Gonzales v. Colvin
Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for a disability insurance benefits and supplemental security income be AFFIRMED.. Signed by Magistrate Judge Sonja F. Bivins on 9/24/2014. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
TONY M. GONZALES,
CAROLYN W. COLVIN,
Commissioner of Social Security,*
Civil Action No. 13-00126-B
Plaintiff Tony M. Gonzales (hereinafter “Plaintiff”) 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.
On April 11, 2014, the
parties consented to have the undersigned conduct any and all
referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.
Upon careful consideration
of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
Plaintiff protectively filed an application for disability
insurance benefits and supplemental security income on May 6,
2010. (Doc. 14 at 1; Tr. 123-33).
Plaintiff alleges that he
has been disabled since April 10, 2009 because he was born with
his feet backwards; he suffers from arthritis, leg pain, and
swelling; and he has trouble standing. (Tr. 147).
applications were denied and upon timely request, he was granted
an administrative hearing before Administrative Law Judge Katie
H. Pierce (hereinafter “ALJ”) on October 12, 2012.
attended the hearing. (Id. at 24).
On February 7, 2012, the ALJ
issued an unfavorable decision finding that Plaintiff is not
disabled. (Id. at 6-19).
The Appeals Council denied Plaintiff’s
request for review on February 7, 2013. (Id. at 1-3).
ALJ’s decision dated February 7, 2012 became the final decision
of the Commissioner.
The parties waived oral argument (Docs.
25, 26), and 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).
Issue on Appeal
Whether the ALJ erred in failing to assign
controlling weight to the opinion of Plaintiff’s
III. Factual Background
Plaintiff was born on September 28, 1969, and was 42 years
of age at the time of his administrative hearing on October 12,
2011. (Tr. 29).
Plaintiff testified at the hearing that has a
According to Plaintiff, he last worked in a prep kitchen with
All States Employer. (Id.).
Plaintiff testified that he was
born crippled and his legs were put in braces while his bones
were still soft. (Id. at 30).
He further testified that over
the years, he has gotten “worse and worse inside [his] bones and
recommended that he have surgery to “reset” his shins; however,
he did not have insurance to cover the procedure. (Id. at 30,
inflammatory medications, which help relieve the swelling and
Plaintiff testified that his left shoulder has been dislocated
several times, that doctors told him that he has impingement in
recommended surgery on his shoulder, and that he was not able to
afford the surgery. (Id. at 30-31). Plaintiff also contends that
two of his fingers on his right hand were cut off years ago and
that although they were sewn back to his hand, “[t]hey’re just
On Plaintiff’s function report, he reported that his daily
cooking. (Id. at 152).
He further reported that he has no
limitations with regard to his personal care, that he prepares
outside, watches sports, and plays cards “as much as possible,”
weekly. (Id. at 153-56).
Plaintiff also reported that he is
able to lift up to 30 pounds and walk one block before needing
to rest. (Id. at 157).
The claimant has the following severe impairments:
generalized osteoarthritis, and adjustment disorder
with depressed mood
(20 CFR 404.1520(c)
(Id. at 11).
With respect to Plaintiff’s RFC, the ALJ stated
After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform a reduced
range of sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except the claimant is
occasionally push/pull arm controls with the left
upper extremity; occasionally reach overhead; never
lift and carry overhead; occasionally stoop, kneel,
crouch, balance, and climb stairs and ramps; never
The ALJ also determined that Plaintiff has not engaged in
substantial gainful activity since April 10, 2009, and that he
does not have an impairment or combination of impairments that
meets or medically equals any of the listed impairments
contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 1112).
routine, repetitive tasks; adapt to minimal changes
in the work setting; frequently interact with coworkers, supervisors, and the public; and maintain
attention and concentration up to two hours at a
In making this finding,
the undersigned has
considered all symptoms and the extent to which
these symptoms can reasonably be accepted as
consistent with the objective medical evidence and
other evidence, based on the requirements of 20 CFR
404.1529 and 416.929 SSRs 96-4p and 96-7p.
undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527
416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. .
After careful consideration of the evidence, the
undersigned finds that the claimant’s medically
determinable impairments could reasonably be expect
to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms
are not fully credible to the extent they are
inconsistent with the above residual functional
(Id. at 14-15).
In her decision, the ALJ also outlined Plaintiff’s medical
history as follows:
The claimant’s treating source medical records show
that he began receiving treatment at the Mobile
County Department of Health in June 2010. At that
time, he reported that he was born “crippled” with
his feet backwards. No surgery was performed, but
he did wear braces until age 5 when his mother took
them off, and he learned to walk with a limp. The
claimant complained of unbearable pain from his
knees to ankles and feet, as well as in his
shoulders and back. The claimant also reported that
his hands and face were burned with antifreeze in a
mechanic shop a few months prior. His face was
noted to be healed, and his hands were noted to be
discolored and healing. Physical examination showed
that the claimant was in no acute distress, and he
had tenderness to palpation of the legs and knees
bilaterally. He was diagnosed with knee joint pain
and ankle point pain. The claimant was prescribed
Ibuprofen and x-rays were ordered.
X-rays of the ankle were normal; x-rays of the
right foot showed mild narrowing of the first
metatarsophalangeal joint; x-rays of the bilateral
lower leg were normal; x-rays of the bilateral
knees were normal; and x-rays of the bilateral hips
were normal. The claimant returned to the Health
Department in July 2010 for follow up and Dr.
Sherman noted that x-rays were essentially normal.
He diagnosed claimant with arthropathy, backache,
and knee joint pain and added Darvocet to the
claimant’s medication list. . . .
The claimant returned for a follow up in November
2010 with additional complaints of finger joint
pain and swelling. Dr. Sherman discontinued the
Darvocet and noted that the claimant had an
atypical reaction. Physical examination of the
shoulders and knees showed no abnormalities. Dr.
Sherman diagnosed the claimant with subluxation of
the left shoulder and congenital foot deformity and
added the Naprosyn to the claimant’s medications. .
The claimant returned for treatment in April 2011
with complaints of constant pain from arthritis
with localized joint stiffness, which was worse in
the mornings. The claimant was again noted to be in
no acute distress in spite of the fact that he
reported his pain level as 10 out of 10. Physical
examination showed no abnormalities of the spine,
no abnormalities of the hips, and no abnormalities
of the knees. The claimant had tenderness to
palpation of the first toe of the right foot. The
claimant was diagnosed with the arthropathy and
generalized osteoarthritis. His medications were
changed to Mobic and Flexeril. When the claimant
returned for follow up in May 2011, he saw Mark A.
Pita, M.D., for the first time. Dr. Pita noted that
the claimant reported improvement with his new
medications and that his pain level was only 4 out
of 10. Physical examination showed only pain with
passive movement of the bilateral knees. The
claimant’s Mobic and Flexeril were continued and xrays were ordered. X-rays of the right foot again
metatarsophalangeal joint and x-rays of the left
shoulder showed large marginal osteophyte along the
X-rays of the ribs and hips were
normal. . . . Dr. Meyer 2 completed a clinical
assessment of pain form in which he opined that the
claimant had pain that would distract him [from]
adequately performing daily activities and work and
claimant’s pain and cause distraction from task or
total abandonment of tasks.
He opined that the
claimant’s pain would result in some limitations
but not to a degree as to cause serious problems at
He listed specific restrictions to the
claimant’s daily activities as limited ability to
walk and carry heavy weights. . . .
Later in May 2011, the claimant presented to Dr.
Meyer, a board certified orthopedic surgeon, at the
Stanton Road Clinic. The claimant reported his
gradual onset joint pain, including bilateral knee
pain, left shoulder pain, and rib pain. Physical
examination revealed decreased range of motion in
the knees bilaterally with no crepitus. There was
laxity to varus and valgus stress but negative
McMurray and Lachman’s test bilaterally. X-rays of
the knees showed no acute fracture dislocations,
but there was evidence of mild joint space
narrowing. Dr. Meyer diagnosed the claimant with
bilateral patellofemoral syndrome and noted that
the claimant had significantly weak quadriceps
strengthen these muscles and he prescribed Ultram.
. . . The claimant returned to Dr. Meyer in
September 2011 with complaints of left upper
extremity pain and bilateral shin pain. Physical
examination showed full range of motion in the
While the ALJ lists Dr. Meyer as the physician who
completed Plaintiff’s Clinical Assessment of Pain, the record
reflects that the questionnaire was actually completed by Dr.
Pita during Plaintiff’s first visit with Dr. Pita on May 9,
2011. (Tr. 248-49).
knees and what appeared to be tibial torsion with
intoeing bilaterally of the lower extremities. He
diagnosed the claimant with bilateral tibial pain
and noted that if the claimant received medical
insurance, he could possibly undergo evaluation for
any surgical indication that could be addressed to
alleviate his pain of the lower extremities and
improve function. . . .
In addition to these treatment notes, there is also
medical evidence from a consultative examination
performed in August 2010 by Michael C. Madden, M.D.
Dr. Madden noted that the claimant reported his
daily activities as walking during the day and
light chores. Physical examination showed that the
claimant was in no apparent distress. His back was
non-tender and a straight leg raising was negative.
He did have some left hip tenderness and a slight
limp. When squatting, the claimant was only able to
bend his knees 90 degrees, and he had decreased
range of motion in his left shoulder. Dr. Madden
bilateral knee pain, and left shoulder pain. He
opined that the claimant would be able to perform
normal duty work activities such as sitting,
standing, hearing, and speaking, with a decreased
capacity for walking and lifting and carrying heavy
objects. . . .
(Id. at 15-16).
The ALJ also discussed the weight she assigned to medical
evidence of record and explained as follows:
The medical evidence supports a finding that the
claimant will be capable of performing a reduced
range of sedentary work. Moderate weight is given
to the pain form completed by Dr. Pita, which
limited the claimant’s ability to walk and carry
heavy weight, but did not preclude the claimant’s
ability to perform previous work. This form is
persuasive but not entitled to controlling weight
because Dr. Pita indicated that the form was
completed on his initial visit with the claimant
and thus, he is not considered a treating source.
assessment regarding the level of distraction
caused by the claimant’s pain is not consistent
with his statement that the claimant’s pain would
not result in limitations to a degree that would
cause serious problems at work. Great weight is
given to Dr. Madden’s opinion. . . that the
claimant would be able to perform normal duty work
with limitations in the ability to walk and carry
heavy objects. It is consistent with the objective
medical evidence of weakened quadriceps, mild right
toe joint narrowing, and mild knee joint narrowing,
and with treating source notes. The occasional
pushing and pulling limitations of the lower
extremities and the occasional posture limitations
are consistent with the findings of Dr. Meyer. . .,
and the essentially normal x-rays, as well as the
findings of Dr. Madden. The limitations on reaching
overhead and occasional pushing and pulling with
the left upper extremity is supported by the
shoulder x-ray. . ., which shows a large marginal
osteophyte, and is supported by the decreased range
of motion as evidenced [by Dr. Madden’s findings].
(Id. at 17).
concluded that Plaintiff is not capable of performing his past
work as a street sweeper. (Id. at 18).
Consistent with the VE’s
residual functional capacity for a reduced range of sedentary
work, as well as his age, education, and work experience, there
are other jobs existing in the national economy that Plaintiff
is able to perform, such as assembler, call out operator, and
surveillance system monitor. (Id. at 18-19).
Thus, the ALJ
concluded that Plaintiff is not disabled. (Id. at 19).
Standard of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
legal standards were applied.3 Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990).
A court may not decide the facts anew,
reweigh the evidence, or substitute its judgment for that of the
Commissioner. 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
exists, a court must view the record as a whole, taking into
Commissioner’s decision. Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
An individual who applies for Social Security disability
Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
determining if a claimant has proven his disability. 4 20 C.F.R.
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
automatically found disabled regardless of age, education, or
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; and (4) the claimant’s age,
education and work history. Id.
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
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
§§ 404.1520, 416.920.
reversible error by failing to assign controlling weight to the
opinion of Dr. Pita, as set forth in the Clinical Assessment of
Pain form dated May 9, 2011. (Doc. 11 at 6-12).
contends that the ALJ properly articulated valid reasons for
assigning moderate weight to Dr. Pita’s opinion and that the
ALJ’s RFC assessment is supported by substantial evidence. (Doc.
20 at 9-11).
The Court agrees with Defendant that Plaintiff’s
claim is without merit.
“It is well-established that the testimony of a treating
Commissioner of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004)
accompanied by objective medical evidence, is wholly conclusory,
objective medical evidence. Id.; see also Green, 223 Fed. Appx.
at 922-23 (ALJ had good cause to devalue a treating physician’s
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)).
opinion where it was inconsistent with the objective medical
based on the: (1) length of the treatment relationship and the
treatment relationship; (3) the medical evidence and explanation
supporting the opinion; (4) consistency with the record as a
whole; (5) specialization in the pertinent medical issues; and
Weekley v. Commissioner of Soc. Sec., 486 Fed. Appx.
806, 808 (11th Cir. 2012) (unpublished) (citing 20 C.F.R. §
weight, and the reasons are supported by substantial evidence,
there is no reversible error. See Forrester v. Commissioner of
(unpublished) (“We have held that an ALJ does not need to give a
treating physician’s opinion considerable weight if evidence of
Indeed, an ALJ “may reject any medical opinion, if the evidence
Although the ALJ must evaluate the treating physician’s opinion
determination of disability is reserved for the ALJ.” Green, 223
In the instant case, the ALJ articulated valid reasons for
assigning moderate weight to the opinions expressed by Dr. Pita
in the Clinical Assessment of Pain form which he completed on
May 9, 2011.
The record reflects that Plaintiff was treated at
the Mobile County Department of Health beginning in July 2010.
(Tr. 199). It appears that early on, Plaintiff was treated by
Dr. Sherman and various physician assistants on staff. (Id. at
On May 9, 2011, Plaintiff was treated at the Mobile
County Department of Health by Dr. Pita. (Id. at 248-49).
Pita evaluated Plaintiff and completed the Clinical Assessment
of Pain form. During the visit, Plaintiff reported that his pain
medications, which were prescribed by Dr. Sherman in April 2011,
were successfully helping to control his pain. (Id. at 250).
Dr. Pita’s physical examination revealed that Plaintiff had pain
with passive movement of the bilateral knees but no back pain,
neck pain, or other musculoskeletal pain. (Id.).
On the pain
[him] from adequately performing daily activities or work,” that
physical activity would “greatly increase [his] pain and cause
distraction from task or total abandonment of task,” and that
Plaintiff had limited ability to walk or carry heavy weights.
Plaintiff’s pain, he would be able to perform his previous work,
as “limitations may be present but not to a degree as to cause
serious problems at work.” (Id. at 149).
consideration to Dr. Pita’s opinions and clearly articulated the
reasons for assigning only moderate weight to the opinions that
Dr. Pita expressed in the
Clinical Assessment of Pain
occasion during which Dr. Pita had treated Plaintiff, as well as
the fact that the pain form contained internal inconsistencies.
(Id. at 17).
The undersigned notes that while the record does
not reflect that Dr. Pita had treated Plaintiff before, one
would assume that he had the benefit of Dr. Sherman’s treatment
notes since Plaintiff was treated by both Dr. Sherman and Dr.
Pita through the Mobile County Department of Health. (Id. at
199-216, 250-65). Thus, it is questionable whether the lack of a
sufficient basis for according Dr. Pita’s opinions only moderate
However, as correctly found by the ALJ, the opinions
expressed by Dr. Pita were internally inconsistent and were not
consistent with some of his own findings during his examination
As noted supra, on the Clinical Assessment of Pain form,
Dr. Pita opined that Plaintiff’s pain would “distract [him] from
adequately performing daily activities or work,” that physical
distraction from task or total abandonment of task,” and that
Plaintiff was limited in his ability to walk or carry heavy
Plaintiff’s pain and limitations, he could perform his previous
work with no serious problems. (Id. at 148-49).
As found by the
ALJ, Dr. Pita’s findings regarding the severity of Plaintiff’s
pain are simply not consistent with his finding that Plaintiff’s
Plaintiff’s pain are not consistent with his treatment notes
which reflect that on May 9, 2011, Plaintiff reported his pain
helping to relieve his pain.
Thus, the ALJ did not err in
limiting the weight she accorded to Dr. Pita’s opinions.
ALJ’s finding that Plaintiff is not
supra, Dr. Pita opined that Plaintiff had limited ability to
problems at work.
Additionally, upon Dr. Madden’s consultative
examination of Plaintiff, he found that Plaintiff suffered from
left hip pain, bilateral knee pain, and left shoulder pain, that
Plaintiff had a “somewhat” decreased capacity for walking and
lifting, carrying, and handling heavy objects, secondary to his
left hip and shoulder pain, and that
Plaintiff’s ability to
speaking, and traveling appeared to be adequate for normal-duty
work. (Id. at 240).
The ALJ’s RFC assessment for a reduced
clearly took into account the limitations noted by both Dr. Pita
overhead; occasionally stoop, kneel, crouch, balance, and climb
stairs and ramps; never crawl; and never climb ladders, ropes,
or scaffolds.” These RFC restrictions accommodated Plaintiff’s
knee, hip, and left shoulder pain and are consistent with the
limitations noted by Dr. Pita and Dr. Madden.
When presented with Plaintiff’s RFC for a reduced range of
experience, the VE testified that Plaintiff can perform the jobs
monitor. (Id. at 35).
Plaintiff has not challenged the ALJ’s
finding that there are other jobs in the national economy that
he can perform with the RFC.
Because the ALJ’s findings are
supported by substantial evidence of record, the Court affirms
the ALJ’s decision denying Plaintiff’s request for benefits.
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for a
disability insurance benefits and supplemental security income
DONE this 24th day of September, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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