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)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MORRIS L. BARNES,

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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