Lampley v. Colvin

Filing 21

Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED.. Signed by Magistrate Judge Sonja F. Bivins on 9/23/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FRED C. LAMPLEY,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

CIVIL ACTION NO. 13-00279-B

ORDER
Plaintiff Fred C. Lampley (hereinafter “Plaintiff”) brings
this action seeking judicial review of a final decision of the
Commissioner of Social Security denying his claim for a period
of disability, 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.

On May 1,

2014, the parties consented to have the undersigned conduct any
and all proceedings in this case.

(Doc. 18).

Thus, the action

was referred to the undersigned to conduct all proceedings and
order

the

entry

of

judgment

in

accordance

with

636(c) and Federal Rule of Civil Procedure 73.

28

U.S.C.

§

Upon careful

consideration of the administrative record and the memoranda of
the

parties,

it

is

hereby

Commissioner be AFFIRMED.

ORDERED

that

the

decision

of

the

I.

Procedural History
Plaintiff protectively filed an application for a period of

disability,

disability

insurance

benefits,

security income on September 23, 2009.

and

supplemental

(Tr. 149-59).

Plaintiff

alleged that he has been disabled since May 9, 2009, due to
“left hip, heart condition, pinch[ed] nerve in back, [and] spurs
[in]

groin.”

(Id.

at

173).

Plaintiff’s

applications

were

denied and upon timely request, he was granted an administrative
hearing

before

(hereinafter

Administrative

“ALJ”)

on

Law

February

Judge

24,

Roger

2011.

A.

(Id.

Nelson
at

36).

Plaintiff attended the hearing with his counsel and provided
testimony related to his claims.
expert

(“VE”)

testimony.

also

appeared

(Id. at 72).

unfavorable
(Id. at 31).

decision

at

(Id. at 42).
the

hearing

A vocational
and

provided

On January 5, 2012, the ALJ issued an

finding

that

Plaintiff

is

not

disabled.

The Appeals Council denied Plaintiff’s request for

review on April 5, 2013.

(Id. at 1).

The parties waived oral

argument (Doc. 17), 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).
II.

Issue on Appeal
Whether the ALJ erred in
not giving
controlling weight to the opinions of
Plaintiff’s treating physician?

2

III. Factual Background
Plaintiff was born on April 10, 1963, and was forty-seven
years

of

age

at

the

February 24, 2011.

time

of

(Tr. 156).

his

administrative

on

Plaintiff testified that he went

through the eighth grade in school

1

and last worked in 2008

performing apartment maintenance and remodeling.
204).

hearing

(Id. at 44,

Prior to 2008, Plaintiff worked as a truck driver, in

general construction, and at Lowe’s as a sales associate.

(Id.

at 46-47).
Plaintiff testified that he stopped working “[b]ecause of
[his] hip.”

(Id. at 48).

According to Plaintiff, his treating

physician, Dr. Bose, recommended hip joint replacement surgery,
but Plaintiff did not have health insurance or money to pay for
it.

(Id.

at

53,

65).

Plaintiff

also

testified

that

his

treating physician Dr. Dulanto, is “trying to help [him]” and
“wants [Plaintiff] to try to get on disability so [he] can get
his

hip

replaced.”

(Id.

at

54).

Plaintiff’s

medications

include Lortab (3 times a day for pain), Nitroglycerin (for his
heart), Meclizine (for dizziness), Albuterol (for breathing),
and Neurontin (for nerve pain).

(Id. at 50-55, 59).

Plaintiff testified that he lives with his wife and that he
1

Plaintiff testified that he was in special education classes
for one year because he was having trouble focusing. (Tr. 61).
He dropped out of school in the eighth grade at the age of
sixteen. (Id. at 60).

3

cannot take care of his personal needs because of hip pain.
(Id. at 42, 57).

According to Plaintiff, he can read and write

“okay,” and he can maintain a check book, read the newspaper,
and drive. (Id. at 61-62).

Plaintiff further indicated that he

can only stand and sit for about thirty minutes and is able to
walk about a block before becoming uncomfortable.
56).

(Id. at 55-

Additionally, Plaintiff is able to wash dishes and do

laundry;

however,

he

cannot

do

yard

work.

(Id.

at

57).

Plaintiff testified that on a scale of one to ten, his pain is
an eight for about four or five hours every day.
IV.

(Id. at 54).

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
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.
2

must

be

Brown v.

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).
4

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
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, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

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
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

Social

sequential

5

see

also

20

Security

evaluation

C.F.R.

§§

regulations
process

for

determining if a claimant has proven his disability. 3

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since May 9,
2009,

the

impairments

alleged
of

a

onset
history

date,
of

and

single

that

he

vessel

has

the

coronary

severe

disease,

arthritis of the left hip, lumbar degenerative disc disease, and
arthritis of the thoracic and cervical spine.

(Tr. 23).

The

ALJ further found that Plaintiff does not have an impairment or
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; 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
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, 836 (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

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.
The

ALJ

(Id.).
concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform light work,
with the following limitations: Plaintiff can stand and walk in
combination for 3 to 3½ hours in an 8-hour workday.

Plaintiff

can sit for up to 6 hours in an 8-hour workday with a sit/stand
option every 30 to 45 minutes.

Plaintiff can lift and carry 5

to 10 pounds frequently and can occasionally lift and carry up
to 20 pounds.

Plaintiff can occasionally bend, stoop, squat,

and

Plaintiff

crouch.

scaffolds.

cannot

climb

ladders,

ropes,

or

Plaintiff can rarely, i.e., no more than 20% of the

workday, push or pull with his feet and legs.
tolerate

concentrated

workday,

to

exposure,

respiratory

smoke, and solvents.

i.e.,

irritants,

more

such

as

Plaintiff cannot
than

20%

fumes,

of

the

chemicals,

The claimant cannot tolerate exposure to

extreme heat or cold.

(Id. at 24).

The ALJ also determined

that while Plaintiff’s medically determinable impairments could
reasonably

be

expected

to

produce

the

alleged

symptoms,

his

statements concerning the intensity, persistence and limiting
effects of the alleged symptoms were not credible to the extent
that they were inconsistent with the RFC.
Given

Plaintiff’s

RFC,

the

7

ALJ

(Id. at 25).

found

that

Plaintiff

is

incapable

of

maintenance
material
testimony

performing
man,

truck

handler.
of

a

his

driver,

(Id.
VE,

past

at

the

as

an

apartment

construction

29).
ALJ

work

laborer,

and

However,

utilizing

the

concluded

that

considering

Plaintiff’s residual functional capacity for a range of light
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 “office helper,”

“self storage

rental

of

clerk,”

and

“ticket

taker/seller,”

classified as light and unskilled.

all

(Id. at 29-30).

ALJ concluded that Plaintiff is not disabled.

which

are

Thus, the

(Id.).

Also pertinent to this appeal are the findings made by the
ALJ in reaching his decision that Plaintiff is not disabled.

In

assessing Plaintiff’s RFC, the ALJ made the following relevant
findings:
In terms of the claimant’s alleged heart
condition, the claimant was admitted to the
hospital in March 2007 after complaining of
chest tightness and shortness of breath
(Exhibit 1F). The claimant was treated with
aspirin,
beta
blockers,
nitroglycerin,
heparin, glycoprotein 2b3a inhibitors.
The
claimant continued to have occasional chest
pain while in the hospital but overall
remained chest pain free with acceptable
hemodynamics. The claimant was subsequently
transferred to a different hospital, where
he
underwent
a
cardiac
catheterization
(Exhibits
1F,
2F).
The
cardiac
catheterization showed severe single vessel
coronary
artery
disease,
normal
left
systolic function, no aortic stenosis, and

8

no significant mitral regurgitation (Exhibit
2F).
An EKG showed changes consistent with
non-ST elevation myocardial infarction. A
stent was placed in the mid right coronary
artery with no complications. The claimant
was
discharged
in
stable
condition
on
Plavix, Lisinopril, Atenolol, Pravastarin,
and aspirin. The claimant was instructed to
avoid heavy exertion for two weeks and to
remain off work for two weeks. Chest x-rays
taken in February 2008 showed a stable,
negative chest (Exhibit 4F). Subsequent
chest x-rays taken in May 2009 showed no
important changes in the appearance of the
claimant’s chest since the February 2008 xrays (Exhibit 4F). X-rays of the claimant’s
chest taken in April 2010 showed no acute
abnormalities (Exhibit 9F).
Dr. Rihner, a cardiologist, examined the
claimant on a consultative basis in August
2011 (Exhibit 16F). The claimant denied any
major angina spells, but did complain of
some atypical sharp chest pain, which Dr.
Rihner did not even believe to be cardiac in
nature.
The
claimant
also
alleged
experiencing
some
mild
dyspnea
with
exertion.
Upon
examination,
Dr.
Rihner
observed a regular rate and rhythm with an
apical S4.
There were no murmurs or rubs.
An EKG showed re-polarization changes and
nonspecific ST-T wave changes inferiorly.
The
claimant’s
lungs
were
clear
to
auscultation
and
normal
to
percussion.
Examination
of
the
claimant’s
musculoskeletal system showed a normal back,
gait, strength, and tone.
Dr. Rihner noted
that the claimant was in no acute distress.
Dr. Rihner’s impression is history of single
vessel coronary disease treated with a stent
and a documented normal ejection fraction.
Based on the claimant’s symptoms and the
information available, Dr. Rihner “did not
feel that [the claimant] is significantly
disabled from a cardiovascular standpoint.”
In

terms

of

the

claimant’s

9

alleged

musculoskeletal impairments, the claimant
has a history of lower extremity pain,
dating back to at least 2007 (Exhibit 1F). A
CT scan of the claimant’s chest taken in
March 2007 showed degenerative changes of
the spine (Exhibit 1F). The claimant sought
treatment from Drs. Cockrell and Bose at the
Orthopedic Group beginning in July 2008
(Exhibit 6F).
X-rays of the claimant’s hip
taken in July 2008 showed questionable early
spurring around the acetabulum bilaterally.
X-rays of the claimant’s lumbar spine taken
in
July
2008
showed
some
degenerative
changes in the lower lumbar spine. The
claimant was initially prescribed Mobic and
Lortab for pain management and referred for
an MRI. An MRI performed in July 2008 showed
neuroforaminal
narrowing
at
L5-S1
bilaterally. Dr. Cockrell recommended a
lumbar epidural block, which the claimant
received in August 2008. The epidural helped
but the claimant continued to complain of
left hip pain. Dr. Cockrell referred the
claimant to Dr. Bose for further evaluation.
Dr. Bose diagnosed the claimant in October
2008 with osteoarthritis of the left hip and
injected his left hip. Dr. Bose injected the
claimant’s left hip again in March 2009 and
in June 2009.
Dr. Crotwell, an orthopedic specialist,
evaluated the claimant on a consultative
basis in May 2011 (Exhibit 15F).
The
claimant reported back and bilateral hip
pain with radicular pain down the left thigh
to the calf. The claimant reported increased
pain in the groin with rotation, walking,
and standing after any long period of time.
Upon examination, the claimant was able to
flex, bend over, twist,
and get into
contorted positions to demonstrate where the
pain was in his left leg and down his left
thigh. The claimant put his hand all the way
down his calf in flexion past 90 degrees
with no pain. The claimant was able to toe
and heel walk. The claimant’s reflexes and
sensory were normal. Motor was 5/5. Straight

10

leg raise sitting was 90 degrees right and
left with no pain. The claimant’s hip
rotation was extremely limited,
with the
right at 80 percent of internal and external
rotation and the left at 50 percent or less
of
internal
and
external
rotation
and
limited abduction. Straight leg raise lying
right 80 degrees, left 70 degrees, with
increased pain with plantar flexion and
decreased with dorsiflexion. The claimant
exhibited no real radicular pain, mainly
back pain, which Dr. Crotwell noted was
“very inconsistent.” The claimant’s left
calf and thigh were slightly smaller than
the right.
Examination of the upper
extremities
showed
normal
reflexes
and
sensory, motor 5/5, normal grip strength,
normal intrinsics and normal thenars. X-rays
of the claimant’s pelvis showed moderate
arthritis of the left hip with spurs and
some joint space collapse. X-rays of the
cervical spine showed mild osteoarthritis.
X-rays of the claimant’s thoracic spine
showed mild to moderate arthritis with
moderate spurring. X-rays of the lumbar
spine showed moderate arthritis with some
disc space collapse, especially at L5-S1
with some spurring present. Dr. Crotwell’s
diagnostic impression was of moderate to
severe arthritis of the left hip with
limited motion, moderate lumbar degenerative
disc disease, mild to moderate arthritis of
the thoracic spine, and mild arthritis of
the cervical spine. Dr. Crotwell noted that
the claimant has some problems, particularly
in the left hip, which may eventually need a
joint replacement, but that he could carry
out medium to light work, could definitely
carry out light and sedentary work and could
definitely work an eight-hour workday.
As for the claimant’s subjective complaints
of chest pain and shortness of breath, the
claimant’s
allegations
are
not
fully
credible.
The
record
documents
only
occasional complaints of chest pain and
shortness of breath. The claimant has not

11

had any heart attacks or sought regular
treatment from a cardiologist since 2007.
Although the claimant sought follow up
treatment
from
a
cardiologist
on
one
occasion in May 2010, he failed to show for
his
next
appointment
in
November
2010
(Exhibit 11F).
Dr. Rihner’s examination
findings
were
essentially
benign.
Additionally,
the
claimant
has
a
long
history of tobacco abuse; and has failed to
follow up on repeated recommendations from
his treating physicians to quit smoking
(Exhibits 1F, 2F, 3F, 7F, 11F, 13F, 17F).
Consequently, the undersigned finds that the
claimant can clearly still perform a reduced
range of light work. The postural and
environmental
limitations
also
fully
accommodate the claimant’s heart condition,
in
addition
to
the
potentiality
of
occasional chest pain, shortness of breath,
and/or any medication side effects.
As for the claimant’s subjective complaints
of hip, leg, and back pain, the claimant’s
allegations are also not fully credible. The
claimant has a history of conservative
treatment, consisting primarily of routine
physical examinations with his primary care
physician, Dr. Dulanto,
at the Franklin
Primary
Health
Center,
and
medication
refills.
Although Dr. Dulanto referred the
claimant to an orthopedic specialist, there
is no evidence in the record that the
claimant sought treatment from an orthopedic
specialist since he last saw Dr. Bose for a
hip injection in June 2009 and was denied
additional narcotic pain medication in July
2009 (Exhibit 6F).
Treatment notes show
that the claimant had a good response to the
hip injections (Exhibit 6F). Moreover,
Dr.
Bose described the claimant’s hip arthritis
as only mild in severity (Exhibit 6F). The
claimant told Dr. Dulanto that his previous
orthopedic
surgeon
recommended
a
hip
replacement; however, there is no evidence
in the record that Dr. Bose, Dr. Cockrell,
or any other orthopedic specialist actually

12

recommended such surgery on the claimant’s
hip. Moreover, while Dr. Dulanto noted that
the claimant’s osteoarthritis was severe and
disabling
(Exhibit
13F),
he
simply
prescribed pain medication. There is no
evidence in the record that the claimant was
referred to a pain management specialist or
even physical therapy.
There is also no
evidence in the record of any treatment from
Dr. Dulanto or any other physician at the
Franklin
Primary
Health
Center
since
November 2010.
Dr. Dulanto’s most recent
treatment notes also document essentially
normal
musculoskeletal
and
back
exams
(Exhibit 13F). At that time, Dr. Dulanto
recommended follow up treatment in two
months, which suggests that the claimant’s
symptoms were adequately controlled and not
so severe as to warrant more frequent
treatment. Similarly, treatment notes dated
October 2010 show a full range of motion.
Additionally,
although
the
claimant
testified that he can only walk one block,
the claimant told Dr. Crotwell in May 2011
that he could walk approximately half a mile
(Exhibit 15F). Dr. Crotwell did not note any
gait abnormalities. Dr. Rihner also noted
that the claimant walked with a normal gait
(Exhibit 16F). Hospital treatment notes from
September 2011 likewise show a normal gait
and normal strength throughout (Exhibit
17F). Although the claimant did present to
the emergency room on two separate occasions
in September 2011 complaining of hip and
back pain, hospital treatment notes indicate
that the claimant was actually malingering
and
engaging
in
drug
seeking
behavior
(Exhibit 17F). After the emergency room
physician refused to prescribe narcotic pain
medication, the claimant left the hospital
before the nurse could even give him an
alternative prescription for steroids and
his discharge paperwork.
Finally,
the
undersigned
finds
the
claimant’s allegation that he is unable to
afford medical treatment or medication not

13

fully credible in light of the fact that the
claimant continues to smoke. The undersigned
nonetheless acknowledges the claimant’s pain
and other symptoms could still be reasonably
expected
to
cause
him
some
functional
limitations and, accordingly, has precluded
him from working at the medium to heavy
exertional levels of his prior work and has
instead limited the claimant to a reduced
range of light work with a sit/stand option.
The undersigned has also precluded the
claimant from climbing ladders, ropes, and
scaffolds and has limited the claimant to
only rarely pushing and pulling with his
feet and legs and occasionally bending,
stooping, squatting, and crouching.
The
undersigned finds no support in the record
for the additional functional limitations
proposed by the claimant’s representative at
the hearing, especially when Dr. Dulanto’s
proposed functional limitations are rejected
in favor of the more complete and highly
credentialed opinions of Drs. Rihner and
Crotwell.
As for the opinion evidence, the undersigned
gives significant weight to the opinion of
Dr. Rihner (Exhibit 16F), other than his
limitations regarding the claimant’s use of
his
hands
and
some
environmental
limitations, which are not supported by Dr.
Rihner’s own examination findings or the
record as a whole. The record does not
substantiate the presence of limitations on
the claimant’s use of his hands or any
significant ongoing cardiac problems which
would
limit
his
ability
to
work
at
unprotected
heights,
around
moving
mechanical
parts,
or
operate
a
motor
vehicle.
For
example,
the
claimant
specifically acknowledged in May 2011 that
he drives unrestricted (Exhibit 15F).
The
undersigned proffered the report and opinion
of
Dr.
Rihner
to
the
claimant’s
representative (Exhibit 13E). The claimant’s
representative
did
not
respond
to
the
proffer, even though he did respond at

14

length
to
Dr.
consultative report.

Crotwell’s

earlier

The
undersigned
also
gives
significant
weight to the opinion of Dr. Crotwell to the
extent is consistent with the above residual
functional capacity (Exhibit 15F).
The
claimant’s representative objected to the
report and findings of Dr. Crotwell (Exhibit
12E) on the basis that Dr. Crotwell’s report
is marked “preliminary.”
The report makes
clear, however, that Dr. Crotwell initially
dictated his report. By signing the report,
Dr. Crotwell indicated that he approved the
report
as
final.
The
claimant’s
representative
also
objected
to
Dr.
Crotwell’s PCE finding that the claimant can
sit, stand, and walk for two hours at a time
each and can also perform each of these
activities for a total of 8 hours during an
8-hour workday. While Dr. Crotwell noted
that the claimant has “some problems,” he
nonetheless specifically found that the
claimant could work an 8-hour day in
moderate to light and sedentary work as set
forth on the PCE. In any event, the
limitations set forth in the undersigned’s
residual functional capacity finding above
are actually more restrictive than Dr.
Crotwell’s opinion. . . .
The undersigned gives no weight to the
opinion of Dr. Dulanto, the claimant’s
treating
physician
(Exhibit
8F).
Dr.
Dulanto completed a Clinical Assessment of
Pain form in June 2010. He opined that the
claimant’s pain is intractable and virtually
incapacitating, that physical activity will
increase the claimant’s pain to such an
extent that bed rest will be necessary, and
the claimant will be totally restricted and
unable to function at a productive level of
work. Dr. Dulanto’s opinion is inconsistent
with his own treatment notes, which show
some reduced range of motion, but clearly
nothing objectively disabling. Dr. Dulanto’s
most recent treatment notes even show normal

15

musculoskeletal and back exams (Exhibit
13F).
Moreover, Dr. Dulanto noted that the
claimant has been at this level for “years;”
however, the claimant worked successfully
for many years, until May 2009, despite his
alleged pain. Dr. Dulanto also noted that
the claimant cannot walk outside. Just two
months later, however, the claimant was
treated at the emergency room after becoming
overheated while working outside (Exhibit
12F).
The hospital treatment notes show
normal musculoskeletal and extremity exams,
with full range of motion (Exhibit 12F).
Although Dr. Dulanto does have a treating
relationship with the claimant, the record
shows that actual treatment visits have been
relatively infrequent. Finally, Dr. Dulanto
is a family practice physician, not an
orthopedic
surgeon
or
pain
management
specialist, and thus his opinion appears to
rest in large part on an assessment of an
impairment outside of his area of medical
expertise. Instead, his opinion appears far
more
reliant
on
claimant’s
own
rather
dubious subjective complaints.
In
sum,
the
above
residual
functional
capacity
assessment
is
supported
by
a
preponderance of the most credible evidence
of
record,
including
the
examination
findings and opinions of Drs. Rihner and
Crotwell,
the
claimant’s
history
of
conservative and sporadic treatment, and
physician and hospital treatment notes.
(Tr. at 25-29) (emphasis in original).

The Court now considers

the foregoing in light of the record in this case and the issue
on appeal.
1.

Issue
Whether the ALJ erred in not giving
controlling weight to the opinions of
Plaintiff’s treating physician?

16

Plaintiff

argues

that

the

ALJ

erred

in

not

giving

controlling weight to the opinions of his treating physician,
Dr.

Felix

Dulanto,

that

Plaintiff’s

pain

is

intractable

and

virtually incapacitating and prevents him from being able to
work. 4

(Doc. 12 at 2, 4).

The Commissioner counters that the

ALJ properly discounted Dr. Dulanto’s opinions because they are
inconsistent with the record evidence in this case.
10-14).

(Doc. 15 at

Having carefully reviewed the record in this case, the

Court agrees with Defendant that Plaintiff’s claim is without
merit.
Generally speaking, “[i]f a treating physician’s opinion on
the nature and severity of a claimant’s impairments is wellsupported

by

medically

acceptable

clinical

and

laboratory

diagnostic techniques, and is not inconsistent with the other
substantial

evidence

in

controlling weight.” 5

the

record,

the

ALJ

must

give

it

Roth v. Astrue, 249 F. Appx. 167, 168

(11th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(2)).
“An

administrative

considerable

weight

to

law

judge

must

the

opinion

of

accord
a

substantial

claimant’s

or

treating

4

The record shows that the ALJ gave “no weight” to the opinions
of Dr. Dulanto set forth in the June 17, 2010, Clinical
Assessment of Pain form. (Tr. 28).

5

“Controlling weight” is defined as a medical opinion from a
treating source that must be adopted. See SSR 96–2P, 1996 SSR
LEXIS 9, *3, 1996 WL 374188, *1 (1996).

17

physician unless good cause is shown to the contrary.” Broughton
v. Heckler, 776 F.2d 960, 961 (11th Cir. 1985)(citations and
internal quotation marks omitted).

“The requisite ‘good cause’

for discounting a treating physician’s opinion may exist where
the

opinion

is

not

supported

by

the

evidence,

evidence supports a contrary finding.”

or

where

the

Hogan v. Astrue, 2012

U.S. Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala.
2012).

“Good cause may also exist where a doctor’s opinions are

merely

conclusory,

inconsistent

with

the

doctor’s

medical

records, or unsupported by objective medical evidence.”
“[T]he

weight

afforded

a

treating

doctor’s

opinion

Id.

must

be

specified along with ‘any reason for giving it no weight, and
failure to do so is reversible error.’”

Williams v. Astrue,

2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1 (M.D. Fla.
2009); see also Phillips v.
Cir.

2004)

(“When

Barnhart, 357 F.3d 1232, 1241 (11th

electing

to

disregard

the

opinion

of

a

treating physician, the ALJ must clearly articulate [his or her]
reasons.”).
The
Plaintiff

record
for

in

six

this
months,

case

shows

that,

Dr.

Dulanto

after

completed

treating

a

Clinical

Assessment of Pain form dated June 17, 2010, in which he stated
that Plaintiff’s pain is caused by degenerative disc disease of
the

spine

and

severe

osteoarthritis

of

the

left

hip;

that

Plaintiff’s pain is “intractable and virtually incapacitating;”

18

that physical activity will increase Plaintiff’s pain to such an
extent that bed rest will be necessary; that Plaintiff’s pain
will

impact

his

ability

to

perform

his

past

work;

and

that

Plaintiff will be totally restricted and unable to function at a
productive work level.

(Tr. 295-96).

Dr. Dulanto further found

that Plaintiff “can’t walk outside his house” and has been at
his present level of pain for “years.”

(Id. at 296).

Dr.

Dulanto opined that Plaintiff needs a hip replacement, which, he
stated, Plaintiff cannot afford.

(Id. at 296).

Dr. Dulanto

concluded that Plaintiff cannot engage in any form of gainful
employment over an eight-hour day, noting that Plaintiff also
has coronary artery disease.
Plaintiff
Dulanto’s

argues

opinions

failing to do so.

that

(Id.).
the

controlling

ALJ

should

weight

(Doc. 12 at 1).

have
that

and

afforded
he

Dr.

erred

in

Having reviewed the record

at length, the Court finds that Dr. Dulanto’s opinions are not
supported by the record.
First, with respect to Plaintiff’s left hip impairment, Dr.
Dulanto’s

opinions

are

inconsistent

orthopedists,

Dr.

with

the

J.M.

opinions

Cockrell

and

of

Plaintiff’s

treating

Dr.

W.J. Bose.

As the ALJ articulated, in July, 2008, Dr. Cockrell

found that Plaintiff had good range of motion in his hip with
minimal pain.
that

time

(Id. at 290).

confirmed

that

X-rays of Plaintiff’s hip taken at
Plaintiff

19

had

nothing

more

than

“questionable early spurring around the acetabulum bilaterally.”
(Id.).

When Plaintiff continued to complain of left hip pain in

2008 and 2009, Dr. Bose diagnosed him with “osteoarthritis, left
hip”

and

ordered

a

series

provided “great benefit.”

of

6

injections

in

his

(Id. at 285-88).

hip,

which

The treatment

records of Drs. Cockrell and Bose, which reflect significant
improvement

in

Plaintiff’s

pain

symptoms

after

receiving

conservative injection therapy, undermine Dr. Dulanto’s opinions
that Plaintiff’s pain is intractable and incapacitating.7
In addition, as the ALJ articulated, Dr. Dulanto’s opinions
in

the

June

inconsistent
consultative

2010
with

Clinical
the

May

orthopedist,

Dr.

Assessment
2011

of

Pain

examination

William

Crotwell,

form

findings
which

are
of

showed

that Plaintiff’s reflexes and sensory were normal, that he was
able to flex, bend over, twist, and get into contorted positions
to demonstrate the location of his pain, and that his toe and
heel walk were normal.

(Id. at 342-43).

Although Dr. Crotwell

opined that Plaintiff has moderate to severe arthritis of the

6

Plaintiff also complained of generalized back and leg pain, and
x-rays confirmed “moderate to marked narrowing of the neural
foramen narrowing at L5-S1.” (Tr. 289).
However, the record
shows that an epidural block in August 2008 improved those
symptoms. (Id. at 288).

7

There is no evidence in the record that any of Plaintiff’s
treating physicians referred him to a pain management specialist
or even for physical therapy.

20

left hip and may eventually need a hip joint replacement, he
unequivocally concluded that Plaintiff could carry out light and
sedentary work and work an eight-hour workday.

(Id. at 344).

Moreover, Dr. Dulanto’s comment that Plaintiff “can’t walk
outside his house” is inconsistent with Plaintiff’s subsequent
report to Dr. Crotwell during the consultative examination that
he can walk approximately half a mile (id. at 342), as well as
the treatment records from Providence Hospital in August 2010
which show that

Plaintiff was treated in the emergency room

after “overheat[ing]” while “working outside” (id. at 322), and
the finding of consultative cardiologist, Dr. Rihner, in August
2011 that Plaintiff has a “normal . . . gait.” 8

(Id. at 348).

All of the foregoing evidence belies Dr. Dulanto’s opinion that
Plaintiff’s pain is incapacitating.
Similarly,

to

the

extent

that

Dr.

Dulanto

based

his

opinions on Plaintiff’s impairment of coronary artery disease,
those opinions are inconsistent with the record evidence in this
case,

including

the

examination

8

findings

and

opinion

of

Emergency room records dated September 4, 2011, also show that
Plaintiff presented with complaints of sciatica, and the
emergency room physician noted that Plaintiff walked with a
“normal gait.” (Tr. 366). Plaintiff was treated with steroids
and pain medication and discharged with Lortab and instructions
to see his primary care physician.
(Id. at 367).
Four days
later, Plaintiff returned to the emergency room but refused
treatment with steroids and left without further treatment after
being denied further narcotic pain medication. (Id. at 377).

21

consultative cardiologist Dr. Rihner that Plaintiff is simply
not “significantly disabled from a cardiovascular standpoint.”
(Id. at 349).
diagnosed

in

Although it is undisputed that Plaintiff was
2007

with

severe

single

vessel

coronary

artery

disease and underwent a coronary angioplasty at that time, the
record

shows

that

complications,

that

the

surgery

Plaintiff

was

recovered,

returned to work in two weeks.

performed
and

that

without
Plaintiff

(Id. at 237, 240, 245).

The

following year, in January 2008, Dr. Raymond Broughton noted
that Plaintiff was working, climbing several flights of stairs
each day, and having no chest pain or shortness of breath.
at 250).
rays

(Id.

Over the following three years, Plaintiff’s chest x-

showed

abnormalities.

a

stable,

non-enlarged

heart,

(Id. at 262, 268, 273, 309).

with

no

acute

In August 2011,

Dr. Rihner confirmed that Plaintiff had not had any subsequent
evaluation for his heart since receiving a stent in 2007, and
his findings upon examination were essential normal. 9
348).

(Id. at

This evidence is inconsistent with any opinion by Dr.

Dulanto that Plaintiff’s pain is incapacitating, in whole or in
9

Dr. Dulanto’s opinions are also inconsistent with Dr. Rihner’s
findings set forth in a Medical Source Statement dated August
17, 2011, that Plaintiff can frequently lift/carry 21 to 50
pounds, can occasionally lift/carry up to 100 pounds, can sit
for four hours at a time for a total of eight hours a day, can
stand for one hour at a time for a total of two hours a day, and
can walk for thirty minutes at time for a total of one hour a
day. (Tr. 349).

22

part, as a result of his cardiovascular disease.
For

each

Dulanto’s

of

these

opinions
Pain

set

reasons,
forth

form

are

the

in

Court

the

finds

June

inconsistent

that

2010

with

the

Dr.

Clinical

Assessment

of

record

evidence.

Therefore, the ALJ did not err in failing to give

controlling weight to those opinions, and Plaintiff’s claim is
without merit.
V.
For

Conclusion
the

reasons

set

forth

herein,

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 a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be AFFIRMED.
DONE this 23rd day of September, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

23