Sawyer v. Colvin

Filing 18

Order that the decision of the Commissioner denying plaintiff's claim for a period of disability and disability insurance benefits be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/25/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEBRA L. SAWYER,

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

CIVIL ACTION NO. 14-00500-B

ORDER
Plaintiff Debra L. Sawyer (hereinafter “Plaintiff”) brings
this action seeking judicial review of a final decision of the
Commissioner of Social Security denying her claim for a period
of disability and disability insurance benefits under Title II
of

the

Social

December
consented

15,
to

Security

Act,

42

U.S.C.

2015,

the

parties

have

the

undersigned

proceedings in this case.

§§

waived

401, et
oral

conduct

(Docs. 14, 15).

seq.

On

argument

and

any

and

all

Thus, the action was

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

I.

Procedural History
Plaintiff filed an application for a period of disability

and disability insurance benefits on June 20, 2008, alleging
that she has been disabled since March 2, 2008, due to “back
problems” that cause her to be “in pain all the time.”
249, 253).

(Tr.

Following a hearing, Administrative Law Judge Ronald

Reeves rendered a “partially favorable” decision, finding that
Plaintiff was disabled as of February 24, 2010, instead of her
alleged disability onset date of

March 2, 2008.

(Id. at 119).

Plaintiff sought review before the Appeals Council of her onset
date, and on appeal, the Appeals Council, on June 26, 2012,
reversed the ALJ’s “partially favorable” decision, and remanded
the case.

(Id. at 121-123).

The Appeals Council directed that

another hearing be conducted in order to reconsider the entire
period of adjudication and to obtain additional evidence related
to Plaintiffs’ back impairment, including: updated records from
her treating physicians, a consultative orthopedic examination,
and a Medical Source Statement about what Plaintiff can still do
despite her impairments.

(Id. at 43).

In addition, the Appeals

Council instructed the ALJ to enlist the aid of a medical expert
at the hearing and to reconsider whether Plaintiff can return to
any of her past relevant work.
On

March

13,

2013,

a

(Id. at 128-29).

second

administrative

conducted by ALJ Judge Roger A. Nelson.
2

hearing

(Id. at 35).

was

Plaintiff

attended the hearing with her counsel and provided testimony
related to her claims.

(Id. at 43).

A vocational expert (“VE”)

and a medical expert also appeared at the hearing and provided
testimony.

(Id. at 59, 77).

On May 2, 2013, ALJ Nelson found

that Plaintiff is not disabled.

(Id. at 29).

The Appeals

Council denied Plaintiff’s request for review on September 22,
2014.

(Id. at 1).

Thus, the ALJ’s decision dated May 2, 2013,

became the final decision of the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

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).
II.

Issue on Appeal
Whether the ALJ erred in rejecting the opinion of
Plaintiff’s treating nurse practitioner, Kathy Hintz, PA-C?

III. Factual Background
Plaintiff was born on October 5, 1959, and was fifty-three
years of age at the time of her administrative hearing on March
13, 2013.

(Tr. 35, 43).

Plaintiff testified that she completed

the eleventh grade in high school and obtained her GED.
44).

(Id. at

In addition, she attended a program to become a nursing

assistant, but she did not complete her degree.
Plaintiff’s onset date is March 2, 2008.
3

(Id.).
(Id. at 249).

At

her hearing, Plaintiff testified that she

has back pain and

fibromyalgia

and

pain

that

constantly fatigued.

hurts

constantly

(Id. at 50, 57).

that

she

Plaintiff has received

steroid injections, which have helped decrease her pain.
at 52, 339).
and

is

(Id.

In addition, she has taken Cymbalta, Hydrocodone,

Flexeril.

(Id.

at

52-53).

Her

“biggest

problem”

is

fibromyalgia, for which she takes Cymbalta, which “sometimes”
gives her relief; she has “good days and bad days with it.”
(Id. at 54).
Plaintiff has past work as a rental agent for condominiums
on

Dauphin

resources

Island

at

a

and

theme

as

an

park

assistant

in

director

Florida.

(Id.

at

of

human

51,

305).

Plaintiff also worked part-time, after her alleged onset date,
as a waitress, but the ALJ found that this work did not rise to
the level of substantial gainful activity.
Plaintiff
grandson,

and

lives
they

with
share

her
the

husband
cooking

including cleaning the bathrooms.

(Id. at 23, 45).
and
and

fifteen-year-old
household

(Id. at 49-50).

duties,

Plaintiff’s

activities of daily living also include driving five days a week
to take her husband to work and going to the store, although she
testified that she very rarely shops alone.

(Id. at 48-49).

Plaintiff also testified that she drove herself to the hearing.
(Id. at 48).

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).

1

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
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
1

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

(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

see

Social

sequential

also

20

Security

evaluation

§§

regulations
process

determining if a claimant has proven his disability. 2
2

C.F.R.

for

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
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
6

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since March 2,
2008,

her

alleged

onset

impairments

of

level

protrusion,

disc

addition,

the

date,

multi-level

ALJ

that

degenerative

and

found

and

she
disc

fibromyalgia.
that

has

the

severe

disease,

multi-

(Id.

Plaintiff

does

at
not

23).
have

In
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.
The

ALJ

concluded

(Id.).

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
light work; however, she has the following limitations: she can
stand for one hour at a time or walk for thirty minutes at one
time for a combination of standing/walking for five hours total
in an eight-hour day; she can sit for one hour at a time but can
generally

function

in

a

sitting

position

with

some

accommodation; she would need two to three minutes at a time
every hour to stretch at her workstation before changing from
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)).
7

sitting

to

standing;

she

can

never

climb

ladders,

ropes

or

scaffolds; she can occasionally climb ramps or stairs; she can
occasionally push/pull with the lower extremities; she can never
have exposure to vibrations such as power tools; and she can
frequently grip, grasp, manipulate, push, or pull with the hands
or arms.
crouch.

She can only occasionally bend, stoop, squat, kneel or
(Id. at 24).

The ALJ also determined that while Plaintiff’s medically
determinable impairments could reasonably be expected to produce
the alleged symptoms, her statements concerning the intensity,
persistence and limiting effects of the alleged symptoms were
not very credible.

(Id. at 25).

Given Plaintiff’s RFC, the ALJ found that Plaintiff is able
to perform her past relevant work as a rental agent (light and
skilled)

and

human

(Id. at 28-29).

resources

clerk

(sedentary

(Id. at 80-81).

the ALJ concluded that Plaintiff is not disabled.
Court

skilled).

At the hearing, the VE testified that Plaintiff

could perform her past relevant work.

The

and

now

considers

the

foregoing

in

Thus,

(Id. at 29).
light

of

the

rejecting

the

record in this case and the issue on appeal.
1.

Issue
Whether the ALJ erred in rejecting the
opinion of Plaintiff’s treating nurse
practitioner, Kathy Hintz, PA-C?

Plaintiff

argues

that

the
8

ALJ

erred

in

February 24, 2010, opinion of her treating nurse practitioner,
Kathy Hintz, PA-C, that Plaintiff is not able to work due to
chronic back and neck pain.
maintains

that,

while

(Doc. 11 at 2; Tr. 385).

Ms.

Hintz

is

not

Plaintiff

technically

an

“acceptable medical source,” SSR 06-03p allows the Commissioner
to

use

evidence

from

“other

sources,”

such

as

nurse

practitioners, to show the severity of a claimant’s impairments
and how they affect the claimant’s ability to function.
11 at 2).
weight

to

(Doc.

Thus, Plaintiff argues, the ALJ erred in assigning no
Ms.

Hintz’s

opinion.

(Id.).

The

Commissioner

counters that the ALJ did not err because he considered Ms.
Hintz’s opinion and then rejected it because the opinion

is

inconsistent with the substantial medical evidence in this case.
The Court agrees that Plaintiff’s claim is without merit.
The regulations are clear that a nurse practitioner is not
an “acceptable medical source” for purposes of establishing an
impairment.

See Coralic v. Commissioner of Soc. Sec., 2014 U.S.

Dist. LEXIS 159272, *23 (M.D. Fla. Oct. 28, 2014) (citing 20
C.F.R. §§ 404.1513(a), 416.913(a), adopted by 2014 U.S. Dist.
LEXIS 159141, 2014 WL 6065757, *9-10 (M.D. Fla. Nov. 12, 2014).
“However, a nurse practitioner is an ‘other’ medical source used
‘to show the severity of impairments and how the impairments
affect

ability

404.1513(d)(1)).

to

work.’”

“Opinions

Id.
from
9

(quoting
nurse

20

C.F.R.

practitioners

§
are

‘important

and

should

be

evaluated

on

key

issues

such

as

impairment severity and functional effects.’” Id. (citing SSR
06–03p).
SSR 06–03p provides, in part:
In addition to evidence from “acceptable medical
sources,” we may use evidence from “other
sources,” as defined in 20 CFR 404.1513(d) and
416.913(d),
to
show
the
severity
of
the
individual’s impairment(s) and how it affects the
individual’s ability to function.
These sources
include, but are not limited to:
. . . nurse practitioners, physician assistants,
licensed clinical social workers, naturopaths,
chiropractors, audiologists, and therapists; . .
. .
Information from these “other sources” cannot
establish
the
existence
of
a
medically
determinable impairment.
Instead, there must be
evidence from an “acceptable medical source” for
this purpose.
However, information from such
“other sources” may be based on special knowledge
of the individual and may provide insight into
the severity of the impairment(s) and how it
affects the individual’s ability to function. . .
.
With the growth of managed health care in recent
years and the emphasis on containing medical
costs, medical sources who are not “acceptable
medical sources,” such as nurse practitioners,
physician
assistants,
and
licensed
clinical
social workers, have increasingly assumed a
greater
percentage
of
the
treatment
and
evaluation functions previously handled primarily
by physicians and psychologists.
Opinions from
these medical sources . . . are important and
should be evaluated on key issues such as
impairment severity and functional effects, along
with the other relevant evidence in the file. .
. .
10

Although 20 CFR 404. 1527 and 416.927 do not
address explicitly how to evaluate evidence
(including opinions) from “other sources,” they
do require consideration of such evidence when
evaluating
an
“acceptable
medical
source’s”
opinion. . . .
Since there is a requirement to consider all
relevant evidence in an individual’s case record,
the case record should reflect the consideration
of opinions from medical sources who are not
“acceptable medical sources” and from “nonmedical sources” who have seen the claimant in
their professional capacity. Although there is a
distinction between what an adjudicator must
consider and what the adjudicator must explain in
the disability determination or decision, the
adjudicator generally should explain the weight
given to opinions from these “other sources,” or
otherwise ensure that the discussion of the
evidence in the determination or decision allows
a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may
have an effect on the outcome of the case.
SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006).
In this case, the record shows that the ALJ evaluated Ms.
Hintz’s opinion that Plaintiff is unable to work because of her
chronic

back

and

neck

pain

and

specifically

found

that

the

opinion was inconsistent with the medical evidence in the case,
as

well

as

with

the

administrative hearing.

opinion

of

(Tr. 27).

the

medical

expert

at

the

Having reviewed the evidence

in this case at length, the Court agrees.
The record shows that Ms. Hintz treated Plaintiff at the
Mostellar Medical Clinic from January 2010 to April 2012.
at 385-427).

(Id.

Ms. Hintz’s office notes dated February 18, 2010,
11

reflect

that

Plaintiff

was

seeking

a

letter

of

disability

because she “does not feel she is able to work at this time,”
and that “we will dictate a letter stating this.”

(Id. at 392).

Interestingly, the office notes reflect that on the same date,
Ms. Hintz observed that Plaintiff was in no apparent distress.
(Id.).

After

February

24,

Plaintiff

only
2010,

has

one

month

wrote

a

“multiple

of

treatment,

disability

health

Ms.

letter

issues,”

Hintz,

stating

including

on

that
disc

protrusions at T10-T11, L3-L4, and L4-L5 which cause chronic
pain in her neck and back and render her unable to stand or sit
for long periods of time and unable to work.

(Id. at 385).

As the ALJ found, this opinion is inconsistent with the
medical evidence of record, including the following: (1) An MRI
of Plaintiff’s thoracic spine on June 19, 2008, which showed
only minimal disc protrusion at T10-11 (the mid back) and no
evidence of impingement or stenosis (id. at 329); an MRI of the
cervical spine on July 23, 2008, which showed mild changes and
offered no “expla[nation] [of] the patient’s symptoms; (id. at
348); and an MRI of the lumbosacral spine taken on August 15,
2008,

which

showed

right

disc

protrusion

at

L3-L4

and

mild

diffuse disc protrusion at L4-L5 (id. at 346); (2) neurosurgeon
Dr. Antonio DiSclafani, M.D. (who treated Plaintiff from July to
August 2008 for “multiple aches and pains”), recorded normal
examination

findings

and

opined
12

that

Plaintiff’s

MRI

of

the

lumbar spine on August 21, 2008, revealed no findings that could
account for her complaints (id. at 345, 347); (3) consultative
orthopedic specialist Dr. Wagdi Faris, M.D. examined Plaintiff
on July 21, 2008, and concluded that there was “no indication
for

surgical

“completely

intervention,”
normal

gait,”

that
that

Plaintiff
the

ambulated

straight

leg

with

raise

a

was

“completely negative,” that her reflexes, sensation, strength,
and rotation in her hips were all “good” and “normal,” despite
claims of pain radiating to her hips and neck, that x-rays of
thoracic spine were unremarkable, and an MRI showed minimal disc
protrusion at T10-11, which could be degenerative in nature; Dr.
Faris gave Plaintiff an injection of Depo Medrol and stated that
“orthopedically there is nothing I would recommend or offer her”
(id. at 338); (4) consultative examiner Dr. Samer Choksi, M.D.
(id. at 339) examined Plaintiff on August 14, 2008, and found
that despite her complaints of constant lumbar pain, Plaintiff
had a normal gait, walked without assistance, was able to squat
and

heel-toe

moderate

walk,

narrowing

had
and

a

normal

spondylosis

Romberg,
on

had

x-rays

only
of

spine, and had “an essentially normal examination”.
also

noted

that

Plaintiff

had

received

an

the

mild

to

lumbar

Dr. Choksi

epidural

steroid

injection that had helped decrease her pain, and he concluded
that Plaintiff’s “subjective complaints are not consistent with
the objective medical findings” (id. at 339-42); (5) on October
13

15, 2008, treating osteopathic physician, Dr. Anuj Sharma, D.O.,
noted

Plaintiff’s

diagnoses

of

lumbar

and

thoracic

disc

protrusions, degenerative disc disease of the cervical spine,
and

fibromyalgia

independently

and

but
was

found

that

advancing

in

Plaintiff

her

functioned

activities

of

daily

living (id. at 362-63); (6) neurologist Dr. Edward Schnitzer,
M.D. (who treated Plaintiff from August 2012 to November 2012,
for

neck

and

low

back

pain),

noted

upon

examination

that

Plaintiff had a slowed gait with a cane, but normal sensory
findings,

normal

posture,

normal

strength,

normal

reflexes,

normal toe and heel walking, normal straight leg raise, and no
acute distress, although some reduced range of motion.
Schnitzer

recommended

injections

as

needed,

home

Dr.

exercise,

treatment with heat and ice, and continuation of NSAIDS and
steroids
William

(id. at 456-61);
Crotwell,

M.D.

(7) consultative orthopedic examiner
examined

Plaintiff

and

completed

Physical Capacities Evaluation on September 20, 2012.

a

He opined

that Plaintiff could sit/stand/walk for two hours at a time for
eight hours a day, could lift twenty-five pounds continuously,
could carry twenty pounds continuously, and could bend, squat,
crawl, and climb frequently; Dr. Crotwell noted that Plaintiff
had

never

had

epidural

blocks

or

surgery

but

had

only

been

treated with medications, that although she rated her back pain,
on the day of her examination, as “7/10”, she could “get up” and
14

“move about” “without any difficulty at all,” that her physical
examination was essentially normal, that she was making a very
poor attempt during the range of motion exam, and that all of
her past MRI’s were either normal or showed very minimal/mild
changes; Dr. Crotwell noted activities of daily living including
cooking, cleaning, unrestricted driving, and walking one to two
blocks, although she reported ambulating with a cane sometimes;
Dr. Crotwell concluded that there was “no objective evidence of
any reason for [her] pain,” that her pain was unsubstantiated by
x-rays or tests, that she could definitely carry out light or
sedentary work, that she could definitely work an eight-hour day
without any major difficulty, and that she could probably do
medium work; Dr. Crotwell concluded that he found “very little
orthopedic problem with this patient” (id. at 434-37); and (8)
medical expert/orthopedic specialist, Dr. Arthur Lorber, M.D.,
testified at the administrative hearing on March 13, 2013, that
he had reviewed all of the medical evidence and that it was his
opinion

that

Plaintiff

could

perform

medium

work

and

could

stand/walk/sit for an hour at a time for a total of six hours
each

per

day

(stand/walk

combined)

(id.

at

59,

66-67).

Dr.

Lorber noted that Plaintiff had been diagnosed with lumbar and
thoracic

disc

protrusion,

lumbar

radiculopathy,

cervical

degenerative disc disease, and fibromyalgia, but indicated that
verification of Plaintiff’s alleged fibromyalgia would require
15

excluding other impairments (id. at 63, 66).
noted

that

Plaintiff’s

x-rays

and

MRI’s

Dr. Lorber also

showed

only

minimal

changes and could not account for her complaints of pain (id. at
62) and that she was not a candidate for surgery.

Additionally,

Dr. Lorber discussed the findings of orthopedic surgeon, Dr.
Clinton Howard, who examined Plaintiff on April 30, 2012, and
recommended

that

inflammatories,

Plaintiff
and

return

do

exercises

at

needed,

but

as

home,

use

anti-

Plaintiff

never

returned to him (id. at 64, 432). Dr. Lorber also discussed the
findings of consultative orthopedist Dr. Crotwell that Plaintiff
could perform medium to light work with unrestricted sitting,
walking, and standing.
Based

on

the

(Id. at 61-66).

foregoing,

the

Court

finds

that

the

ALJ

properly evaluated Ms. Hintz’s opinion as an “other source” and
properly assigned no weight to her opinion that Plaintiff is
unable to work, given the inconsistency of the opinion with the
substantial evidence in this case.

See Coralic, 2014 U.S. Dist.

LEXIS 159272 at *24, 2014 WL 6065757 at *9-10 (finding no error
in ALJ’s evaluation of nurse practitioner’s opinion, together
with the rest of the medical evidence, and assignment of little
weight where the opinion was “not consistent with the medical
evidence . . .

or with Plaintiff’s activities.”).

In addition,

the Court finds that the substantial evidence supports the ALJ’s
determination that Plaintiff has the RFC for a range of light
16

work, with the stated restrictions.

Accordingly, Plaintiff’s

claim is without merit.
V.

Conclusion

For

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

and

disability

insurance

benefits

be

AFFIRMED.
DONE this 25th day of March, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

17