Nicholas v. Colvin

Filing 19

Order re: 1 Complaint filed by Ashley Nicholas stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/8/18. (mpp) Copies to counsel

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ASHLEY NICHOLAS,
Plaintiff,
vs.
NANCY BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

*
*
*
*
* CIVIL ACTION NO. 16-000513-B
*
*
*
*
*
*
ORDER

Plaintiff Ashley Nicholas (hereinafter “Plaintiff”), seeks
judicial
Social

review

Security

of

a

final

denying

her

decision
claim

of

for

the

Commissioner

supplemental

of

security

income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq.

On October 5, 2017, the parties consented to have

the undersigned conduct any and all proceedings in this case.
(Doc. 14).
conduct

Thus, the action was referred to the undersigned to

all

proceedings

and

order

the

entry

of

judgment

in

accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73.

Upon careful consideration of the administrative

record and the memoranda of the parties, it is hereby ORDERED
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).

that the decision of the Commissioner be AFFIRMED.
I.

Procedural History2
Plaintiff protectively filed her application for benefits

on January 21, 2013, alleging disability beginning January 1,
2010, based on “fibromyalgia, depression, anxiety, hypertension,
high

cholesterol,

ambulation,

insomnia,

burn,

and

loss

of

obesity.”

motor
(Doc.

function,
7-6

at

limited
4,

7).

Plaintiff’s application was denied and upon timely request, she
was granted an administrative hearing before Administrative Law
Judge Linda J. Helm on September 26, 2014.

(Doc. 7-2 at 63).

Plaintiff attended the hearing with her counsel and provided
testimony related to her claims.
(“VE”)
(Doc.

also

appeared

7-2

at

unfavorable
(Doc.

7-2

request

at

94).

On

decision
at

for

The
on

hearing

May

finding

47).
review

the

(Id.).

28,
that

Appeals

August

8,

and

2015,

A vocational expert
provided

testimony.

the

issued

Plaintiff

ALJ

is

not

Council

denied

2016.

(Doc.

an

disabled.

Plaintiff’s
7-2

at

2).

Therefore, the ALJ’s decision dated May 28, 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. Because the transcript is
divided into separate documents, the Court’s citations include
the appropriate CM/ECF document number.

2

was conducted on October 26, 2017 (Doc. 17), 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 the ALJ erred in failing to
assign controlling weight to the opinions
of treating physician, Dr. Paul Smith,
M.D., while assigning great weight to the
opinions of consultative physician, Dr.
Nathaniel Hernandez, M.D.?
2. Whether the ALJ erred in failing to find
that
Plaintiff’s
fibromyalgia,
in
combination
with
her
rheumatoid
arthritis,
medically
equaled
Listing
14.09D?3

III. Factual Background
Plaintiff was born on August 16, 1964, and was fifty years
of age at the time of her administrative hearing on September
26, 2014.

(Doc. 7-2 at 69; Doc. 7-6 at 4).

Plaintiff graduated

from high school and took college courses in nursing for one
month.

(Doc. 7-2 at 71).

Plaintiff has worked intermittently as a fast food worker,
domestic housekeeper, and hospital cleaner from 2009 to 2011.
(Doc. 7-2 at 72-74, 95-97).

At the administrative hearing,

3

Plaintiff also raises an issue related to the ALJ’s treatment of
her fibromyalgia under SSR 12-2p.
The Court will consider all
of Plaintiff’s arguments related to her fibromyalgia together.

3

Plaintiff testified that she cannot work now because she cannot
stand more than ten minutes because of hip pain; she has trouble
concentrating; and her medications make her disoriented.
7-2 at 75, 77, 91).

(Doc.

Plaintiff’s medications include Lyrica for

fibromyalgia, Xanax for insomnia, Viibryd for depression, and
Mobic for pain in her back and legs, and she reported that all
of them provide her with some relief. (Doc. 7-2 at 76, 84, 90).
The

side

effects

from

Plaintiff’s

gain and nervousness/shaking.

medications

include

weight

(Doc. 7-2 at 91, 94).

IV. Standard of Review
In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

4

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.

4

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

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.

Statutory and Regulatory Framework
An individual who applies for Social Security disability

benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

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

see

Social

sequential

also

20

Security

evaluation

5

§§

regulations
process

determining if a claimant has proven his disability.
§§ 404.1520, 416.920.

C.F.R.

for

20 C.F.R.

The
engaged

claimant
in

must

first

substantial

prove

gainful

that

he

or

activity.

The

she

has

second

not
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
claimant

meets

is

or

equals

automatically

a

listed

found

education, or work experience.

impairment,

disabled

regardless

then

the

of

age,

If the claimant cannot prevail

at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
1986).
the

Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.

In evaluating whether the claimant has met this burden,

examiner

must

consider

the

following

four

factors:

(1)

objective medical facts and clinical findings; (2) diagnoses of
examining
claimant’s

physicians;
age,

(3)

education

evidence
and

work

of

pain;

history.

and
Id.

(4)

the

Once

a

claimant meets this burden, it becomes the Commissioner’s burden
to prove at the fifth step that the claimant is capable of
engaging in another kind of substantial gainful employment which
exists in significant numbers in the national economy, given the
claimant’s

residual

work history.
1985).

functional

capacity,

age,

education,

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

6

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)).
VI.

Discussion
A. Substantial evidence supports the weight
that the ALJ accorded to the expert
medical opinions in this case.
Plaintiff argues that the ALJ erred in assigning little

weight

to

the

opinions

of

her

treating

physician,

Dr.

Paul

Smith, M.D., while assigning great weight to the opinion of
consultative internist, Dr. Nathaniel Hernandez, M.D. (Doc. 7-7
at 110; Doc. 8 at 2-8).

Defendant counters that substantial

evidence supports the ALJ’s assignment of weight to the expert
opinions in this case, as well as the ALJ’s determination that
Plaintiff has the RFC to perform a range of light work.
11 at 6).

(Doc.

Having reviewed the record at length, the Court finds

that Plaintiff’s claim is without merit.
In this case, the ALJ found at step two of the sequential
evaluation process that Plaintiff has the severe impairments of
degenerative disc disease, osteoarthritis, fibromyalgia, obesity,
affective

disorder/depression

7

with

anxiety,

and

hypertension/history

determined

that

of

burn.

5

(Doc.

Plaintiff’s

7-2

at

49).

respiratory

impairment

hypercholesterolemia were not severe impairments. 6
51).

The

ALJ
and

(Doc. 7-2 at

The ALJ also concluded that Plaintiff has the Residual

Functional

Capacity

for

light

work,

with

the

following

restrictions: “she can lift and carry 20 pounds occasionally and
10

pounds

frequently;

she

must

alternate

between

sitting,

standing, and walking about every hour but would not need to
leave the workstation; she can push and pull within the cited
weight tolerances, but is limited to occasional operation of
foot controls bilaterally; she can occasionally climb ramps and
stairs

but

never

ladders,

ropes

or

scaffolds:

she

can

occasionally balance, stoop and crouch but never kneel or crawl;
she must avoid unprotected heights and moving mechanical parts;
she must avoid tasks involving a variety of instructions or
tasks but is able to understand to carry out simple 1- or 2-step
instructions;

she

can

understand

to

carry

out

detailed

but

uninvolved written or oral instructions involving a few concrete
variables in or from standardized situations; she can tolerate
occasional

contact

with

coworkers,

primarily

superficial

and

5

The ALJ found, “[w]hile not severe individually, . . . [the]
hypertension and a history of burn [are] severe in combination.”
(Doc. 7-2 at 50).
6

Plaintiff does not challenge the ALJ’s finding related to her
non-severe impairments.

8

without

teamwork

requirements;

she

cannot

interact

with

the

public; when dealing with changes in the work setting, she is
limited to simple work-related decisions.”

(Doc. 7-2 at 53).

Based on the testimony of the VE, in conjunction with the other
evidence of record, the ALJ found that, Plaintiff cannot perform
her

past

hospital

work

as

cleaner;

a

fast

food

worker,

however,

she

can

helper,

and

domestic

garment

assembler,

office

unskilled.

(Doc. 7-2 at 57, 100-01).

perform

housekeeper,

the

sorter,

jobs
all

of

or

bench

light

and

Therefore, the ALJ concluded

that Plaintiff is not disabled.
Residual

functional

capacity

is

a

measure

of

claimant can do despite his or her credible limitations.
C.F.R.

§

404.1545.

Determinations

of

a

claimant’s

what

a

See 20
residual

functional capacity 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 residual functional capacity (“RFC”),
the claimant bears the burden of demonstrating that the ALJ’s
decision is not supported by substantial evidence.

9

See Flynn v.

Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).

Plaintiff has

failed to meet her burden in this case.
As part of the disability determination process, the ALJ is
tasked

with

examining,

weighing
and

the

opinions

non-examining

and

findings

physicians.

In

of

treating,

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.

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 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)).

However, 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).

An ALJ is also “required to consider the opinions of

non-examining state agency medical and psychological consultants

10

because they ‘are highly qualified physicians and psychologists
who are also experts in Social Security disability evaluation.’”
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,

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

ALJ

may

reject

any

medical

opinion if the evidence supports a contrary finding.).
The Court turns first to Plaintiff’s claim that the ALJ
erred in failing to assign controlling weight to the opinions of

11

her treating physician,
2014,

questionnaire

(Doc. 7-7 at 155).

and

Dr. Smith, contained in the June 5,
clinical

assessment

of

pain

forms.

The record reflects that Dr. Smith treated

Plaintiff from 2010 to 2015 for low back pain, fibromyalgia, and
depression.

(Id.).

On June 5, 2014, Dr. Smith opined in the

questionnaire form that Plaintiff’s low back pain prevents her
from working.

(Id.).

In the clinical assessment of pain form,

Dr. Smith stated that it was his opinion that physical activity
would

greatly

increase

Plaintiff’s

symptoms

and

cause

distraction from task or total abandonment of task and that she
could not engage in any form of gainful employment due to her
low back pain.
The ALJ

(Doc. 7-7 at 155-56).
gave little weight to

Dr. Smith’s opinions and

explained as follows:
Giving the claimant the benefit of the doubt, I
find
disc
degeneration,
osteoarthrosis
and
fibromyalgia severe, despite a noteworthy lack of
objective medical evidence.
The claimant’s
primary care provider is internist Paul Smith,
M.D. (Dr. Smith) of Smith & Gayle Medical Center,
whose records reveal long-standing reports of low
back pain by the claimant since the establishment
of care in 2010.
However, the overall medical
record
contains
scant
clinical
findings
to
establish the claimant with significant joint
dysfunction or disc impairment of the lumbar,
thoracic or cervical spine at the time of alleged
onset in 2010 (Exhibits 7F, 16F, testimony). In
fact, the only radiology in evidence comprises xrays of the pelvis and sacrum from October 2013,
with findings of facet joint arthropathy at L4-L5
and minor osteoarthritis of the SI joints
bilaterally which an attending physician cited as

12

within normal limits (Exhibit 11F/2, 4-5).
Nonetheless, Dr. Smith’s records show that early
in 2010, he began prescribing NSAID and narcotic
medication of Motrin and Lortab, along with the
muscle relaxant Soma to address low back pain,
with Lyrica added a few months later for
purported
fibromyalgia
(Exhibits
7F,
10F).
Significantly, these records lack objective data,
where they primarily reiterate the claimant’s
subjective reports (i.e. “insomnia is improved,”
Exhibit 7F/34), with only check marks on a form
indicating normal physical examinations followed
by a terse summary diagnosis (“low back pain,”
Exhibit 7F/35) and the medications dispensed.
Dr. Smith does not provide clinical findings to
corroborate the claimant’s allegations, such as
an impaired gait, or demonstrated loss of motion
or strength because of observed dysfunction with
the hands, major joints or spine (Exhibits 7F,
10F). . . .
Dr. Smith’s records do cite fibromyalgia and low
back pain, yet despite his status as a treating
provider, I cannot give controlling weight to his
findings
in
the
absence
of
objective,
corroborative medical data.
As already noted,
his office records are terse, subjective in
nature, and seriously deficient in providing
appropriate
data
as
to
the
claimant’s
physiological functional ability.
Moreover, in
2010, he initiated Lyrica without laboratory
evidence of fibromyalgia, and began prescribing
narcotics
(Lortab,
later
changed
to
Norco)
despite
consistently
normal
findings
on
musculoskeletal
and
neurological
examinations
(Exhibits 7F, 10F). Indeed, a review of 3 years
of treatment records reveals only a single
notation of paraspinal muscle tenderness, on
September 16, 2010 (emphasis added), but where
the majority of the data merely relates the
claimant’s subjective statements that various
medication “help” (Lyrica for fibro, Lortab/Norco
for back pain and Xanax for insomnia) (Exhibits
7F, 10F, 12F).
Evidently, Dr. Smith has also not seen a need for

13

escalated care, since he has not referred his
patient to a pain specialist or orthopaedist, nor
has he requested x-rays to more clearly establish
the etiology of the claimant’s symptoms.
The
only x-rays on record were taken in 2013; 3 years
after the establishment of care with Dr. Smith
and they were not done at the request of the
primary care provider.
Rather, they were taken
when the claimant went to the emergency room once
after she experienced an episode of sacral pain
radiating into the leg, and where she reported a
fall about a year before; an event found nowhere
else in the treatment record (Exhibit 11F/1).
Despite the claimant’s testimony that Dr. Smith
has recommended she see a specialist, which she
reportedly
has
not
done
due
to
financial
constraint, this remains subjective and without
verification in the medical record (Exhibits 7F,
10F).
Consequently, I accord very little weight to a
questionnaire and pain assessment completed by
Dr. Smith in June 2014 (Exhibit 15F). He asserts
that the claimant “cannot work” due to low back
pain,
which,
aside
from
the
fact
such
a
determination is reserved to the Commissioner
(SSR 96-5p), is inconsistent with his treatment
records
and
with
the
record
as
a
whole.
Additionally, rather than citing actual clinical
findings to support his diagnosis, the doctor
instead cited only “patient history” as his
foundation
(Exhibit
15F/2).
Finally,
contradicting his previous statement that Ms.
Nicholas cannot work, Dr. Smith replied “yes” to
this question:
Can the claimant engage in any form of
gainful
employment
on
a
repetitive,
competitive and productive basis over an
eight hour work day, forty hours a week,
without missing more than 2 days of work per
month or experiencing frequent interruptions
to his/her work routine due to symptoms of
his/her disease or medical problems?
A
treating
physician’s
opinion
is
given
controlling weight only when it is well supported

14

by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent
with other substantial evidence in the case
record. . . .
The consultative examination by Dr. Hernandez at
MDSI is more comprehensive, and more in line with
the overall record, and so I accord it great
weight.
In May 2013, Dr. Hernandez assessed
fibromyalgia, and proposed the claimant with a
light
exertional
capacity.
The
doctor
also
highlighted no trigger points present below the
waist, only at the shoulders and scapulae
bilaterally; although he did observe ankle edema
(Exhibit 8F).
This is synchronous with other
inconsistencies found in the objective record as
a whole, i.e. the claimant complains of low back
pain, but Dr. Hernandez reported very little in
the way of clinical findings associated with this
condition.
For
instance,
he
found
negative
straight leg raises, no instability or gait
impairment, good range of motion in the hips and
lumbar spine, full strength and sensation in all
extremities and a normal grip, despite evidence
of a skin graft on the left arm (Exhibit 8F).
Dr. Hunte’s examination a year later is given
less weight due to contradictory data, and the
claimant’s failure to cooperate.
Particularly,
Ms. Nicholas refused to walk or squat during the
physical, and she later testified the reason was
she was having a “very bad day” with regard to
hip pain (Exhibit 13F, testimony).
Yet by
contrast, Dr. Hunte found no limits on range of
motion in the hips, spine, ankles or knees, and
he opined the claimant exaggerated her symptoms.
In light of this, the doctor’s accompanying RFC
form is given little evidentiary weight.
First,
he
proposed
physical
parameters,
but
then
undercut his findings by writing, “I am unsure
regarding this person’s work potential because
she was uncooperative and
histrionic” (Exhibit
13F/10).
Second, he suggested the claimant “may
need 2-4 hours of bed rest/day (Exhibit 13F/6),
which is internally inconsistent with other
portions of the form, since he found her able to
sit, stand and walk for an entire 8-hour day

15

(Exhibit 13F/6). . . .
In
sum,
DDS
evaluations;
consultative
examinations; treatment records, function reports
and the overall record support the above RFC
assessment.
The preponderance of objective
evidence, when considered in light of a dearth of
corroborating data, fails to demonstrate the
claimant experiences the extreme level of pain
and physical or psychological problems that she
professes. While some data does support episodic
back and joint myofascial pain, along with a lack
of interest and social avoidance, the overall
record shows she retains the capacity for a range
of light work as set forth in the assigned RFC.
(Doc. 7-2 at 49-56).
The

record

supports

the

ALJ’s

findings

related

Smith’s treatment of Plaintiff’s back condition.

to

Dr.

As the ALJ

found, Dr. Smith treated Plaintiff’s allegedly debilitating pain
with medication only; he ordered no x-rays, nor are there any xrays or other objective clinical evidence which would support
the severity of Plaintiff’s complaints of pain; 7 and Dr. Smith’s
objective, physical examination findings related to Plaintiff’s
“musculoskeletal/back” were consistently normal. 8

(Doc. 7-7 at

7

As the ALJ found, the only x-rays in the record are two x-rays
taken in the hospital on October 8, 2013, when Plaintiff
presented with complaints of sacral pain radiating down her leg.
(Doc. 7-7 at 130-34).
The x-rays of Plaintiff’s pelvis and
sacrum show degenerative changes in hips and lower lumbar spine
and “mild” osteoarthritis of the hips and sacroiliac joints,
described as “WNL” (within normal limits).
(Doc. 7-7 at 131,
133-34).
8

As the ALJ noted, while Dr. Smith’s notes are terse, they
indicate
consistently
normal
examination
findings.
Specifically, the form that Dr. Smith used to record his
16

73-107, 124-29, 136, 150-52, 166-73).

The record also supports

the

opinions

ALJ’s

finding

that

Dr.

Smith’s

are

internally

inconsistent, as he opined in the diagnosis questionnaire form
dated June 5, 2014, that Plaintiff cannot work because of her
pain and in the clinical assessment of pain form completed on
the same date that Plaintiff can work.

(Doc. 7-7 at 155-57).

Also, as the ALJ found, Dr. Smith’s opinion that Plaintiff
cannot

work

due

inconsistent

with

to

the

the

severity

findings

and

of

her

low

opinions

back

of

pain

is

consultative

physicians, Dr. Hernandez and Dr. Hunte.

The record shows that

Dr.

Plaintiff

Nathaniel

Hernandez,

M.D.,

examined

on

May

4,

2013, and found that she had tenderness around her bilateral
shoulders and right scapula and left ankle swelling. (Doc. 7-7
at 110-12).

However, as the ALJ noted, Dr. Hernandez also found

that Plaintiff had a normal gait, no tenderness in bilateral
lower extremities, 5/5 strength in bilateral upper extremities
including grip, no atrophy, normal muscle bulk and tone, normal
gross and fine motor skills with no evidence of tenderness or
weakness, and a normal sensory exam throughout upper and lower

findings provided that categories indicated by a check mark had
been examined and were found to be “normal” unless indicated
otherwise.
(Doc. 7-7 at 107, 362).
The vast majority of Dr.
Smith’s progress notes, including the musculoskeletal exams, are
without comment other than a check mark, indicating that his
findings were normal. (Doc. 7-7 at 73-107, 124-29, 136, 150-52,
166-73).

17

extremities.

(Doc. 7-7 at 112-14).

Dr. Hernandez diagnosed

Plaintiff with fibromyalgia and opined that she could stand/walk
for six hours, sit without limitation, lift ten to twenty pounds
occasionally

and

five

to

ten

pounds

frequently,

had

no

limitations in reaching, handling, fingering, or feeling, and
had no other limitations, including no need for an assistive
device.
In

(Doc. 7-7 at 114).
addition,

consultative

physician,

Dr.

Eyston

Hunte,

M.D., examined Plaintiff on April 23, 2014, and noted that she
refused to stand so that he could assess her height.

Upon

physical examination, Dr. Hunte noted normal upper and lower
extremity strength with no motor deficit and no atrophy, normal
range of motion in cervical spine with no tenderness, normal
range of motion in lumbar spine with reported tenderness, normal
range of motion in hips with reported tenderness, and normal
deep tendon reflexes.
“this

lady

was

(Doc. 7-7 at 140-43).

uncooperative

and

Dr. Hunte noted,

demonstrated

throughout

the

exam complaining of such severe pain in the right hip especially
that she could not stand or walk or get onto the exam table.
She had the assistance of her son when she tried to do anything.
It is my belief that she was able to do more than what she
actually did.”
Medical

Source

frequently

lift

(Doc. 7-7 at 141).
Statement,
twenty

Dr. Hunte also completed a

finding

pounds,

18

that

occasionally

Plaintiff
lift/carry

could
up

to

fifty pounds, sit for four hours, and stand/walk for two hours
each.9

(Doc. 7-7 at 144).

Also, as the ALJ found, the record contains evidence of
Plaintiff’s

activities

of

daily

living,

which

include

the

ability to care for herself, shop, drive, prepare simple meals,
and perform light housework such as laundry, dishes, and making
her bed.
In

(Doc. 7-2 at 70; Doc. 7-6 at 20-22; Doc. 7-7 at 111).
support

of

her

argument

that

the

ALJ

erred

in

discrediting Dr. Smith’s opinion that she cannot work due to her
low back pain, Plaintiff points to treatment records showing
that she was diagnosed with low back pain as early as 2010; that
she was prescribed Lyrica; that she continued to complain of low
back pain in 2014; that an x-ray of her pelvis in 2013 showed
degenerative changes of bilateral hips and mild osteoarthritis
of sacroiliac joints, described as “WNL” (within normal limits);
and that consultative examiner, Dr. Hunte, found that she had
“tenderness” over the lower lumbar area and diagnosed her with
chronic

pain

syndrome,

osteoarthrosis

of

pelvic

region

and

thigh, degeneration of lumbar disc, and myalgia. (Doc. 8 at 4-5;
Doc. 7-7 at 131-34, 143).
9

Dr. Hunte also opined that Plaintiff may need two to four hours
of bedrest per day, which the ALJ rejected as inconsistent with
Dr. Hunte’s own findings that she could work a full eight-hour
day.
(Doc. 7-7 at 145).
Dr. Hunte added that he was “unsure
regarding
this
person’s
work
potential
because
she
was
uncooperative and histrionic.” (Doc. 7-7 at 149).

19

While this evidence supports the diagnoses of degenerative
disc disease and osteoarthrosis in Plaintiff’s lumbar spine and
pelvis, it does not support the severity of limitation opined by
Dr. Smith, nor does it alter the fact that Dr. Smith’s opinion
is inconsistent with his own treatment records and his related
opinion

that

substantial

Plaintiff
medical

can

work,

as

well

in

the

case

evidence

as

the

and

remaining

evidence

of

Plaintiff’s activities of daily living.

For these reasons, the

ALJ

Smith’s

had

good

cause

to

discredit

Dr.

opinions,

and

Plaintiff’s claim that the ALJ erred in doing so is without
merit.
Likewise,

Plaintiff’s

argument

that

the

ALJ

erred

in

assigning great weight to the opinions of Dr. Hernandez fails.
As detailed above, the findings and opinions of Dr. Hernandez
are

consistent

with

the

normal

examination

findings

of

Dr.

Smith, the normal examination findings of Dr. Hernandez and Dr.
Hunte, and Plaintiff’s activities of daily living.
Plaintiff’s
weight

to

argument
the

that

opinion

of

the

ALJ

Dr.

erred

Hernandez

in

Therefore,

assigning

that

great

Plaintiff

can

perform work at the light exertional level is without merit.
B. Substantial evidence supports the ALJ’s
determination
that
Plaintiff’s
fibromyalgia
and
arthritis
did
not
medically equal Listing 14.09D.
Next, Plaintiff argues that the ALJ erred in failing to

20

find that her fibromyalgia, in combination with her “rheumatoid
arthritis,”

equaled

(Doc. 8 at 8).

Listing

14.09D

(Inflammatory

Arthritis).

Plaintiff points out that, under SSR 12-2p,

fibromyalgia cannot meet a Listing since there is no listing for
such a condition; however, the ALJ must consider whether it
medically equals a Listing, such as 14.09D, for inflammatory
arthritis.

(Doc. 8 at 9).

First,
presupposes

as
a

noted

Plaintiff’s argument is unavailing.

by

diagnosis

Defendant,
for

Plaintiff’s

rheumatoid

arthritis, which is nowhere in the record.
only

diagnosis

of

arthritis

in

the

or

argument

inflammatory

To the contrary, the
record

is

that

of

osteoarthrosis by consultative examiner, Dr. Hunte (Doc. 7-7 at
143), which is supported by an x-ray of Plaintiff’s pelvis taken
on

October

7,

2013,

bilateral SI joints.”
even

a

diagnosis

of

showing

“mild

osteoarthritis

(Doc. 7-7 at 133).
rheumatoid

or

of

the

Given the absence of

inflammatory

arthritis,

Plaintiff’s argument that her condition equaled Listing 14.09D
(Inflammatory

Arthritis)

cannot

succeed.

10

See

Moses

v.

Berryhill, 2017 U.S. Dist. LEXIS 10192, *8, 2017 WL 372981, *3
(M.D. Ala. Jan. 25, 2017) (finding that Plaintiff did not meet
Listing

14.09D

where

Plaintiff

10

had

not

been

diagnosed

with

Notably, the ALJ considered Plaintiff’s osteoarthritis and
fibromyalgia in relation to Listing 1.02 (Major Dysfunction of a
Joint) and concluded that the conditions did not equal the
Listing.
(Doc. 7-2 at 51; Doc. 8 at 9).
Plaintiff does not
challenge that finding.
21

inflammatory arthritis during the adjudication period).
Moreover, Listing 14.09D, Inflammatory Arthritis, expressly
requires:
D. Repeated manifestations of inflammatory
arthritis
with
at
least
two
of
the
constitutional symptoms or signs (severe
fatigue, fever, malaise, or involuntary
weight loss) and one of the following at the
marked level:
1.
living.

Limitation

of

2. Limitation
functioning.

activities

in

of

maintaining

daily
social

3. Limitation in completing tasks in a
timely
manner
due
to
deficiencies
in
concentration, persistence and pace.
See 20 C.F.R. pt. 404, subpt. P, app. 1, Listing 14.09D; see
also Grace v. Colvin, 2016 U.S. Dist. LEXIS 108847, *14, 2016 WL
4379477, *5 (N.D. Ala. Aug. 17, 2016) (“to equal Listing 14.09,
‘the claimant would have to demonstrate that her [fibromyalgia]
had caused . . . repeated inflammation with marked limitations
in the claimant’s functional domains.’”) (emphasis added).
In this case, not only has Plaintiff failed to establish a
diagnosis of inflammatory or rheumatoid arthritis, she has also
failed

to

establish

repeated

manifestations

of

inflammatory

arthritis with signs such as, severe fatigue, fever, malaise, or
involuntary

weight

loss

and

a

“marked”

limitation

in

either

activities of daily living, maintaining social functioning, or

22

in completing tasks in a timely manner due to deficiencies in
concentration, persistence and pace.

To the contrary, the ALJ

found that Plaintiff had only a mild restriction in activities
of daily living, moderate difficulties in social functioning,
and

moderate

difficulties

persistence or pace.

with

regard

(Doc. 7-2 at 52).

to

concentration,

Plaintiff does not

challenge the ALJ’s findings in this regard.

Therefore, for

each of these reasons, Plaintiff’s argument that the ALJ erred
in

failing

to

find

that

her

fibromyalgia

and

“rheumatoid

arthritis” equaled Listing 14.09D is without merit.
Last, Plaintiff argues that the ALJ erred in failing to
properly assess the waxing and waning nature of her fibromyalgia
under SSR 12-2p.

(Doc. 8 at 9).

that

emphasizes

SSR

12-2p

Specifically, Plaintiff argues

the

importance

of

longitudinal

information given the recognition that fibromyalgia can involve
varying

signs

and

symptoms;

yet,

consultative

examiner,

Dr.

Hernandez, noted in his evaluation on May 4, 2013, that he did
not review any of Plaintiff’s past medical records prior to the
examination.
ALJ

indicated

(Doc. 7-7 at 110).
that

he

gave

great

According to Plaintiff, the
weight

to

Dr.

Hernandez’s

opinions because they were more comprehensive than Dr. Smith’s
opinions and more consistent with the overall record; however,
by giving great weight to Dr. Hernandez’s opinions, when he did
not review her past medical records, the ALJ failed to properly

23

assess the waxing and waning nature of
required by SSR 12-2p.

her fibromyalgia, as

Plaintiff’s argument is misplaced.

SSR 12-2p provides that “[b]ecause the symptoms and signs
of [fibromyalgia] may vary in severity over time and may even be
absent on some days, it is important that the medical source who
conducts

the

CE

[consultative

examination]

longitudinal information about the person.

has

access

to

However, we may rely

on the CE report even if the person who conducts the CE did not
have access to longitudinal evidence if we determine that the CE
is the most probative evidence in the case record.”

SSR 12-2p,

2012 WL 3104869.
While Plaintiff is correct that Dr. Hernandez did not have
access

to

evaluation,

her

longitudinal

there

is

no

information
question

before

that

his

performing

his

opinions

are

consistent with the longitudinal medical record in this case,
including Dr. Smith’s consistently normal examination findings,
and Dr. Hunte’s normal examination findings.

Moreover, there is

no question that Dr. Hernandez’s opinions are consistent with
his own physical examination findings, 11 as well as the evidence

11

As previously discussed, Dr. Hernandez diagnosed Plaintiff with
fibromyalgia but found that she had a normal gait, no tenderness
in bilateral lower extremities, 5/5 strength in bilateral upper
extremities including grip, no atrophy, normal muscle bulk and
tone, normal gross and fine motor skills with no evidence of
tenderness or weakness, normal sensory exam throughout upper and
lower extremities; that she could stand/walk for six hours, sit
without limitation, lift ten to twenty pounds occasionally and
24

of Plaintiff’s activities of daily living.

Also, while Dr.

Hernandez did not have the benefit of Plaintiff’s longitudinal
medical records, the ALJ did have access to the longitudinal
medical

records,

nature

of

and

even

fibromyalgia,

considering
the

the

substantial

waxing

and

objective

waning
medical

evidence in this case does not support limitations in excess of
Plaintiff’s

RFC.

Accordingly,

for

each

of

these

reasons,

Plaintiff’s arguments related to the ALJ’s consideration of her
fibromyalgia are without merit.
Last, the Court finds that the substantial evidence in this
case, detailed above, supports the RFC for 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 stated restrictions.
Accordingly, the Court finds that Plaintiff’s claims are
without merit.
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

five to ten pounds frequently; that she had no limitations in
reaching, handling, fingering, or feeling; and that she had no
other limitations, including no need for an assistive device.
(Doc. 7-7 at 112-14).
25

supplemental security income be AFFIRMED.
DONE this 8th day of March, 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

26