Champion v. Colvin
Filing
22
Order re: 1 Complaint filed by Sherry S. Champion stating 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. Signed by Magistrate Judge Sonja F. Bivins on 3/27/18. (mpp) Copies to counsel
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHERRY S. CHAMPION,
Plaintiff,
vs.
NANCY BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.
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CIVIL ACTION NO. 16-00504-B
ORDER
Plaintiff Sherry S. Champion (hereinafter “Plaintiff”) seeks
judicial review of a final decision of the Commissioner of Social
Security denying her claim for a period of disability, disability
insurance benefits, and supplemental security income under Titles
II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq.,
and 1381, et seq.
On October 5, 2017, the parties consented to
have the undersigned conduct any and all proceedings in this
case.
(Doc.
17).
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
1
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
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 History2
Plaintiff filed her application for benefits on August 19,
2013,
alleging
disability
beginning
July
12,
2013,
based
on
“restless leg syndrome, plate in right arm, rods in left arm,
[and] major depression.”
(Doc. 12-5 at 2, 6; Doc. 12-6 at 2, 6).
Plaintiff’s application was denied and upon timely request, she
was granted an administrative hearing before Administrative Law
Judge Renee Blackmon Hagler (hereinafter “ALJ”) on February 18,
2015.
(Doc. 12-2 at 34).
Plaintiff attended the hearing with
her counsel and provided testimony related to her claims.
A
vocational
expert
provided testimony.
issued
an
disabled.
(“VE”)
also
appeared
(Doc. 12-2 at 57).
unfavorable
(Id. at 16).
decision
finding
at
the
(Id.).
hearing
and
On May 21, 2015, the ALJ
that
Plaintiff
is
not
The Appeals Council denied Plaintiff’s
request for review on September 1, 2016.
(Id. at 2).
Therefore,
the ALJ’s decision dated May 21, 2015, became the final decision
of the Commissioner.
Having
exhausted
her
administrative
timely filed the present civil action.
2
remedies,
(Doc. 1).
Plaintiff
Oral argument
The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF.
2
was conducted on October 25, 2017 (Doc. 20), and 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.
Issues on Appeal
1.Whether substantial evidence supports the
ALJ’s assignment of little weight to the
opinions of Plaintiff’s treating physician?
2.Whether substantial evidence supports
Residual Functional Capacity (“RFC”)?
the
III. Factual Background
Plaintiff was born on September 12, 1967, and was fortyseven years of age at the time of her administrative hearing on
February 18, 2015.
(Doc. 12-2 at 38).
Plaintiff graduated from
high school and attended two years of college, after which she
obtained a certificate for completing computer training.
(Id. at
39).
Plaintiff last worked in July 2013 as a waitress at Ezell’s
Fish Camp and, prior to that, in 2012, she worked as a waitress
at Old Mexico.
(Doc. 12-2 at 40; Doc. 12-6 at 20).
From 2010 to
2011, Plaintiff worked at the Clarke County Jail as a cafeteria
worker.
(Doc. 12-2 at 40; Doc. 12-6 at 20).
From 2009 to 2010,
she worked as an Assistant Manager at Dollar General, during
which
time
shelves.
her
duties
included
unloading
trucks
(Doc. 12-2 at 40; Doc. 12-6 at 20).
and
stocking
Prior to that,
Plaintiff worked as the Night Manager for Old School Truck Stop,
3
during
which
time
her
duties
included
sweeping,
mopping,
and
cleaning the bathrooms, as well as supervising other employees.
(Doc. 12-2 at 41).
She also worked as a Department Manager for
Fred Stores and as a Customer Service Manager for Walmart.
(Doc.
12-2 at 41).
Plaintiff
testified
that
she
can
no
longer
work
due
to
problems with her back and legs which prevent her from working
positions involving heavy lifting and a lot of standing.
12-2 at 42-43).
also
prevents
medical
(Doc.
Plaintiff further testified that her depression
her
from
treatments,
working.
consisting
(Id.
at
43).
Plaintiff’s
primarily
of
injections
in
her
back and neck and medications, have provided her some relief.
(Doc. 12-2 at 44).
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.
1)
whether
the
The Court’s review is limited to determining
decision
of
the
Secretary
is
supported
by
substantial evidence and 2) whether the correct legal standards
were applied.3
1990).
evidence,
A
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
court
or
Commissioner.
may
not
substitute
decide
its
the
facts
judgment
anew,
for
reweigh
that
of
the
the
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.
3
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
4
1986).
The Commissioner’s findings of fact must be affirmed if
they are based upon substantial evidence.
Brown v. Sullivan, 921
F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence is
defined as “more than a scintilla, but less than a preponderance”
and consists of “such relevant evidence as a reasonable person
would
accept
determining
view
the
as
whether
record
favorable,
decision.
adequate
as
to
support
substantial
as
a
well
evidence
whole,
as
a
taking
unfavorable,
conclusion.”).
exists,
into
to
a
court
account
the
In
must
evidence
Commissioner’s
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.
Statutory and Regulatory Framework
An
individual
benefits
must
prove
404.1512, 416.912.
engage
in
any
who
applies
his
or
for
her
Social
Security
disability.
20
disability
C.F.R.
§§
Disability is defined as the “inability to
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).
423(d)(1)(A);
see
also
20
C.F.R.
§§
The Social Security regulations provide
a five-step sequential evaluation process for determining if a
5
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, he or she must
proceed
to
the
fourth
step
where
the
claimant
inability to perform their past relevant work.
810 F.2d 1001, 1005 (11th Cir. 1986).
must
prove
an
Jones v. Bowen,
At the fourth step, the
ALJ must make an assessment of the claimant’s RFC. See Phillips
v. Barnhart, 357 F. 3d 1232, 1238 (llth Cir. 2004).
The RFC is
an assessment, based on all relevant medical and other evidence,
of a claimant’s remaining ability to work despite his impairment.
See Lewis v. Callahan, 125 F. 3d 1436, 1440 (llth Cir. 1997).
If a claimant meets his or her burden at the fourth step, it
then becomes the Commissioner’s burden to prove at the fifth step
that
the
claimant
substantial
is
gainful
capable
of
employment
engaging
which
in
exists
another
in
kind
of
significant
numbers in the national economy, given the claimant’s residual
functional capacity, age, education, and work history.
6
Sryock v.
Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
can
demonstrate
that
there
are
such
jobs
If the Commissioner
the
claimant
can
perform, the claimant must prove inability to perform those jobs
in order to be found disabled.
1228 (11th Cir. 1999).
Jones v. Apfel, 190 F.3d 1224,
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)).
VI.
Discussion
Substantial evidence supports the Residual
Functional Capacity (“RFC”) for less than
the full range of light work with the
stated restrictions, as well as the ALJ’s
assignment of weight to the opinions of
Plaintiff’s treating physician.4
In her brief, Plaintiff argues that the ALJ’s RFC for less
than the full range of light work is not supported by substantial
evidence and that the ALJ erred in failing to assign controlling
weight to the opinions of her treating physician, Dr. Huey Kidd,
M.D.
(Doc. 13 at 2).
The Government counters that the RFC is
fully supported by the substantial evidence and that the
ALJ
assigned the proper weight to Dr. Kidd’s opinions, as they are
conclusory and inconsistent with his own treatment notes, as well
as the remaining objective record evidence.
(Doc. 14 at 4-7).
Having
Court
reviewed
the
record
at
length,
the
finds
that
Plaintiff’s claims are without merit.
4
Because Issues 1 and 2 are interrelated, the Court will discuss
them together.
7
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
404.1545.
See 20 C.F.R. §
Determinations of a claimant’s RFC are reserved for
the ALJ, and the assessment is to be based upon all the relevant
evidence of a claimant’s remaining ability to work despite his or
her impairments, and must be supported by substantial evidence.
See Beech v. Apfel, 100 F. Supp. 2d 1323, 1331 (S.D. Ala. 2000)
(citing 20 C.F.R. § 404.1546 and Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997)); Saunders v. Astrue, 2012 U.S. Dist.
LEXIS 39571, *10, 2012 WL 997222, *4 (M.D. Ala. March 23, 2012).
Once the ALJ has determined the
claimant’s RFC, the claimant
bears the burden of demonstrating that the ALJ’s decision is not
supported by substantial evidence.
F.2d 1273, 1274 (11th Cir. 1985).
See Flynn v. Heckler, 768
Plaintiff has failed to meet
her burden in this case.
As stated, Plaintiff argues that the ALJ erred in failing to
give
controlling
weight
to
the
opinions
of
her
treating
physician, Dr. Kidd.
As part of the disability determination
process,
tasked
the
ALJ
is
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).
The failure to do so is reversible error.
8
See
Williams v. Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL
413541, *1 (M.D. Fla. 2009).
When weighing the opinion of a treating physician, the ALJ
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
Sec.,
363
F.3d
1155,
1160
Crawford v. Commissioner of Soc.
(11th
Cir.
2004)
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).
and
Broughton
v.
The opinion of “a
one-time examining physician — or psychologist” is not entitled
to the same deference as a treating physician.
Petty v. Astrue,
2010 U.S. Dist. LEXIS 24516, *50, 2010 WL 989605, *14 (N.D. Fla.
Feb. 18, 2010) (citing Crawford, 363 F.3d at 1160).
is
“required
to
consider
the
opinions
of
Also, an ALJ
non-examining
state
agency medical and psychological consultants because they ‘are
highly
qualified
physicians
and
psychologists
who
experts in Social Security disability evaluation.’”
are
also
Milner v.
Barnhart, 275 Fed. Appx. 947, 948 (11th Cir. 2008) (unpublished)
(citing 20 C.F.R. § 404.1527(f)(2)(i)).
“The ALJ may rely on
opinions of non-examining sources when they do not conflict with
those of examining sources.”
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,
good
cause
9
exists
to
discredit
the
testimony
of
any
medical
source
when
unsupported by the evidence of record.
F.3d 1232, 1240 (11th Cir. 2004).
where
a
doctor’s
opinions
are
it
is
contrary
to
or
Phillips v. Barnhart, 357
“Good cause may also exist
merely
conclusory,
inconsistent
with the doctor’s medical records, or unsupported by objective
medical
evidence.”
Hogan
v.
Astrue,
2012
U.S.
Dist.
108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
LEXIS
The ALJ is
“free to reject the opinion of any physician when the evidence
supports a contrary conclusion.”
Sryock v. Heckler, 764 F.2d
834, 835 (11th Cir. 1985) (per curiam) (citation omitted); Adamo
v. Commissioner of Soc. Sec., 365 Fed. Appx. 209, 212 (11th Cir.
2010) (The ALJ may reject any medical opinion if the evidence
supports a contrary finding.).
In the instant case, the ALJ found that Plaintiff has the
severe impairments of degenerative disc disease, carpal tunnel
syndrome,
obesity,
restless
leg
syndrome,
stress disorder with anxiety and depression. 5
and
post-traumatic
(Doc. 12-2 at 19).
The ALJ also determined that Plaintiff has the RFC to perform
less
than
the
restrictions:
full
range
Plaintiff
of
can
light
lift
work
and/or
with
the
carry
following
20
pounds
occasionally and 10 pounds frequently; she can sit, stand, walk
5
Plaintiff’s arguments in this case are directed at the ALJ’s
findings related to her physical impairments.
Therefore, the
Court’s discussion focuses on those impairments.
10
for a total of 6 hours in an 8-hour day6; she can push and pull up
to her lifting and carrying limitations; she can occasionally
handle, finger, and feel on her left hand; she can occasionally
climb
ramps
and
stairs
but
must
avoid
climbing
ladders
and
scaffolds; she can frequently stoop, kneel, crouch, and crawl;
environmentally,
she
must
avoid
unprotected
heights;
she
is
limited to performing simple, routine, and repetitive tasks; and
she can have only occasional contact with the public. (Doc. 12-2
at 21).
Based upon the testimony of the vocational expert, the ALJ
concluded that Plaintiff is not able to perform her past relevant
work,
but
that
she
can
perform
other
work
such
as
food
preparation worker, inserting machine operator, and box printer
(all light and unskilled).
(Doc. 12-2 at 28, 59-60).
ALJ found that Plaintiff is not disabled.
evidence
at
length,
the
Court
is
Thus, the
Having reviewed the
satisfied
that
the
ALJ’s
findings related to Plaintiff’s RFC and the weight accorded to
6
At first blush, the ALJ’s use of the phrase, “can sit, stand,
walk for a total of 6 hours in an 8-hour day,” appeared
problematic. However, the Court has reviewed the ALJ’s decision
at length and the hypothetical question posed to the vocational
expert, in which the ALJ clearly asked the VE to assume that the
Plaintiff could sit for at least 6 hours in an 8-hour work day
and stand/walk in combination for at least 6 hours in an 8-hour
work day. (Doc. 12-2 at 59). Therefore, the Court is satisfied
that the phrase is not meant to convey that Plaintiff is only
able to sit, stand, and walk in combination for a total of 6
hours in an 8-hour work day.
11
the opinions of Plaintiff’s treating physician are supported by
substantial evidence.
First, with respect to Plaintiff’s treating physician, Dr.
Kidd,
the
record
shows,
as
the
ALJ
found,
that
Dr.
Kidd’s
opinions were inconsistent with his own treatment records.
Kidd’s treatment records, as a whole, are very terse.
Dr.
They begin
on December 11, 2013, at which time Dr. Kidd treated Plaintiff
for chronic lower back pain and anxiety.
He noted that Plaintiff
was ambulatory and was experiencing moderate anxiety.
at 252).
Xanax,
(Doc. 12-7
Dr. Kidd refilled Plaintiff’s prescriptions for Norco,
and
Zanaflex
and
recorded
few
examination
findings.
7
(Id.).
Plaintiff
returned
to
Dr.
Kidd
the
following
month,
on
January 27, 2014, after being involved in a car accident a few
days earlier.
She requested that her stitches be removed and
that her medications be refilled.
(Doc. 12-7 at 250).
Dr. Kidd
diagnosed arthritis, headaches, depression, anxiety, and chronic
pain.
(Id.).
Plaintiff’s physical examination findings on that
date reflected bruising and lacerations to her head and bruising
to her shoulders from the accident.
7
(Id. at 251).
Dr. Kidd
An x-ray of Plaintiff’s lumbar spine taken on August 15, 2013,
showed moderate disc space narrowing, endplate sclerosis and
spurring at the L2-3 level, and less severe degenerative change
at the L3-4 level, with no loss of height or gross malalignment
of the lumbar vertebral bodies.
The assessment was no acute
osseous abnormality and degenerative change. (Doc. 12-7 at 68).
12
noted, “shoulders showed no abnormalities,” and “able to move
upper arm/shoulder without difficultly.”
(Id.).
Plaintiff returned on February 10, 2014, seeking refills of
her medication.
“feeling
(Doc. 12-7 at 249).
better”
and
working
Dr. Kidd noted that she was
part-time.
(Id.).
Dr.
Kidd
recorded no relevant physical examination findings but assessed
fracture of facial bones, lumbar radiculopathy, and chronic pain.
(Doc. 12-7 at 249-50).
The following month, on March 13, 2014, Plaintiff reported
that she had been depressed since her car accident and that she
had pain radiating to her legs.
(Id. at 245).
Dr. Kidd assessed
lumbar radiculopathy, chronic pain, and bipolar disorder.
at 247).
(Id.
Dr. Kidd’s notes reflect that Plaintiff was ambulatory,
that she had a muscle spasm in her back, and that she exhibited
normal reflexes.
(Id. at 245-47).
to go back to work on that date.
On
April
18,
2014,
Dr. Kidd released Plaintiff
(Id. at 245-47).
Plaintiff
returned
to
Dr.
Kidd
with
complaints of moderate chronic lower back pain that worsened with
stooping and bending.
medication
included
no
was
Plaintiff reported, however, that her pain
effective.
swelling,
normal
stance, and no acute distress.
On May 15, 2014,
Dr.
Kidd’s
posture,
examination
normal
gait
findings
and
normal
(Doc. 12-7 at 243).
Plaintiff presented for refills of her
medication, and Dr. Kidd made essentially no physical examination
13
findings.
(Doc. 12-7 at 240-42).
The following day, on May 16,
2014, Dr. Kidd completed a Physical Capacities Evaluation form,
opining that Plaintiff can sit for only two hours in an eighthour work day, can stand/walk for one hour, can lift/carry up to
ten pounds, and can never bend, squat, crawl, or climb.
12-7 at 231).
(Doc.
Dr. Kidd also completed a Clinical Assessment of
Pain form and therein opined that Plaintiff cannot engage in any
form of substantial gainful employment due to chronic lower back
pain.
(Doc. 12-7 at 232).
The record shows that Plaintiff
continued to see Dr. Kidd from June 2014 to January 2015 for
medication refills.
(Doc. 12-7 at 234-40, 312-17).
While there is no question that Plaintiff has the severe
impairment of degenerative disc disease which has resulted in
chronic
low
treatment
medication
which
back
records
and
are
contained
pain
as
reflect
largely
essentially
inconsistent
in
diagnosed
the
Physical
by
Kidd,
conservative
unremarkable
with
Dr.
the
Capacities
Dr.
Kidd’s
treatment
examination
debilitating
Evaluation
Assessment of Pain forms completed by Dr. Kidd.
with
findings,
limitations
and
Clinical
Indeed, Dr.
Kidd’s treatment notes reflect that Plaintiff’s pain medication
was effective and that Dr. Kidd released Plaintiff to return to
work a mere two months before completing the Physical Capacities
Evaluation and Clinical Assessment of Pain forms.
243, 245).
14
(Doc. 12-7 at
In addition to being inconsistent with his own records, Dr.
Kidd’s
opinions
are
inconsistent
with
Plaintiff’s
treatment
records from Dr. Rassan Tarabein, M.D., of the Eastern Shore
Neurology and Pain Center.
(Doc. 12-7 at 256).
Plaintiff was
treated by Dr. Tarabein for four months, from September 2014 to
January 2015.
Dr. Tarabein’s records, which reflect significant
improvement in Plaintiff’s pain during the four-month treatment
period, are inconsistent with the severe limitations listed in
the
Physical
Capacities
Evaluation
Pain forms completed by Dr. Kidd.
Specifically,
2014,
Plaintiff
the
record
reported
to
and
Assessment
of
(Doc. 12-7 at 253-97).
reflects
Dr.
Clinical
that
Tarabein
on
that
September
she
23,
developed
severe neck and back pain, as well as headaches, blurry vision,
and dizziness as a result of a car accident in January 2014.
(Doc. 12-7 at 294).
Plaintiff’s
lower
Dr. Tarabein noted severe tenderness in
back
area
and
shoulder
joints,
instability
while walking/standing, and severely restricted range of motion
in the shoulders.
(Id. at 295).
A musculoskeletal examination
during the same visit revealed normal muscle strength throughout
(5/5), normal muscle bulk and tone, with no fasciculation or
atrophy, and no spasms.
(Id. at 296-97).
Dr. Tarabein also
noted that x-rays indicated abnormal degenerative disc disease
and
possible
recommended
spinal
stenosis.
additional
(Id.
testing
15
to
at
298).
determine
Dr.
the
Tarabein
cause
of
Plaintiff’s headaches and dizziness.
He instructed Plaintiff to
return in one week and to exercise as tolerated.
Plaintiff
September
returned
and
to
October
Dr.
2014.
Tarabein
She
(Id. at 298).
several
reported
dizziness, blurred vision, and imbalance.
times
during
inattentiveness,
Dr. Tarabein performed
a series of tests to evaluate each of these symptoms, all of
which were normal.
(Id. at 285-86, 289-90).
Plaintiff also complained
276).
Dr.
Tarabein
On October 9, 2014,
of back and neck pain.
noted
radicular
pain
with
(Doc. 12-7 at
mild
deficit,
diffused tenderness in the lumbar facets, painful numbness in
both hands, and diffused spasms in the neck.
(Id. at 276).
He
performed tests to evaluate the possibility of carotid disease,
the
results
performed
of
nerve
which
were
conduction
normal.
(Id.
studies
of
at
the
277).
upper
He
and
also
lower
extremities to evaluate Plaintiff’s cervical and lumbar radicular
pain.
The results were mild to moderate C7-C8/L4-L5 radiculitis,
with some evidence of early stage radiculopathy, mild to moderate
CTS and peripheral neuropathy.
(Id. at 278).
Dr. Tarabein’s
conclusion was possible neuropathy, possible spinal stenosis, and
abnormal degenerative disc disease.
(Id.).
Plaintiff returned to Dr. Tarabein on October 29, 2014. She
reported lumbar pain, which she rated as 8/10 on the pain scale.
Plaintiff
denied
any
complications
from
her
medications
and
reported that she could perform her activities of daily living.
16
(Id.).
Plaintiff’s physical examination findings on that date
included normal head, neck, and cervical spine, full range of
motion in upper and lower extremities bilaterally, good posture,
normal
spinal
alignment,
decreased
range
of
motion
(50%
of
normal) in the lumbar spine with moderate tenderness and spasm,
decreased range of motion (75% of normal) in the cervical spine
with moderate tenderness and mild spasm, normal gait and station,
normal reflexes, normal coordination, normal motor bulk, tone,
and normal strength.
(Id. at 272-73).
Dr. Tarabein diagnosed
lumbar and cervical disc displacement, and continued Plaintiff on
her medications.
He also instructed her to return in one month.
(Id.).
Plaintiff returned to Dr. Tarabein on November 10, 2014,
complaining of “mild to moderate back and neck pain.”
Plaintiff
also reported that “today is better, meds are helping some[,]
[and] keeping pain within tolerance.”
(Doc. 12-7 at 265).
Dr.
Tarabein noted that Plaintiff described her back pain as “chronic
and improving,” and her neck pain, headache, and myalgias as
“improving
and
musculoskeletal
intermittent.”
examination
(Id.
findings
at
on
265).
that
Plaintiff’s
date
included
“patient complained of tenderness” and back and neck pain, muscle
strength “5/5 strength throughout,” normal muscle bulk and tone,
no atrophy, no spasms, and normal reflexes.
68).
17
(Id. at 265, 267-
Plaintiff returned to Dr. Tarabein on December 11, 2014,
with complaints of back pain. 8
noted
“evidence
of
(Doc. 12-7 at 259).
spondylosis”
and
Dr. Tarabein
administered
facet
injections, which he described as non-invasive, conservative pain
management.
He
noted
that
Plaintiff
reported
that
previous
injections had been of tremendous help and alleviated more than
70% of her spinal pain.
(Id. at 260).
Plaintiff was instructed
to return in one month and to exercise as tolerated.
(Id.).
Plaintiff presented to Dr. Tarabein/Eastern Shore Neurology
and Pain Center for a final follow up examination on January 12,
2015.
She reported chronic lumbar and cervical pain.
On that
date, she was examined by Stan White, FAAN (Fellow, American
Academy of Nursing). 9
(Doc. 12-7 at 256).
Despite her reported
pain, Plaintiff reported that she could complete her activities
of daily living.
(Id.).
A physical examination of Plaintiff on
that date reflected: normal neck (no swelling, normal appearance,
and non-tender), normal cervical spine, full range of motion in
upper
and
lower
extremities
bilaterally,
good
posture,
normal
spinal alignment, cervical range of motion reduced to 75% of
8
Imaging completed on December 2, 2014, of Plaintiff’s lumbar
spine showed normal spinal alignment, disc degradation with
annular bulge, discogenic endplate changes at several levels, and
facet joint arthropathy.
(Doc. 12-7 at 263).
Imaging of the
cervical spine was unremarkable. (Doc. 12-7 at 264).
9
Dr. Tarabein reviewed and agreed with Mr. Smith’s assessment.
(Doc. 12-7 at 256).
18
normal,
with
moderate
tenderness
and
spasm,
lumbar
range
of
motion reduced to 50% of normal with severe facet tenderness at
L2 to L5 and spasm, normal hips, normal gait, normal reflexes,
normal coordination, and normal motor bulk and tone.
255).
(Id. at
Plaintiff was given Toradol and Gabapentin and instructed
to continue home therapy and return in four weeks.
(Id.).
This
is the final treatment note from Dr. Tarabein.
Again, there is no question that Plaintiff has the severe
impairment of degenerative disc disease, as diagnosed by Dr. Kidd
and Dr. Tarabein, and that as a result of said impairment, she
experiences
Tarabein’s
regimen,
chronic
treatment
which
he
low
back
notes
and
neck
pain.
reflect
that
his
described
as
conservative
However,
pain
and
Dr.
management
non-invasive,
resulted in significant improvement of Plaintiff’s pain symptoms,
particularly after she received the facet injections.
at 260, 265).
Tarabein
(Doc. 12-7
In addition, while there is no question that Dr.
documented
decreased
range
of
motion
in
Plaintiff’s
lumbar and cervical spine, Dr. Tarabein’s treatment records also
reflect that Plaintiff was able to complete her activities of
daily living despite these limitations
and that she had full
range of motion in her upper and lower extremities bilaterally,
good posture, normal spinal alignment, normal gait and station,
normal coordination, normal motor bulk, tone, muscle strength 5/5
throughout, no atrophy, no spasms, and normal reflexes.
19
(Id. at
256, 265, 267-68, 272-73).
records
reflect
treatment
for
In sum, Dr. Tarabein’s treatment
successful,
Plaintiff’s
conservative
neck
and
pain
back
management
condition
with
medications and injections, and that, with the exception of some
decreased neck and back range of motion, she has had largely
normal examination findings.
As the ALJ found, these treatment
records are inconsistent with the severe limitations listed by
Dr.
Kidd
in
the
Physical
Capacities
Evaluation
and
Clinical
Assessment of Pain forms he completed.
In
addition,
Dr.
Kidd’s
opinions
are
at
odds
with
the
consultative report of Dr. Antonio Graham, D.O., dated October
19, 2013.
Plaintiff reported to Dr. Graham that she can dress
herself, drive, and do household chores in short intervals with
multiple
breaks,
including
sweeping,
vacuuming, cooking, and washing dishes.
Upon
examination,
Dr.
Graham
noted
shopping,
mopping,
(Doc. 12-7 at 77-78).
that
Plaintiff
had
“some
slight difficulty ambulating” (although he described her gait as
normal without an assistive device); she was able to get on and
off the exam table and up and out of the chair; she had normal
range of motion in her elbow, forearm, wrist, shoulder, cervical
spine, hip, knee, and ankle; she had decreased range of motion in
the lumbar spine; she had a normal straight leg raise, normal
squat,
and
was
able
to
walk
on
her
heels,
but
she
needed
assistance to walk on her toes due to balance; she had normal
20
motor strength (5/5 in lower extremities), and normal reflexes.
(Id. at 78-79).
Dr. Graham’s overall impression was:
normal
range of motion of the arms with some minor decrease in her
functional status due to arm pain from a fall in 2004; back pain
with range of motion exercises, but no limitations in range of
motion; imaging studies suggest moderate disc disease at L2-L3,
but negative straight leg raise in supine and sitting positions;
and no limitations due to restless leg syndrome.
(Id. at 80).
Dr. Graham concluded that “this patient does have some impairment
to her activity; however,
with some modifications of type of
employment and work that she could do, the patient most likely
could find some work to accommodate her limitations.”
80).
(Id. at
Like Dr. Tarabein, Dr. Graham’s opinions are inconsistent
with the severe limitations included by Dr. Kidd in the Physical
Capacities Evaluation and Clinical Assessment of Pain forms he
completed.10
10
As discussed, the ALJ accommodated Plaintiff’s limitations in
the RFC as follows: Plaintiff can perform less than the full
range of light work with the following restrictions: Plaintiff
can lift and/or carry 20 pounds occasionally and 10 pounds
frequently; she can sit, stand, walk for a total of 6 hours in an
8-hour day she can push and pull up to her lifting and carrying
limitations; she can occasionally handle, finger, and feel on her
left hand; she can occasionally climb ramps and stairs but must
avoid climbing ladders and scaffolds; she can frequently stoop,
kneel, crouch, and crawl; environmentally, she must avoid
unprotected heights; she is limited to performing simple,
routine, and repetitive tasks; and she can have only occasional
contact with the public. (Doc. 12-2 at 21).
21
The severe limitations included by Dr. Kidd in the Physical
Capacities Evaluation and Clinical Assessment of Pain forms he
completed are also inconsistent with Plaintiff’s activities of
daily
living,
which
include
taking
care
of
her
own
personal
needs, preparing simple meals daily, doing most household chores
at a slow pace, walking, driving, and riding in a car, shopping
at the grocery store, taking care of her own finances, reading
and
writing
daily,
and
(Doc. 12-6 at 32-35).
socializing
with
friends
and
family.
Again, while there is no question that
Plaintiff has limitations from her degenerative disc disease that
results in neck and back pain, the record supports the ALJ’s
determination that the severe limitations expressed by Dr. Kidd
are inconsistent with the substantial evidence in this case, as
detailed above.
Therefore, the ALJ had good cause to discredit
those opinions.
The
Court
further
finds,
based
on
the
evidence
detailed
above, that substantial evidence supports the ALJ’s finding that
Plaintiff has the RFC to perform less than the full range of
light work, with the stated restrictions.
Indeed, Plaintiff has
failed to show that any limitations caused by her impairments
exceed the RFC and are not accommodated by the RFC and its stated
restrictions.
Accordingly, Plaintiff’s claim must fail.11
11
Although Plaintiff has cited evidence in the record which she
claims supports a finding that she is disabled, that is, at best,
a contention that the record evidence supports a different
22
VII.
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 March, 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
finding.
That is not the standard on review. The issue is not
whether there is evidence in the record that would support a
different finding, but whether the ALJ’s finding is supported by
substantial evidence. See Figueroa v. Commissioner of Soc. Sec.,
2017 U.S. Dist. LEXIS 181734, *15-16, 2017 WL 4992021, *6-7 (M.D.
Fla. Nov. 2, 2017) (“Although Plaintiff cites to certain test
results, notes, and physical therapy findings as support for her
contention that ‘there were objective medical findings that
support the doctor’s opinions about [her] limitations’ . . .,
this is, at best, a contention that the record could support a
different finding. This is not the standard on review. The issue
is not whether a different finding could be supported by
substantial evidence, but whether this finding is.”).
23
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