerance,
complete
a
normal
workday
and
workweek
without
interruptions
from psychologically based symptoms and perform at a consistent
pace without an unreasonable number and length of rest periods,
and travel to unfamiliar places or use public transportation.
(Id. at 518-21).
With respect to whether Plaintiff would experience episodes
of
deterioration
or
decompensation
in
work
or
work
like
settings, Dr. Concepcion’s notes appear to reflect that it is
unknown
whether
Plaintiff
would
experience
such
because
Plaintiff had not been employed since moving to Louisiana7. (Id.
at 521).
In another place on the questionnaire, Dr. Concepcion
indicates that Plaintiff is capable of low stress work, and
again makes reference to the fact that Plaintiff has not been
employed in Louisiana. (Id. at 522).
The
record
also
contains
the
treatment
records
of
Dr.
Matthew Mitchell at the Louisiana Pain Management Center. (Id.
at 374-400, 470-80, 488-506).
Plaintiff was referred to Dr.
7
Some of Dr. Concepcion’s handwritten notes are difficult to
decipher.
18
Mitchell for pain management after she moved from Atlanta to
Louisiana.
Dr. Mitchell treated Plaintiff from February 28,
2007 to April 3, 2008.8
(Id.)
The records reflect that during
his initial exam of Plaintiff, Dr. Mitchell noted that Plaintiff
had significant tenderness in the paraspinous muscles in her
cervical spine and over the lumbar spine, that pressure over the
lumbosacral area increased the pain, and that spasm in that area
was observed. (Id. at 385-7). Plaintiff’s straight leg raise
test
was
negative,
the
strength
in
her
lower
and
upper
extremities was normal and sensation was intact. (Id. at 386).
Dr. Mitchell’s diagnostic impression was lumbar post laminectomy
syndrome,
lumbosacral
cervical
radiculitis,
sacroilitis,
Plaintiff’s
refilled,
radiculitis,
depression
Norco,
and
a
osteoarthritis
and
anxiety
Duragesic,
back
cervical
brace
multiple
secondary
Lidoderm,
was
spondylarthritis,
and
prescribed.
sites,
to
pain.
Valtrex
were
Plaintiff
was
directed to follow up in 3 months for a medication review. (Id.
at 385-400).
Dr. Mitchell’s treatment notes dated August 8, 2007 reflect
that Plaintiff’s medications were working well and that she was
8
The record indicates that Plaintiff received treatment
from Dr. Edward Kemp Coreil fives times between October 30, 2007
through January 18, 2009. (Id. at 418-24, 450-55, 507-14).
19
getting good relief.
An MRI of Plaintiff lumbar spine taken
October 29, 2007 demonstrates post-operative changes at L5-S1
but no evidence of recurrent disk herniation or spinal stenosis.
(Id. at 506). Dr. Mitchell’s treatment notes dated December 18,
2007 reflect that the MRI shows postoperative changes at L5-S1,
but no evidence of recurrent disc herniation or spinal stenosis.
He opined that Plaintiff was continuing to have pain in her back
due to post laminectomy syndrome and radiculitis.
Dr.
April
Mitchell
2,
2008,
completed
wherein
he
a
Lumbar
listed
Spine
(Id. at 504).
Questionnaire
Plaintiff’s
diagnosis
on
as
lumbar post-laminectomy syndrome, osteoarthritis, and cervical
radiculitis, and noted her prognosis as “poor.”
477).
(Id. at 471-
In the section entitled “positive clinical findings,” Dr.
Mitchell notes that that Plaintiff had a limited range of motion
of 40 degrees in her back and neck, tenderness in her neck and
back, muscle spasm in her neck and back, sensory loss in her
hands, and trigger points in Plaintiff’s lower back and neck.
Plaintiff’s gait was normal and her straight leg raising was
negative. (Id. at 472).
was noted.
In addition, no swelling or crepitus
(Id.)
Dr. Mitchell opined that Plaintiff could occasionally lift
or carry up to 5 pounds and never lift or carry more than that
amount. He also opined that Plaintiff could sit no more than an
hour in an eight-hour workday and could
20
stand/walk no more than
an hour in an eight-hour workday. (Id. at 471-476). He further
opined that Plaintiff’s pain was severe enough to interfere with
her attention and concentration, that Plaintiff would need to
take 15 to 30 minute breaks every hour, that Plaintiff would
miss work more than 3 times per month, and that she is incapable
of tolerating even “low stress work.” (Id.)
He also opined that
Plaintiff cannot push, pull, kneel, bend or stoop, and that she
should
avoid
heights,
humility,
temperature extremes. (Id.)
noise,
fumes,
gases
and
He further opined that Plaintiff’s
impairments are ongoing and are expected to last at least 12
months.
Plaintiff was evaluated on November 24, 2007 by Eric R.
Cerwonka, Doctor of Psychology, at the request of the Agency.
Plaintiff reported a history of depression, residual back pain
following lumbar fusion, and poor concentration. On exam, Dr.
Cerwonka observed that Plaintiff’s mood ranged between euthymic
and mildly depressed, and her affect was restricted. Plaintiff
was alert and oriented times four, she could recite the month,
day,
and
year,
and
she
could
repeat
3
out
of
3
objects
immediately, recall 2 out of 3 after one minute, and 3 out of 3
after 5 minutes. Plaintiff’s pace and persistence were noted as
fair, and Dr. Cerwonka noted she could perform repetition skills
and
3-stage
command.
Plaintiff
21
was
able
to
repeat
5
digits
forward and 4 backward. Her intellectual functioning seemed to
be within the average range.
Dr.
Cerwonka
recurrent,
diagnosed
moderate;
major
rule
out
depressive
opiate
disorder,
dependence;
hypothyroidism. Plaintiff’s GAF was 65, and
and
Dr. Cerwonka opined
that Plaintiff’s disorders, in and of themselves would not be
expected
to
prevent
her
from
working.
He
also
opined
that
Plaintiff has no intellectual limitations or cognitive defects
that would be expected to prevent her from working. He remarked
that
Plaintiff
was
able
to
understand,
retain,
and
follow
instructions and sustain enough concentration and attention to
perform
both
simple
and
more
complex
tasks
during
the
examination. He also observed that Plaintiff seemed to be able
to relate well to others on a one-on-one basis and concluded
that there did not seem to be any psychiatric, cognitive, or
behavioral problems that would prevent her from regular, fulltime work. (Id. at 425-300).
Agency medical consultant Joseph Kahler, PhD, completed a
Psychiatric Review Technique assessment on December 17, 2007. He
opined
that
affective
Plaintiff
disorder,
has
the
specifically
non-severe
major
impairments
depressive
of
disorder,
recurrent, moderate, and opioid dependence. He determined that
Plaintiff experienced mild limitations in activities of daily
living, in maintaining social functioning, and in maintaining
22
concentration,
persistence,
or
pace.
He
found
that
Plaintiff
would experience one or two episodes of decompensation, each of
an extended duration. (Id. at 431-44).
Plaintiff
was
examined
on
January
19,
2008,
by
Dr.
Christopher Foti, a consultative examiner, at the request of the
Agency. (Id. at 456-61). On examination, Plaintiff was in no
acute distress and was alert and oriented times three. No muscle
asymmetry, atrophy, involuntary movements, structural deformity,
effusion, periarticular swelling, crythema, heat, swelling, or
tenderness were noted. Plaintiff’s gait was normal, and she was
able to rise from a sitting position without assistance, stand
on tiptoes, and heel/toe walk. Dr. Foti’s report reflects that
Plaintiff had mild difficulty bending and squatting due to back
pain.
Plaintiff’s
grip
was
5/5
bilaterally
with
fine
motor
movements, dexterity, and grip. He noted that Plaintiff’s active
range of motion with lumbar flexion was mildly diminished. Dr.
Foti
diagnosed
Plaintiff
with
low
back
pain
s/p
surgery,
hypothyroidism, hypertension, and sleep disorder. He opined that
Plaintiff should be able to sit, walk, and/or stand for a full
workday,
lift/carry
objects
less
than
20
pounds,
hold
a
conversation, respond appropriately to questions, and carry out
and remember instructions. (Id. at 457-9).
He also remarked
that Plaintiff did not appear depressed or anxious.
23
Shortly
medical
after
Dr.
consultant
Foti’s
Jane
examination
Menard
and
completed
assessment dated February 7, 2008.
report,
a
Agency
physical
RFC
She noted that Plaintiff has
S/P L spine fusion at L5-S1, degenerative disc disease of the
cervical spine, and osteoarthritis. She
opined that Plaintiff
could occasionally lift 20 pounds, frequently lift 10 pounds,
stand and/or walk about 6 hours in an 8-hour workday, sit about
6
hours
in
an
8-hour
workday,
and
push
and/or
pull
for
an
unlimited amount of time. She also opined that Plaintiff could
never
climb
ladders/ropes/scaffolds,
and
that
she
could
occasionally climb ramps/stairs, kneel, crouch, and crawl and
could
frequently
should
avoid
balance.
concentrated
She
further
exposure
to
opined
extreme
that
cold,
Plaintiff
wetness,
humidity, vibrations, and hazards, and that Plaintiff had no
manipulative, visual, or communicative limitations. (Id. at 4629).
1.
Whether the ALJ properly evaluated the
medical opinions contained in the record?
In
her
brief,
Plaintiff
asserts
that
the
ALJ
erred
in
relying on the opinions of one-time consulting physician Dr.
Foti rather than the opinion of Dr. Mitchell, who is both a pain
specialist and Plaintiff’s treating pain management physician.
Plaintiff avers that Dr. Mitchell’s records are consistent with
the records of Dr. Rollins, her prior pain management physician,
24
as well as the clinical and diagnostic evidence, and that the
ALJ failed to provide good cause for discounting the opinion of
Dr. Mitchell, her treating physician. Plaintiff contends that
the ALJ further erred by rejecting the opinions of her treating
psychiatrist,
Dr.
Concepcion,
in
favor
of
one-time
examining
psychologist Dr. Cerwonka.
The Commissioner argues that the ALJ had good cause for
discounting
Dr.
Mitchell’s
inconsistent
with
the
record
opinions
evidence
because
and
his
they
own
were
treatment
notes. The Commissioner further contends that the ALJ had good
cause for discounting Dr. Concepcion’s opinions and reasonably
determined that Dr. Concepcion’s opinions were incongruent with
his statement that Plaintiff could perform low stress work.
Case law provides that “[t]he 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
concluded
“good
to
the
cause”
contrary).
exists
The
when
a
Eleventh
treating
Circuit
has
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.
25
Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). Generally, an
ALJ commits reversible error where he fails to articulate the
reason
for
giving
physician.
less
weight
to
the
opinion
of
a
treating
MacGregor v. Bowen, 786 F.2d 1050, 1053 (llth Cir.
1986); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159
(llth Cir. 2007)(per curiam)(the ALJ must accord substantial or
considerable
weight
to
opinion
of
treating
physician
unless
“good cause” is shown to the contrary).
When
a
treating
physician’s
opinion
does
not
warrant
controlling weight, the ALJ must nevertheless weigh the medical
opinion based on: 1) the length of the treatment relationship
and the frequency of examination; 2) the nature and extent of
the treatment relationship; 3) medical evidence supporting the
opinion;
4)
consistency
with
the
record
as
a
whole;
5)
specialization in the medical issues at issue; and 6) other
factors which tend to support or contradict the opinion. 20
C.F.R. § 404.1527(d). Generally, a treating physician’s opinion
is
entitled
to
more
weight
than
a
consulting
physician's
opinion. See Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.
1984). Of course, it 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.
Ellison v. Barnhart, 355 F.3d 1272, 1275-76 (11th
Cir. 2003) (per curiam), citing Oldham v. Schweiker, 660 F.2d
26
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
physician
when
the
evidence
supports
a
finding
of any
to
the
contrary.”). Based upon a careful review of the record, the
undersigned finds that the ALJ offered good cause for rejecting
the opinions of Drs. Mitchell and Concepcion.
In
discussing
the
opinions
of
Plaintiff’s
treating
psychiatrist and pain management specialist, the ALJ stated, as
follows:
I reject the assessments of Dr. Mitchell and
Dr. Concepcion as they are apparently based
on
subjective
complaints
and
are
inconsistent with the actual treatment notes
and other evidence. Dr. Foti concluded that,
the claimant could sit, walk and/or stand
for a full workday, lift and carry objects
less than 20 pounds, and remember and carry
out instructions (Exhibit 14F). Dr. Cerwonka
said
the
claimant,
with
her
mental
impairment, could understand, retain and
follow
instructions,
sustain
enough
concentration and attention to perform both
simple and more complex tasks, and she would
have no problems relating to others one on
one. He saw no psychiatric, cognitive, or
behavioral reason that she could not perform
regular full-time work (Exhibit 10F). I give
more weight to the opinions given by Dr.
Foti
and
Dr.
Cerwonka,
as
they
are
27
consistent with the objective findings and
results.
(Tr. at 3) (emphasis in original).
In reaching this determination, the ALJ clearly considered
all of the evidence of record, including the treatment notes of
both Dr. Mitchell and Dr. Concepcion.
The ALJ discussed the
treatment notes of these doctors and the other medical evidence
of
record
and
concluded
that
their
assessments
were
not
consistent with their treatment notes or the other evidence of
record.
As noted supra, following Plaintiff’s anterior fusion
surgery in 2003, Dr. Gower noted that she was doing well from a
back standpoint, but expressed concern regarding her dependence
on
narcotic
pain
medication.
(Id.
at
217)
A
CT
scan
of
Plaintiff’s lumbar spine nearly three years later, in October
2006,
showed
that
Plaintiff’s
joints
and
body
fusion
were
properly fused and there was no indication of adjacent segment
disease.
(Id.
at
197-98)
While
Dr.
Gower
suggested
that
Plaintiff’s neck pain was likely related to some spondylosis on
the neck and her arm pain was likely related to carpal tunnel
syndrome, no surgery was recommended.
Plaintiff
was
a
good
candidate
for
He instead opined that
further
conservative
measures. (Id.)
Plaintiff was indeed treated by two pain specialists, first
Dr. Rollins and then, Dr. Mitchell. Dr. Rollins’ treatment notes
28
reflect that on physical exam, Plaintiff had decreased range of
motion in her neck and back, her muscles strength in her lower
and upper extremities was generally 5/5, her gait and station
was normal, and she had negative straight leg results.
In 2006,
Dr. Rollins concluded, based on his “objective findings,” that
Plaintiff is not disabled.
While
Dr.
Mitchell,
(Id. at 242-3).
concluded,
in
April
2008,
that
Plaintiff could occasionally lift or carry up to five pounds,
and that Plaintiff is not able to stand, walk or sit more than
one hour in an 8 hour work day, his treatment notes reflect his
examination results and course of treatment for Plaintiff were
similar to those of Dr. Rollins. (Id. at 385-7) Dr. Mitchell
noted upon examination that Plaintiff has decreased motion in
neck and back, trigger points in low back and neck, normal gait
and negative leg raising. (Id.)
Upon his consultative examination of Plaintiff, Dr. Foti
also found that her range of motion with lumbar flexion was
mildly diminished, that she could heel and toe walk, that her
gait
was
normal,
that
she
was
able
to
rise
from
a
sitting
position without assistance, and that she is able to sit, walk,
and stand for a full workday, and can carry/lift objects less
than twenty pounds.
(Id. at 456-61). In addition, Plaintiff has
reported that she is able to take care of her personal needs,
care for her dog, cook, perform light housekeeping, shop, and
29
drive. (Id. at 37-57)
In the face of this record evidence, the
ALJ, who is responsible for resolving conflicts in the evidence,
rejected
the
Mitchell.
extreme
physical
restrictions
offered
by
Dr.
The undersigned finds that in light of the objective
medical evidence, the treatment notes of Dr. Gower, Dr. Rollins
and Dr. Foti, and other evidence of record, the ALJ had good
cause for rejecting the extreme restrictions contained in Dr.
Mitchell’s assessment.
The ALJ also
limitations
of
psychiatrists.
had good
Dr.
cause for rejecting the “marked”
Concepcion,
one
of
Plaintiff’s
treating
As noted supra, the treatment notes reflect that
Plaintiff has a history of treatment for depression and related
symptoms.
Following reports of severe depression, anxiety and
suicidal ideas in June of 2005, Plaintiff was admitted by Dr.
Hutto,
for
treatment
at
Ridgeview.
(Id.
at
317-320)
While
Plaintiff’s GAF was “25” upon admission, her condition improved,
and Dr. Hutto released her to return to work in August 2005.
(Id.
at
320;
hospitalization
330).
in
Plaintiff
2007
after
was
she
recommended
reported
depression and daily thoughts of death.
for
partial
struggling
with
While her GAF was “35”
upon admission, her condition “moderately improved” and her GAF
was “50” at the time of her discharge. (Id. at 341-343; 351-2).
Plaintiff was seen by Dr. Concepcion twice in 2008. Her GAF
was
“40,”
her
mood
was
depressed,
30
her
concentration
and
attention were impaired and she had “flight of ideas,” but her
judgment
and
memory
were
intact.
Plaintiff
was
provided
medication and did not see Dr. Concepcion until over a year
later, in 2009.
(Id. at 371-1, 145-9; 481-7; 515 – 29).
At
that time, Dr. Concepcion opined that she is “ markedly limited”
in
a
number
locations
of
and
areas,
including
work-like
the
procedures,
ability
understand
to
remember
and
remember
detailed instructions, maintain attention and concentration for
extended periods, and in her ability to maintained regular and
punctual attendance.
(Id. at 515-23). Dr. Concepcion listed
Plaintiff’s GAF score at “35,” and opined that Plaintiff is
capable of low stress work.
The
ALJ,
in
rejecting
Dr.
Concepcion’s
“markedly
limitations” correctly found that they were not consistent with
Dr. Concepcion’s opinion that Plaintiff is capable of low stress
work.
Further,
while
Dr.
Concepcion
listed
Plaintiff’s
GAF
score as “35,” the record reflects that Plaintiff was able to
live alone, take care of her personal needs, shop, do light
house keeping, take care of her financial affairs, drive herself
to appointments, regularly talk to family and friends on the
telephone, and use her
evidence
of
evidence
supportive
computer.
Plaintiff’s
of
limited
the
ALJ’s
This
evidence, along with
treatment,
decision.
is
In
additional
addition,
Plaintiff underwent a consultative examination by Dr. Cerwonka,
31
and
during
the
concentration,
instructions.
exam,
and
Dr.
she
she
exhibited
was
able
Cerwonka,
good
to
like
memory,
recall
understand
and
Hutto,
opined
Dr.
Plaintiff is capable of performing full-time work.
and
follow
that
In the face
of this substantial evidence, the undersigned finds that the ALJ
proferred
good
cause
for
offered by Dr. Concepcion.
rejecting
the
extreme
limitations
See Phillips v. Barnhart, 357 F.3d
1232, 1240 (11th Cir. 2004) (good cause exists when the treating
physician’s opinion was not bolstered by record evidence and was
inconsistent with the doctor’s own records).
2.
Whether the ALJ complied with SSR 96-7p
when evaluating Plaintiff’s credibility and
her subjective complaints of pain?
Plaintiff also argues that the ALJ erred in failing to
credit her testimony regarding pain, medication side effects,
and
work
history.
The
Commissioner
thoroughly
discussed
Plaintiff’s
concluding
that
were
they
not
contends
complaints
supported
by
that
the
of
pain
the
evidence
ALJ
before
of
record, and he set forth multiple reasons which support his
finding that Plaintiff’s subjective complaints were not fully
credible.
Credibility determinations are within the province of the
ALJ.
Moore v. Barnhart, 405 F.3d 1208, 1212 (llth Cir. 2005).
However,
testimony
where
about
an
ALJ
pain,
decides
the
ALJ
32
not
must
to
credit
articulate
a
claimant’s
“explicit
and
adequate reasons” for doing so, or the record must be obvious as
to the creditability finding. Jones v. Dep’t of Health and Human
Servs.,
941
F.2d
1529,
1532
(llth
Cir.
1991).
If
proof
of
disability is based on subjective evidence and a credibility
determination is, therefore, critical to the decision, “‘the ALJ
must
either
implication
explicitly
must
be
so
discredit
clear
as
such
to
testimony
amount
to
or
a
the
specific
credibility finding.’” Foote v. Chater, 67 F.3d 1553, 1562 (11th
Cir. 1995), quoting Tieniber v. Heckler, 720 F.2d 1251, 1255
(11th Cir. 1983) (although no explicit finding as to credibility
is required, the implication must be obvious to the reviewing
court).
articulated
A
reviewing
credibility
evidence in the record.
court
will
finding
with
not
disturb
substantial
a
clearly
supporting
See, e.g., Hale v. Bowman, 831 F.2d
1007, 1012 (11th Cir. 1987); MacGregor v. Bowen, 786 F.2d 1050,
1054 (11th Cir. 1986).
The ALJ must consider all of a claimant’s statements about
her symptoms, including pain9, and determine the extent to which
the symptoms can reasonably be accepted as consistent with the
objective medical evidence. 20 C.F.R. § 404.1528. Relying on the
treatment records and objective evidence, the ALJ in this case
9
Pain is a non-exertional impairment.
1559.
33
Foote, 67 F.3d at
concluded
could
that
Plaintiff’s
reasonably
symptoms,
be
medically
expected
however,
to
Plaintiff’s
determinable
cause
some
statements
of
impairments
the
alleged
concerning
the
intensity, persistence and limiting effects of those symptoms
were not credible to
the extent they were inconsistent with
Plaintiff’s RFC. (Tr. at 28). Specifically, the ALJ found that
Plaintiff’s reported side effects seemed extreme in nature and
that she continued to take those medications without adjustment.
(Id. at 29). The record indicates that Plaintiff was prescribed
Provigil, and she testified that it all but eliminated her side
effects.
Additionally,
allegations
of
pain
medical findings.
the
ALJ
seemed
explained
that
disproportionate
to
Plaintiff’s
the
objective
Indeed, repeat scans of her cervical and
lumbar have showed no malalignment of the spine and Dr. Gower,
who
performed
candidate
her
for
surgery
in
continued
2003,
opined
conservative
that
she
treatment.
was
a
Further,
Plaintiff’s reported daily activities are not consistent with
her alleged level of pain. After a careful review of the record,
the
undersigned
finds
that
the
ALJ’s
credibility
finding
is
supported by substantial evidence and concludes that the ALJ’s
reasons
for
discrediting
Plaintiff’s
testimony
were
clearly
articulated in the decision. As noted above, this court may not
decide the facts anew, reweigh the evidence, or substitute its
34
judgment
but
must
accept
the
factual
findings
of
the
Commissioner where they are supported by substantial evidence
and based upon the proper legal standards. Bridges v. Bowen, 815
F.2d 622 (11th Cir. 1987); see also Hand v. Heckler, 761 F.2d
1545, 1549 (11th Cir. 1985).
3.
Whether the ALJ erred by presenting an
incomplete hypothetical to the VE?
Plaintiff argues that the hypothetical relied upon by the
ALJ
did
not
include
limitations
from
Dr.
Mitchell
and
Dr.
Concepcion, who opined that Plaintiff would be absent more than
three times per month and that she would have marked physical
and mental limitations.
The Commissioner counters that having
reasonably rejected the opinions expressed by Drs. Mitchell and
Concepcion in their assessments, the ALJ did not err when he did
not accept the VE’s testimony relating to those opinions.
The
record
reflects
hypotheticals to the VE.
that
the
ALJ
presented
four
In the first hypothetical, the ALJ
asked the VE to assume an individual of similar age, education
and prior work history as Plaintiff, and to assume that the
individual
could
lift
20
pounds
occasionally
and
ten
pounds
frequently, could sit, stand, or walk six hours out of an eight
hour
work
day
but
only
one
hour
unable to perform any complex work.
continuously,
and
would
be
The VE testified that such
an individual could not return to her past relevant work, but
35
could perform other jobs such as gate guard or file clerk. (Id.
at 59).
In
the
second
hypothetical,
the
ALJ
included
the
same
limitations, except that the person could only lift up to ten
pounds occasionally and five pounds frequently, could stand and
walk for two hours in an eight hour workday but not more than
one hour continuously, could sit for six hours but not for more
than one hour continuously, and would be unable to do perform
complex work.
In response, the VE testified that such a person
could perform the positions of check cashier and sorter. (Id. at
59-60).
Additionally, the VE noted that the jobs of sorter and
check cashier would allow for someone to stand at their option
and stretch if necessary. (Id. at 60).
In the third and fourth hypotheticals, the ALJ included the
same
limitations,
and
added
the
restriction
that
the
person
would have physical and mental problems, including pain, such
that they would unpredictably miss three or four days of work a
month or that the person would miss five or six days of work a
month due to stress.
In response to these hypotheticals, the VE
testified that there would be no jobs that such a person could
perform on a sustained basis. (Id. at 60-1)
Once a plaintiff proves that he cannot return to his past
relevant work, the burden shifts to the Commissioner to show
that the claimant can perform other jobs that are significant in
36
number in the national economy, considering age, education, and
work experience.
Gibson v. Heckler, 762 F. 2d 1516, 1518-19
(llth Cir. 1985).
The burden is on the ALJ to provide evidence
about the existence of other work in the national economy that a
claimant can perform. Reeves v. Heckler, 734 F.2d 519, 525 (llth
Cir. 1984).
The ALJ can satisfy this burden and provide this
evidence through a VE’s testimony. Phillips v. Barnhart, 357
F.3d
1232,
1240
(llth
Cir.
2004).
In
order
for
the
VE’s
testimony to constitute substantial evidence, the ALJ must pose
a hypothetical question which comprises all of the claimant’s
impairments.
Phillips, 357 F.3d at 1240 n.7.
Further, the ALJ
must articulate specific jobs that exist in the national economy
that a claimant can perform.
Allen v. Sullivan, 880 F. 2d 1200,
1202 (llth Cir. 1989).
In this case, the record reflects that the VE testified, in
response to the third and fourth hypotheticals, that there were
no jobs that Plaintiff could perform; however, this hypothetical
was based on the extreme limitations found in Dr. Mitchell and
Dr. Concepcion’s opinions.
As noted supra, the ALJ properly
rejected those opinions because they were inconsistent with the
objective medical evidence and the other evidence of record,
supported mostly by Plaintiff’s subjective statements, and were
inconsistent
with
the
doctors’
own
treatment
notes.
Having
properly rejected those opinions, the ALJ did not err when he
37
did not include the restrictions imposed by either Dr. Mitchell
or Dr. Concepcion in Plaintiff’s RFC and when he rejected that
portion of the VE’s testimony based on those restrictions. See
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (llth Cir.
2004)(an ALJ need not include findings in the hypothetical to
the
VE
that
have
been
properly
discounted
or
rejected
as
unsupported by the evidence).
V.
Conclusion
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,
denying
Plaintiff’s
claim
for
disability
insurance
benefits and supplemental security income, be AFFIRMED.
DONE this 15th day of August, 2012.
/s/ SONJA F. BIVINS_ ___
UNITED STATES MAGISTRATE JUDGE
38
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