Barnes v. Colvin

Filing 18

Order re: 1 Complaint filed by Morris L. Barnes stating the decision of theCommissioner of Social Security denying Plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/27/17. Copies to counsel (mpp)

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THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION MORRIS L. BARNES, * * * * * * * * * * * Plaintiff, vs. NANCY BERRYHILL,1 Acting Commissioner of Social Security, Defendant. CIVIL ACTION NO. 16-00096-B ORDER Plaintiff judicial review Morris Barnes of final a (hereinafter decision of “Plaintiff”), the seeks 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. consented to have the proceedings in this case. On May 25, 2017, the parties undersigned (Doc. 15). conduct 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. 1 Upon careful consideration Nancy Berryhill became the Acting Commissioner of Social Security on January 23, 2017. Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Nancy Berryhill should be substituted for Carolyn W. Colvin as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 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 his applications for disability, disability insurance benefits, and supplemental security income on March 23, 2010, alleging disability beginning on April 16, 2009, based on “left knee problems.” (Tr. 129-130, 377). Plaintiff’s application was denied and upon timely request, he was granted an administrative hearing on March 16, 2012, before Administrative Law Judge Linda Helm (hereinafter “ALJ”). at 89). (Id. Plaintiff attended the hearing with his counsel and provided testimony related to his claims. vocational expert (“VE”) provided testimony. also appeared (Id. at 121-127). (Id. at 91-121). at the hearing A and On June 18, 2012, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. (Id. at 42-53). In an opinion dated August 28, 2013, the Appeals Council remanded this matter and instructed the ALJ to obtain additional evidence regarding Plaintiff’s left knee impairment, source such statement, complaints, and a consultative further give orthopedic evaluate further examination Plaintiff’s consideration to and subjective Plaintiff’s maximum residual functional capacity during the entire period at 2 issue.2 (Id. at 158-160). Following remand, a second hearing was held on March 13, 2014. Plaintiff attended the hearing provided additional testimony. with his counsel A medical expert and vocational expert also attended the hearing and offered testimony. 3 at 58-65, 82-85). June 10, 2014. 1). (Id. Therefore, (Id. The ALJ issued an unfavorable decision on at 21-36, 42-88). The Appeals Council denied Plaintiff’s request for review on February 5, 2016. at and the ALJ’s decision dated June 10, (Id. 2014, became the final decision of the Commissioner. Having exhausted his administrative timely filed the present civil action. remedies, (Doc. 1). Plaintiff Oral argument was conducted on June 1, 2017, before the undersigned Magistrate Judge (Doc. 17), and the parties agree that this case is now 2 The Appeals Council also found that the ALJ’s opinion was internally inconsistent because, while the ALJ found that Plaintiff’s statements regarding his activities and abilities were generally credible, she found that he was capable of standing and walking a total of two hours — 15 to 30 minutes at one time, but Plaintiff testified that he could only walk five minutes. Additionally, the Appeals Council found that, while the ALJ concluded that Dr. Otis Harrison’s opinion that Plaintiff is limited in his standing and walking and cannot engage in workrelated activities on a regular basis was not consistent with his own treatment notes, Dr. Harrison’s opinion was consistent with Dr. Pearsall and Dr. Lane’s treatment notes indicating that Plaintiff was unable to work due to difficulty walking. (Id. at 158-160). The Appeals Council sought clarification with respect to this issue. 3 The medical expert, Dr. telephone. (Id. at 49). Arthur 3 Lorber, M.D., appeared by 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 assigning little weight to the opinions of Plaintiff’s treating physician, Dr. Otis Harrison, M.D.? III. Background A. Plaintiff’s testimony Plaintiff was born on April 11, 1972, and was thirty-nine years of age at the time of his administrative hearing on March 16, 2012. (Tr. 89, 96, 377). Plaintiff alleges that he became disabled on April 16, 2009, based on “left knee problems.” (Id. at 129-130, 377). Plaintiff completed the eleventh grade and pursued his GED; however, he left the program after getting a job. 99). Plaintiff’s past work includes (Id. at 98- shipyard welder, construction laborer, ripsaw operator, and production assembler. (Id. at 82, 101-105, 122). In 2006, following partial medial meniscectomy surgeries on his left knee, he returned to work as a heavy laborer. boating accident (Id. at 58, 106). in which he In April 2009, following a reinjured his left knee, Plaintiff’s employer placed him on light duty and sent him for an MRI. (Id. at 100, 105, 451). According to Plaintiff, he cannot work now due to pain, swelling, and arthritis in his left knee, which causes him to 4 barely be able to walk. (Id. at 106). Plaintiff testified that he takes Lortab and uses creams and a stretch machine for his knee pain. (Id. at 106-107). Plaintiff received worker’s compensation payments for his knee and a lump sum settlement of $125,000. B. (Id. at 105). ALJ’s Decision In her decision issued on June 10, 2014, the ALJ found that Plaintiff has the severe impairments of degenerative disease of the left knee, diabetes mellitus, and obesity. 4 23). joint (Tr. The ALJ further found that, while Plaintiff’s medically determinable impairments could reasonably be expected to cause the alleged symptoms, the Plaintiff’s statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely credible. (Id. at 25-26). The ALJ determined that Plaintiff has the residual functional capacity to perform a reduced range restrictions: of light Plaintiff work, can subject lift/carry 4 to no the more following than twenty The ALJ found that Plaintiff’s anxiety, hypertension, and hyperlipidemia/hypercholesterolemia were not severe because the record fails to suggest that the Plaintiff has received ongoing treatment for the conditions, has experienced ongoing difficulties with the specific symptoms associated with the conditions, has experienced the persistent manifestation of the objective signs of the conditions, or that these conditions have imposed more than minimal functional limitations on the Plaintiff. (Tr. 25). The ALJ further determined that Plaintiff has no documented medically determinable impairment with respect to his complaints of back pain. (Id.). 5 pounds occasionally and ten pounds frequently; he can stand/walk no more than thirty minutes at a time and no more than two hours in an eight-hour workday; he needs to be able to use a cane for prolonged breaks; kneel, walking; he can crawl, sitting never or climb work is unrestricted ladders, around with scaffolding, unprotected the usual or ropes, heights or in temperature extremes; and he can only occasionally climb stairs and ramps, bend, stoop, crouch, and operate moving equipment. (Id. at 25). the ALJ relevant Utilizing the testimony of a vocational expert, concluded work; that however, Plaintiff he can cannot perform perform the his of jobs past bench assembler, surveillance system monitor, and call-out operator. (Id. at 36). C. The Medical Evidence medical records reflect that Plaintiff reported injuring his left knee in a boating accident in April 2009 and that he was treated by the Industrial Medical Clinic of Mobile. (Id. at 450-455). He was initially diagnosed with lumbar region strain and left knee strain. (Id.). Plaintiff was placed on restricted duty, which included no climbing, no squatting on the left knee, and no lifting over 20 pounds. (Id.). Plaintiff’s tear of left lateral knee revealed meniscus, previous medial chrondromalacic An MRI of meniscectomy, change of the patella, mild change of degenerative joint disease, and small 6 structure in the suprapatellar bursa. (Id. at 454). Plaintiff was seen by Dr. Clayton Lane, M.D., on April 28, 2009, and reported left knee pain. (Id. at 455). On exam, Dr. Lane observed that Plaintiff had moderate tenderness over the lateral joint line, negative Lachman, negative drawer, negative patellar grind, and positive McMurray’s laterally. Lane diagnosed Plaintiff with left knee pain (Id.). and Dr. left knee anterior horn lateral meniscus tear and prescribed Mobic and physical therapy three times a week. (Id.). During Plaintiff’s May 12, 2009 visit, he reported that physical therapy made his pain worse. (Id. at 457). Dr. Lane prescribed Lortab and noted that Plaintiff would be scheduled for an arthroscopic partial lateral meniscectomy with chondroplasty of the patellofemoral joint. partial (Id.). medial On May 20, 2009, Dr. Lane performed arthroscopic and lateral meniscectomies with microfracture patella to address the meniscus tear and assess the chondral damage. (Id. at 458). Plaintiff was placed in a hinged knee brace, and his range of motion was 0 to 30. He was set up with a home CPM for range of motion and was instructed to remain completely non-weight bearing. (Id. at 458-59). Dr. Lane’s treatment records dated May 28, 2009 reflect that Plaintiff reported 8/10 pain and was placed in a hinged knee brace 0 to 20 degrees range of motion. Additionally, Dr. Lane prescribed physical therapy three times a week for six 7 weeks and noted, “I am keeping him out of work.” (Id. at 461). By July 2009, diagnostic imaging of Plaintiff’s left knee showed no evidence of fracture or other pathology, and Dr. Lane’s treatment notes dated July 7, 2009, reflect that Plaintiff had an “excellent range of motion,” although he reported “catching” under the kneecap with a certain motion. (Id. at 463). During Plaintiff’s July 28, 2009 visit, he had 0 to 140 degrees of knee flexion but experienced pain under the patella with that range of motion. significant (Id. at 464). locking or He also had mild crepitus but no mechanical black to showed no evidence of loose body or fracture. prescribed Lortab 7.5 and four additional motion. (Id.). weeks of X-rays Dr. Lane physical therapy, noting that he was going to keep Plaintiff out of work for three weeks and have him pre-approved for a possible Synvisc injection. Dr. Lane discussed getting Plaintiff’s pain to a manageable level and getting him back to a reasonable level of activity. (Id.) Dr. Lane’s treatment notes for August 20, 2009, reflect that on physical exam, Plaintiff had crepitus on range of motion in the patellofemoral joint and that he still had tenderness over the medial and lateral side of the patellofemoral joint and pain with resisted knee extension. His x-rays were unchanged. Lane changed Plaintiff’s medication to Mobic and released him to begin “light duty with no prolonged standing, no lifting, and no 8 climbing.” (Id. at 465). During Plaintiff’s August 31, 2009 visit, he reported that his knee gave out while in the restroom at work, and as result, he twisted his left knee and fell. (Id. at 466). a He also reported 10/10 pain and had positive extension of the knee upon examination. Plaintiff’s left (Id.). knee for Dr. Lane September scheduled 28, 2009, an MRI and the of MRI revealed an 8.7 mm. loose body in the lateral gutter and a 13 x 12 mm. patellar chondral defect. (Id. at 469). On exam, Plaintiff had “exquisite tenderness over the lateral side of the patellofemoral joint,” was “tender over the superomedial patella,” had “crepitus on range of motion,” and resisted “full flexion of the knee.” (Id. at 469). Because Plaintiff did not have any fill of the chondral defect with scar tissue and had a loose body in the knee, Dr. Lane recommended revision surgery. (Id.) The final treatment record from Dr. Lane, dated October 9, 2009, reflects that Plaintiff’s physical exam was unchanged and that based on Plaintiff’s report that he could not walk the distance from his car to his employment, Dr. Lane would keep him out of work. that Plaintiff (Id. at 470). was awaiting surgery. given The treatment notes also reflect Lortab and Ativan and that he was (Id.). From November 2009 to November 2010, Plaintiff was treated 9 by Dr. Albert Pearsall, M.D. 5 Notes from Plaintiff’s November 23, 2009, visit reflect that Plaintiff had returned to work but continued to have swelling pain and difficulty walking, was using a crutch, and reported that he was not on any medications. (Id. at 491). On exam, Plaintiff had 0-120 degree extension with pain around the patella. He had medial tenderness over the plateau but not over the meniscus. He had no lateral joint line tenderness, negative (Id.). negative Lachman and posterior drawer. Dr. Pearsall recommended a valgus unloading brace prior to any surgical intervention to see if it would help alleviate the medial joint line symptoms. (Id. at 492). Dr. Pearsall restricted Plaintiff from work and prescribed Lortab and Soma. (Id.). His treatment notes reflect that Plaintiff received the unloading brace on December 19, 2019, and was instructed to wear the brace for two weeks. 10, with no refills. Dr. Pearsall prescribed forty Lortab (Id. at 489). During Plaintiff’s January 4, 2010 visit, he reported that the valgus unloading brace had helped him minimally. On examination, Dr. Pearsall noted that Plaintiff appeared to have lateral joint line tenderness and a positive lateral McMurray. (Id. at 488). Dr. Pearsall advised Plaintiff that he would attempt to do an autologous mosaicplasty through a miniarthrotomy for his patella, explaining the risks 5 Dr. Pearsall noted that he had previously treated Plaintiff prior to his November 2009 visit. (Tr. 491). 10 and benefits of the procedure. (Id.) On January 27, 2010, Plaintiff underwent a left knee video arthroscopy, synovectomy and five plugs. (Id. at 479). open patellar mosaicplasty with Eight days later, Plaintiff had an office visit with Carmen May, CRNP, and could flex his knee approximately 70 degrees, had moderate knee, and placed his pain at 8/10. swelling of (Id. at 487). the left He was prescribed Ted Hose for swelling in his left lower extremity, as well as Lortab, Soma, and Mobic, and instructed to continue physical therapy for left knee rehabilitation and to use the CPM machine at home. (Id.). On March 4, 2010, Dr. Pearsall diagnosed Plaintiff with arthrofibrosis of the left knee and patellar inferior scarring, as well as scarring around the joint. (Id. at 486). Dr. Pearsall opined that Plaintiff needed an arthroscopy for scar resection, debridement and elevation of the patellar tendon, an assessment under of the anesthesia. mosaic Dr. plugs, Pearsall and aggressive recommended manipulation hyaluronic acid injections for three weeks to assess healing of the plugs and noted that Plaintiff could try physical therapy to see if there was improvement. (Id.). At Plaintiff’s March 15, 2010 visit, he reported crepitus and continued patellofemoral pain, and his range of motion was 0 to about 75 degrees. (Id. at 483). Dr. Pearsall noted that Plaintiff had some incongruous plugs and 11 that some scar tissue had formed. He again Plaintiff would benefit from arthroscopy. (Id.). opined that Dr. Pearsall’s treatment notes dated April 5, 2010, reflect that Plaintiff was three months status post left patellar mosaicplasty, and while Plaintiff was still having some crepitus on the medial side of his knees and reported difficulty walking and the use of a cane, his flexion was up to 100 degrees. Dr. Pearsall prescribed Lortab and Soma, noting that Plaintiff was awaiting approval from Worker’s Compensation for the recommended procedure. (Id. at 482). Dr. reflect Pearsall’s that treatment Worker’s notes Compensation in June and July 2010 officials had secured a second opinion regarding the recommended procedure and that Dr. Patton, who rendered the second opinion, Pearsall’s assessment arthroscopy for that Plaintiff synovectomy, scar possible shaving of the plugs. had concurred with Dr. needed a knee debridement, tissue follow-up and (Id. at 476-479). It was noted that Plaintiff was walking with a significant limp and had some back pain. Plaintiff was given a cane and prescribed Lortab and Soma until he could be approved for surgery. (Id.). Dr. Pearsall’s last two treatment records dated September 17, 2010, and November 22, 2010, reflect that Plaintiff still had pain and Compensation discomfort, claim, and that that he 12 he had would settled his Worker’s have pay for to his surgery as he no longer had insurance because of the settlement. Dr. Pearsall suggested that Plaintiff find a pain management doctor and noted that Plaintiff had discussed disability with him and that he had directed Plaintiff to get the forms to him so that he could evaluate and complete them. (Id. at 474-475). During the November visit, Plaintiff was prescribed a two month supply of Lortab and Soma and advised to return as needed. (Id. at 474). The record does not contain any disability forms completed by Dr. Pearsall. The record reflects that, in 2011 and 2012, Plaintiff was regularly treated by Otis Harrison, M.D. and others at Franklin Primary Health Center for various ailments including complaints of left knee pain. 534-555). (Id. at 496-498, 503-507, 511-519, 523-528, During a February 2011 visit, Plaintiff reported knee pain and swelling, back pain, and muscle spams. On examination, Plaintiff had pain on range of motion in his left knee and back. (Id. at 500). X-rays taken on October 17, 2011, revealed no abnormality on Plaintiff’s lumbar spine and arthritic changes of the patellofemoral joint in Plaintiff’s left knee. or destructive bony lesion was seen. (Id. at 507). No fracture Treatment notes dated November 21, 2011, reflect that Plaintiff had a history of knee pain and a history of four surgeries. On examination, Plaintiff reported pain in his left knee on range of motion. (Id. at 503). He was diagnosed with degenerative 13 joint disease-left hyperlipidemia. knee, anxiety, (Id. at 504). high blood pressure and Plaintiff was prescribed Lortab and Mobic for his knee pain. (Id. at 506). Treatment notes from January 23, 2012, reflect that Plaintiff complained of flea bites. No abnormalities musculoskeletal system. were noted (Id. at 516). on an exam of his Plaintiff was diagnosed with left knee pain, flea bites, degenerative joint disease, anxiety, high blood pressure, medications were continued. and hyperlipidemia, (Id. at 517). and his Treatment records from Plaintiff’s April 6, 2012, office visit reflect that no abnormalities were musculoskeletal system. noted on an examination In both his On April 30, 2012, back pain was noted on examination of Plaintiff’s range of motion. 528). of instances, remained largely unchanged. his diagnoses and (Id. at 525treatment plan (Id.). In April 2012, Dr. Harrison completed a Clinical Assessment of Pain form, opining that Plaintiff’s pain was intractable and virtually incapacitating, that physical activity would increase his pain to such an extent that bed rest would be necessary, and that he would be totally restricted and unable to function at a productive level of work because of pain. (Id. at 518-519). Dr. Harrison also opined that Plaintiff could not engage in any form of gainful employment over a eight hour work day, in a forty-hour workweek, without missing more than two days of work 14 per month or experiencing frequent interruptions to his work routine due to symptoms. (Id.). In July 2012, Plaintiff was evaluated by Dr. Najma Kayani at the Franklin clinic. problems were listed erectile dysfunction, (Id. at 521). as Plaintiff’s chronic hypercholesterolemia, degeneration of lumbar hypertension, or lumbosacral intervertebrae, and pain in joint involving lower leg. (Id.). On examination, Plaintiff’s gait was normal, and he had normal mobility and curvature. (Id. at 523). The records also reflect that Plaintiff was treated by Dr. Harrison four times in 2013 and 2014, namely September 2013, November 2013, and January 2014. June 2013, (Id. at 547). The records reflect that Plaintiff sometimes reported difficulty walking and joint pain, and sometimes denied such. (Id. at 547- 556). Musculoskeletal examinations often revealed normal gait, normal station Harrison and prepared stability. a (Id.). Clinical In Assessment December 2013, of form Pain essentially mirrored the one he prepared in April 2012. Dr. that (Id. at 539). On November 11, 2013, Dr. William Crotwell, III, M.D., conducted an orthopedic consultative examination at the request of the Agency. (Id. at 536). On examination, Dr. Crotwell noted that Plaintiff ambulated with a cane, reported that he took Lortab, and that he was able to get up and down from the 15 table and move about without difficulty. Dr. Crotwell also observed that Plaintiff’s toe and heel walk were normal, that his straight leg raise sitting - right and left - was 90 with no pain, that his sensory examination was essentially normal, that his motor (Id.). function was 5/5, and that his reflexes were +2. He also observed Plaintiff’s painful range of motion of the left knee at -5 to 110 and crepitus underneath the patella. According knee to showed Dr. Crotwell, diagnostic patellofemoral imaging arthritis and of mild Plaintiff’s joint space arthritis with some mild narrowing of the medial joint space and more patellofemoral arthritis. Dr. Crotwell’s impression was “postop video of the left knee with some moderate arthritis of the knee and patellofemoral joint” and technique “postop for the open microfracture patella with technique residual and mosaic patellofemoral arthritis, moderate to severe.” (Id. at 537). Dr. Crotwell recommended left shaving scoping Plaintiff’s patella down to a smoother surface. knee and the He opined that Plaintiff could perform sedentary jobs, that he should avoid excessive walking, inclines, and stairs, and that he should perform no bending, stooping, crawling or excessive torqueing of the leg. (Id.). Dr. dated Crotwell November completed 11, 2013, a physical and 16 his capacities findings evaluation included that Plaintiff could sit for eight hours total during an eight hour work day, could stand for six hours total during an eight hour work day, could work for four hours during an eight hour work day, could sit for one hour at one time, could stand for one hour total at one time, could walk for one hour total at one time, could continuously lift up to ten pounds, could frequently lift eleven to twenty pounds, and could occasionally lift twenty-one to twenty–five pounds. (Id. at 538). The final medical evidence in the record is the testimony of Dr. Arthur Lorber, M.D., who offered testimony at Plaintiff’s second administrative hearing. (Id. at 49-65). Dr. Lorber testified that he had reviewed Plaintiff’s medical records, and during the Plaintiff. hearing, he elicited additional information from He opined that Plaintiff can stand/walk for two hours in a day for 30 minutes at a time and that he has no restrictions on his ability to sit. He also opined that Plaintiff cannot climb ladders, ropes, or scaffolds, that he can occasionally ascend or descend stairs or ramps, occasionally stoop or crouch, that he can that he can occasionally work around moving machinery, that he cannot kneel, crawl, or work around unprotected prolonged walking. heights, and (Id. at 63). that he may use a cane for Dr. Lorber opined that, based upon his experience with individuals having a similar degree of pathology, Plaintiff can productively 17 perform employment activities under the restrictions described. (Id. at 65). He also opined that he had considered the effect of Plaintiff’s obesity on his knee condition, that his knee condition can be expected to deteriorate with time, and functional capacity will likewise erode. that his residual (Id. at 62). He also opined that Plaintiff would probably not be able to continue to perform even sedentary work for more than a few years. (Id.). Dr. Lorber disagreed with Dr. Crotwell’s opinion regarding Plaintiff’s residual functional capacity because he did not believe that Plaintiff could walk for four hours a day nor stand for six hours a day, given his left knee impairment. Dr. Lorber also disagreed with Dr. Harrison’s opinion that Plaintiff’s pain is so significant activity. that (Id. at 63). it would interfere with all work According to Dr. Lorber, Plaintiff’s activity level and his usage of narcotic medication did not suggest a situation of extreme pain. (Id.). He also opined that practitioners such as Dr. Harrison, who are not specialists in orthopedic medicine, tend to develop relationships with their patients and become biased advocates for them. (Id. at 64). IV. Standard of Review 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 18 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. §§ 423(d)(1)(A); see also 20 provide a C.F.R. §§ 404.1505(a), 416.905(a). The Social Security regulations five-step sequential evaluation process for determining if a claimant has proven his disability. 20 C.F.R. §§ 404.1520, 416.920. 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, must he or she 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). evaluating whether the claimant has met this burden, In 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. 19 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 significant claimant’s numbers residual work history. 1985). gainful in employment the which national economy, capacity, age, exists functional given education, in the and Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 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. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). Jones v. 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)). 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). 6 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 6 findings of fact must be 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). 20 affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence is defined as “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). V. Discussion A. The ALJ did not err in assigning little weight to the opinions of Plaintiff’s treating physician, Dr. Otis Harrison, M.D. In the case sub judice, Plaintiff argues that the ALJ erred in assigning little weight to the opinions of his treating physician, Dr. Harrison, who opined that Plaintiff’s pain was intractable and virtually incapacitating, that physical activity would increase his pain to such an extent that bed rest would be necessary, and that Plaintiff’s pain would fully restrict him, making him unable to function at a productive level of work such that he could not engage in any form of gainful activity on a 21 repetitive, competitive, and productive basis over an eight-hour workday. (Tr. 539). The ALJ rejected these opinions, and found as follows: I assign little weight to Dr. Harrison’s clinical assessment of pain forms in that he is an internal medicine physician, but not a specialist in orthopedic medicine. Also, Dr. Harrison’s conclusions are not supported by physical examination findings contained in his own treatment records, which failed to also delineate specific functional limitations for the claimant. Dr. Harrison’s notations often illustrated the claimant’s normal gait; normal station and stability; normal muscle strength and tone; normal sensory exam; and symmetrical and equal bilateral deep tendon reflexes. Moreover, Dr. Harrison’s treatment notations did not describe pain existing at levels described in the clinical assessment of pain forms, nor did they indicate that the claimant would have difficulty sustaining employment or experience excessive absenteeism. While Dr. Harrison saw the claimant on a fairly regular basis at Franklin Primary Health Center, he did not evaluate him at that facility after early July 2012, and he evaluated the claimant on only four occasions between June 2013 and January 2014 at Harrison Primary Health Clinic. Additionally, while I acknowledge the claimant’s significant knee pathology and resulting symptomatology, [I] cannot additionally ignore the failure of the claimant to obtain further treatment with an orthopedic specialist after November 2010. The record suggests that the claimant obtained a substantial settlement for his Worker’s Compensation claim, but there is no indication from the record that he attempted to pursue the last recommended orthopedic surgical procedure in an attempt to mitigate his alleged symptomatology. In fact, the claimant’s last documented orthopedic treatment is commensurate with the approximate time frame of his Worker’s Compensation settlement. The claimant’s failure to continue to receive specific orthopedic treatment, or treatment with a pain management specialist, further supports a finding that Dr. Harrison’s clinical assessment of pain forms should be granted little weight. 22 (Id. at 29). The undersigned assigning little finds weight that to the the process, the ALJ had opinions Harrison’s pain assessment forms. determination ALJ good cause contained in for Dr. As part of the disability is tasked with weighing the opinions and findings of treating, examining, and non-examining physicians. In reaching a decision, the ALJ must specify the weight given to different medical opinions and the reasons for doing so. See Winschel v. Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). error. The failure to do so is reversible See Williams v. Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1 (M.D. Fla. 2009). When ALJ weighing the opinion of a treating physician, the must give the opinions “substantial weight,” unless good cause exists for not doing so. Costigan v. Commissioner, Soc. Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4 (11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985)). The opinion of “a one-time examining physician — or psychologist,” on the other hand, is physician. not entitled to the same deference as a treating Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50, 2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford, 23 363 F.3d at 1160). An ALJ is also “required to consider the opinions of non-examining state agency medical and psychological consultants because they ‘are highly qualified physicians and psychologists who are also experts in Social Security disability evaluation.’” (11th Milner v. Barnhart, Cir. 2008) 404.1527(f)(2)(i)). examining (unpublished) “The sources when examining sources.” 275 Fed. Appx. 947, 948 ALJ they may do (citing rely not on 20 C.F.R. opinions conflict with of § non- those of Id. (citing Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991)). Whether considering the opinions of treating, examining, or non-examining physicians, testimony any of good medical cause source exists when it to is discredit contrary to the or unsupported by the evidence of record. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). “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.” Hogan v. Astrue, 2012 U.S. Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012). The ALJ is “free to reject the opinion of any physician when the evidence supports a contrary conclusion.” 764 F.2d 834, 835 (11th Cir. 1985) (per Sryock v. Heckler, curiam) (citation omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx. 209, 212 (11th Cir. 2010) (The 24 ALJ may reject any medical opinion if the evidence supports a contrary finding.). In the present case, while the record demonstrates that Plaintiff has degenerative disease or arthritis in his left knee, that his treatment has included four surgeries, physical therapy, doctors and medication such as Lortab have concluded that he would and Mobic, benefit and from that another procedure to scope his left knee and shave/smooth the patella, neither Dr. Harrison’s treatment records nor the remaining evidence of record supports the debilitating pain and extreme restrictions detailed contained above, Dr. in Dr. Harrison’s Harrison’s treatment pain As reflect notes forms. that, despite Plaintiff’s reports of pain in his left knee (id. at 525-534, 547), his physical examinations also revealed repeated instances of normal gait, station, stability, strength, range of motion, as well as denials of difficulty walking or rising from a sitting position or balance problems. (Id. at 548-52). Additionally, Dr. Harrison’s treatment notes reflect that his treatment of Plaintiff consisted mostly of controlled dosages of Lortab and Mobic. (Id. at 506). Further, the treatment records reflect that while Plaintiff regularly saw Dr. Harrison in 2011 and 2012, he had three office visits in 2013, and one in 2014. The bottom treatment line records is that that there supports is his nothing opinion in Dr. that Harrison’s Plaintiff’s pain is intractable such that Plaintiff is totally restricted 25 and unable to function at a productive level of work. Dr. Harrison’s extreme limitations are also not supported by the other record evidence. performed an arthroscopic As previously noted, Dr. Lane partial medial and lateral meniscectomies with microfracture in May 2009 after Plaintiff re-injured his left knee in a boating incident in 2009. 458). (Id. at While Dr. Lane initially restricted Plaintiff from work in connection with the surgery, by August 20, 2009, Plaintiff had improved, and Dr. Lane released him to “light duty” with no prolonged standing, no lifting, and no climbing. (Id. at 465). In late August 2009, Plaintiff reported falling in the restroom at work and twisting his left knee. (Id. at 466). An MRI revealed an 8.7 mm loose body in the lateral gutter and a 13 x 12 mm patellar chondral defect. (Id. at 469). Dr. Lane recommended revision surgery and later took Plaintiff off work based on Plaintiff’s subjective report that he could not walk the distance from his car to his job. (Id. at 470). Plaintiff did not seek any further treatment from Dr. Lane, and there is nothing in Dr. Lane’s treatment records that suggests that Dr. Lane’s work restriction was meant to be permanent or that it was based on anything other than Plaintiff’s subjective report. Plaintiff was next treated by Dr. Pearsall who initially prescribed a brace and restricted Plaintiff from work in an effort to help alleviate Plaintiff’s medial joint line symptoms. 26 Dr. Pearsall later performed a left knee video arthroscopy, synovectomy, and open patellar mosaicplasty with five plugs in January 2010. hose, (Id. at 479). physical Plaintiff’s therapy, flexion in Dr. Pearsall also prescribed Ted Lortab, his left and leg Mobic. was By up April to 100 2010, degrees although he reported difficulty walking and the need for a cane. (Id. at 482). resection. Compensation Dr. Pearsall recommended an arthroscopy for scar While awaiting approval from Plaintiff’s Worker’s provider for the recommended surgery, Plaintiff settled his Worker’s Compensation claim for $125,000 and elected not to have the surgery because he would have to pay for it out of his settlement proceeds. At that point, Plaintiff discussed disability with Dr. Pearsall and was directed to provide the forms to Dr. Pearsall, who would evaluate and complete them. Interestingly, Dr. Pearsall’s treatment notes do not contain any opinions or findings that Plaintiff is not capable of gainful employment, and the record is devoid of any disability forms completed by Dr. Pearsall. Against this backdrop of evidence, the ALJ properly determined that the work restrictions offered by Dr. Lane and Dr. Pearsall were temporary and provided to Plaintiff while awaiting surgery or recovering from surgery and did not reflect permanent work-related restrictions by either physician. they do not support Dr. Harrison’s 27 opinions that Thus, Plaintiff experiences debilitating pain such that he cannot maintain a forty-hour work week. Further, Dr. Harrison’s pain forms are not supported by the consultative evaluation by Dr. Crotwell or the testimony of Dr. Lorber, the medical expert records and testified at who the reviewed second Plaintiff’s hearing. medical Unlike Dr. Harrison, both Drs. Crotwell and Lorber are orthopedists. As previously noted, Dr. Crotwell examined Plaintiff and found that Plaintiff had painful range of motion of the left knee at 110 degrees, and crepitus underneath the patella. Plaintiff moved ambulated with postoperative about a video without cane. of much He the He observed that difficulty diagnosed left knee although Plaintiff with some he with moderate arthritis of the knee and patellofemoral joint and postoperative open microfracture patella with technique residual and mosaic severe considered moderate to severe. technique patellofemoral for the arthritis, He opined that Plaintiff could still carry out an eight-hour work day performing sedentary jobs that did not involve excessive walking, inclines, stairs, bending, stooping, crawling, or excessive torqueing of the leg. These findings by Dr. Crotwell constitute substantial evidence supporting the ALJ’s decision that Plaintiff is not disabled. Dr. Lorber’s testimony also constitutes evidence in support of the ALJ’s decision. 28 substantial Indeed, the ALJ properly relied opinions of upon Dr. and assigned Lorber, who controlling reviewed weight Plaintiff’s to the medical records, including those of Dr. Lane, Dr. Pearsall, and Dr. Harrison. He determined that, while Plaintiff has a severe left knee impairment, his condition does not rise to the listing level and does not render Plaintiff unable to work. Taking into account Plaintiff’s severe left knee impairment, his obesity, and other ailments, Dr. Lorber found that Plaintiff can stand and walk, either singularly or in combination, for two hours a day for thirty minutes at a time. (Id. at 62). He also determined that Plaintiff has no sitting restrictions and is capable of lifting twenty pounds occasionally and ten pounds frequently. testimony (Id.). in The ALJ properly relied upon Dr. Lorber’s formulating Plaintiff’s residual functional capacity (“RFC”). In addition to finding that the ALJ had good cause to assign controlling weight to the opinions of Dr. Lorber and to discount the extreme restrictions opined by Dr. Harrison, the Court finds that Plaintiff has failed to show that any limitations caused by his impairments exceed the RFC and are not accommodated by the stated restrictions. Indeed, the record reflects that Plaintiff cares for his own needs, is able to move about without difficulty, has a driver’s license and drives, attends church, and reported to Dr. Crotwell that he can walk 29 two to three blocks. (Id. noteworthy that orthopedic specialist since scoping procedure recommended Plaintiff at has 114, not 536). sought 2010 and treatment elected despite Worker’s Compensation settlement. Further, to receiving it is from an forego a a sizable (Id. at 105, 474). Based on the totality of the record, the Court finds that the ALJ’s decision, opinions of including Plaintiff’s the treating weight assigned physician and to the the RFC determination, is supported by substantial evidence. VI. 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, disability insurance benefits, and supplemental security income be AFFIRMED. DONE this 27th day of September, 2017. /s/ SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE 30

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