Jemison v. Colvin

Filing 23

Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability and disability insurance benefits income be REVERSED and REMANDED.. Signed by Magistrate Judge Sonja F. Bivins on 8/25/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CHESTER JEMISON,

*
*
*
*
* Civil Action No: 2:13-00308-B
*
*
*
*
*
*

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

ORDER
Plaintiff Chester Jemison (hereinafter “Plaintiff”) brings
this action seeking judicial review of a final decision of the
Commissioner of Social Security denying his claim for a period
of disability and disability insurance benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 401, et seq.

On April

10, 2014, the parties consented to have the undersigned conduct
any and all proceedings in this case. (Doc. 20).
action

was

referred

to

the

undersigned

to

Thus, the
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.
careful

consideration

of

the

administrative

record

and

Upon
the

memoranda of the parties, it is hereby ORDERED that the decision
of the Commissioner be REVERSED and REMANDED.

I.

Procedural History
Plaintiff protectively filed an application for a period of

disability and disability insurance benefits income on September
8, 2009. (Doc. 15 at 1; Tr. 105-08).

Plaintiff alleges that he

has been disabled since June 19, 2009, due to his back injury,
carpal tunnel syndrome, feet problems, arthritis in his knees,
and high cholesterol. (Tr. 144).

Plaintiff’s applications were

denied and upon timely request, he was granted an administrative
hearing

before

Administrative

Law

(hereinafter “ALJ”) on May 9, 2011.

Judge

Jerome

L.

Mumford

The hearing was attended by

Plaintiff, his attorney, and a vocational expert (hereinafter
“VE”). (Id., at
unfavorable

34).

decision

(Id., at 13-26).

On

June

finding

20,

that

2011,

the

Plaintiff

is

ALJ
not

issued

an

disabled.

The Appeals Council denied Plaintiff’s request

for review on January 25, 2013. (Id., at 1-3).

Thus, the ALJ’s

decision dated June 20, 2011, became the final decision of the
Commissioner.

The parties waived oral argument (Docs. 22, 23),

and 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

A. Whether the ALJ erred in assigning controlling
weight to the opinion of a physical therapist,
which is not an “acceptable medical source”
pursuant to 20 C.F.R. § 404.1513.

2

B. Whether the ALJ erred in rejecting the opinions
of Plaintiff’s treating physician and the
consultative examiner.
III. Factual Background
Plaintiff was born on March 9, 1968, and was 44 years of
age at the time of his administrative hearing on August 30,
2012. (Tr. 63).
a

high

school

commercial

Plaintiff testified at the hearing that he has
diploma

roofing

and

last

company

in

worked
June

as

a

2011.

manager

for

According

a
to

Plaintiff, he performed roofing and waterproofing duties until
June 20, 2011 when he fell 20-30 feet through a roof, hit a
metal bar on the way down, and was rendered unconscious. (Id.,
at 64-66, 341).

As a result of this fall, Plaintiff sustained

multiple injuries, including injury to his pelvic, cervical and
thoracic spine, liver, spleen, ribs, and scalp. (Id., at 198).
Plaintiff underwent medical and surgical procedures including an
IR

arteriogram,

bronchoscopy,
hospitalized
wheelchair

scalp

pelvic
for

to

fixation,

10

an

additional 13 days.

laceration

days,

inpatient

and

and

CT

then

closure,
scans.
was

rehabilitation

fiber

optic

Plaintiff

discharged
center

in
for

was
a
an

At the time of his release, Plaintiff had

progressed from a wheelchair to a walker. (Id., at 69-70).
Plaintiff testified that he uses a cane to walk and can
possibly walk about one-third (1/3) of a football field without
his cane, and that he walks “extremely” carefully because his

3

surgeon informed him that if he falls, his screws will rip out
and because his pelvic plate cannot be repaired again, he would
be rendered permanently unable to walk. (Id., at 69, 76).
Plaintiff contends that he is unable to work based on a
combination of all of the injuries he sustained from the fall
and his ongoing pain. (Id., at 67-68).

According to Plaintiff,

he

such

cannot

perform

household

chores,

as

sweeping

and

mopping, and is unable to lift a gallon of milk without pain.
Plaintiff testified that he is able to fold laundry. (Id., at
72-73).
In

his

decision,

the

ALJ

made

the

following

relevant

findings:
The claimant has the following severe impairments:
history of multiple fall trauma including status
post fracture of pelvic ring with open reduction
internal fixation of pubic synthesis (pelvic ring);
fracture of sacro iliac joint with closed fixation;
C-2 vertebral fracture; fracture of T2 vertebral
end-plate; obesity (“5/9 at 289 lbs[.]”); and
situational depression (20 CFR 404.1520(c)).1
The above about severe combination of impairments
has
been
determined
by
medically
acceptable
evidence, including signs, symptoms, and laboratory
findings… [T]he undersigned finds this medically
determinable combination of constitutes more than a
slight
abnormality,
and
could
reasonably
be
1

The ALJ also determined that Plaintiff has not engaged in
substantial gainful activity since June 11, 2011, and that he
does not have an impairment or combination of impairments that
meets or medically equals any of the listed impairments
contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id., at
12, 13).

4

expected to have caused more than minimal effect on
claimant’s ability to perform basic work related
activities for a continuous period of 12 or more
months.
…
(Id., at 12).
The ALJ summarized Plaintiff’s medical records as follows:
The medical record of evidence indicated that the
claimant presented to the emergency room June 20,
2011, subsequent to a 20 feet fall through a window
on a roof. The claimant sustained pelvic fractures,
left iliac vein injury, T2 superior endplate
fracture,
C2
fracture,
liver
and
splenic
lacerations, multiple rib fractures, left pulmonary
contusion, and left L4 through L5 transverse
process fractures. The claimant underwent open
reduction internal fixation to repair the pelvic
fractures and left sacro-iliac joint. In order to
facilitate healing, the claimant was to remain nonweight bearing for three months. Additionally, the
claimant was noted to be hypertensive and placed on
blood pressure medication with better control… The
claimant was discharged to inpatient rehabilitation
until he progressed sufficiently to be released to
Home
health
care
and
physical
therapy….
In
September 2011, the claimant admitted to some
weight bearing before being released to do [so].
Radiographic imaging noted that screws had loosened
as a result of his non-compliance with no weight
bearing. Additionally, claimant was charted as
taking too many narcotics and not as prescribed…
In November 2011, the claimant was noted as making
very slow progress due in part to his obesity
despite counseling as to the need to lose weight.
The claimant was noted to have gained 7 pounds with
a weight of 277 pounds. Upon examination, however,
the
claimant
could
rise
from
a
chair
with
difficulty using a cane; could ambulate without the
cane albeit poorly; and leaned forward when using
the cane although he was antalgic with a slow gate.
The pelvis was known as completely stable with the
pelvic right in excellent position. The claimant’s

5

treating physician express for the claimant morbid
obesity would significantly impact the outcome of
the pelvic ring fracture as it shifts the center of
gravity; the increased lordosis of the spine would
compound discomfort; and the claimant did not
perform his home exercises as instructed. X-rays
indicated that the pelvic ring was stable, healed;
the sacro iliac joint was anatomically educed; and
there was no progressive loosening of screws.
On April 12, 2012, the claimant presented for
follow-up. He reported that he quit smoking for the
last few months; and complained of low back pain
with numbness and paresthesias in the medial left
thigh. The claimant was noted as weighing 288
pounds. Upon examination, the claimant was noted to
have three (3) Waddell signs with equivocal
straight leg test bilaterally; antalgic gate on the
left; could walk heels and toes; and could flex and
get
his
hands
to
his
knees.
Additionally,
tenderness was noted upon passive range of motion
of the left hip; tenderness to palpitation midline
LS joint; and no focal weakness. X-rays indicated a
transverse process fracture of the lumbar spine,
but were otherwise unremarkable. The claimant was
noted to have unfortunately reached maximum medical
improvement and that his morbid obesity would
always cause him to have discomfort unless he had
significant weight loss. The claimant was also told
that he needed to continue a much more aggressive
daily exercise program to have any hope of
returning to his previous work…
The claimant presented for continued follow-up on
June 13, 2012. He weighed 296 pounds; complained of
pain at a level 5 out of 10; and denied any adverse
affect
or
complications
of
treatment.
Upon
examination, he was noted to have moderate pain and
stiffness with manual stretching of the hips; 5/5
upper extremities; 3-4/5 in his right leg and 4/5
in his left leg with equal reflexes. The claimant
had negative straight leg raising; no external
edema; diminished lumbar flexion; normal lumbar
inspection; and tenderness to palpitation of the
cervical, thoracic, and lumbar spines.

6

On
June
18,
2012,
R.
Rick
Harris,
M.D.,
consultatively examined claimant at the request of
the State agency. Dr. Harris noted that the
claimant
walked
markedly
slow
stooped
gait,
however, the physical examination results indicated
reported pain on full range of motion of the neck,
shoulders, elbows, wrists and hands. The claimant
had a normal grip, normal sensation; and 5/5 motor
strength
in
the
bilateral
upper
and
lower
extremities. The claimant did have decreased range
of motion of the left hip; + straight leg raising
bilaterally; diffuse tenderness at mid back; equal
reflexes; and could not heal/toe walk or squat and
arise…
On July 11, 2012, the claimant continued to
complain of pain, but stated that he was ready for
his functional capacity evaluation. The claimant
complained of pain upon range of motion, but had
bilateral lower extremity strength of 4/5 and upper
extremity strength 4/5 bilaterally. The diagnostic
impression included that the claimant denied any
adverse affects of complications from his treatment
and that his quality of life improved, pain levels
reduced, and daily activity increased due to
current medical regimen… An MRI on July 20, 2012,
indicated some L4-5 bilateral facet hypertrophy and
L5–S1 facet spurring, but no disc protrusion or
neural impingement. X-rays indicated normal verbal
alignment and no fracture or subluxation…
On July 19, 2012, the claimant underwent a
functional capacities evaluation indicated a whole
body impairment of 3% based on a recommended lower
extremity impairment of 7% resulting from the sacro
iliac joint fracture. The claimant was observed
standing and/or walking for 20 minutes at a time
before having to sit down and poor functional
ability with most of the exercises performed. The
claimant could occasionally lift and/or carry 35-40
pounds; frequently lift 20 pounds; and push/pull.
The claimant could sit for up to an hour; stand for
30-40
minutes;
and
walk
for
30-40
minutes
alternately to complete an 8-hour work day. The
claimant could frequently climb stairs and ladders,
reach overhead, and bend or squat…

7

On August 3, 2012, the claimant returned to his
treating physician with complaints of pain. He
underwent a bilateral L3– 4 lumbar facet joint
block and bilateral L4–5 lumbar facet joint block…
…
The undersigned notes that the claimant has been
formally diagnosed with obesity, and his medical
records show a repeated pattern of excessive weight
for his height... Therefore, the record supports a
diagnosis of obesity. The undersigned has evaluated
the claimant obesity and accompanying impairment in
accordance with Social Security Ruling 02-1p. This
ruling provides that the undersigned must assess
the effect that obesity has on the claimant’s
ability to perform routine movement and necessary
physical activity within the work environment.
Clearly, the claimant’s obesity affects his ability
to perform some of the physical requirements of
work, as it is likely that his obesity contributes
to his complaints of pain and high blood pressure.
However, there is no evidence that the claimant’s
obesity precludes him from performing work at the
light and sedentary levels of exertion, consistent
with the FCE, as these levels of work activity
would minimize the effect of the claimant’s obesity
on his joints and body systems…
(Id., at 15-18).
The ALJ articulated the weight he accorded to the opinions
of the various medical providers, and the reasons for so doing.
He explained:
…The functional capacity examination order by the
treating
physician,
Dr.
Stewart,
is
given
controlling weight… This FCE assessment is a
significantly
comprehensive
evaluation
of
the
claimants functional capacity and more reflective
of his actual functional capacity. The FCE is well
supported by acceptable clinical and laboratory
examination techniques and are not inconsistent
with other evidence in the record.

8

Greater weight is given to the treatment notes,
clinical findings, and diagnostic test contained
within the treating medical evidence of record,
particularly the records of Dr. Stewart and Dr.
Spruill…, orthopedics specialists. The treating
physicians examined the claimant on a regular and
ongoing basis; were familiar with his overall
history and complaints; monitored his condition.
The treating physicians work with the claimant,
prescribing
medications
and
adjusting
those
medications
as
needed
based
on
documented
radiographic and laboratory findings. Although the
treating physicians offer no express opinions, the
medical records and the notations contain therein
are consistent with my assessment that the claimant
has the residual functional capacity for at least
light works as described above.
The undersigned gives very little weight to the
residual functional capacity and pain assessment by
Dr. Timberlake... He is a family physician and a
general
practitioner
without
a
specialty
in
orthopedic surgery. Notably, Dr. Timberlake has
examined claimant only twice and then for the nonorthopedic purposes of sinus problems and elevated
hypertension. He did not have the benefit and
ongoing treating relationship like that of Dr.
Stewart and Dr. Spruill. Therefore, very limited
weight is given to his assessment and only to the
extent that he treated claimant’s hypertension.
The undersigned gives very little weight to the
opinion of the consultative examiner, Dr. Harris.
Although his findings are based upon direct
observation and examination of the claimant, his
opinions
as
to
functional
capacity,
are
inconsistent with his own clinical findings on
examination but more significantly his opinions are
not consistent with the treating medical evidence
or the abilities demonstrated by the claimant at
his functional capacity evaluation just one month
later... No weight is given to his conclusion that
the claimant cannot work as such opinions are
reserved to the Commissioner.
Some weight is given to the assessment of Dr.
Callins, the State agency reviewing
physician

9

[Exhibit 4F].
This
assessment was shortly after
the claimant’s initial
injury and while he was
under orders to be non-weight bearing. Dr. Collins
did not have access to later records or the FCE that
showed later improvement.
(Id., at 19).
Additionally,

in

determining

Plaintiff’s

RFC

assessment,

the ALJ found as follows:
After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform light work
as defined by 20 CFR 404.1567(b). Secondary to the
pelvic and spinal trauma with residual pain, the
claimant should have a seat/stand option; avoid
concentrated exposure to extremes of cold, heath,
humidity, and vibration. He can do no working from
unprotected heights or with hazardous machinery. He
can do occasional stooping, kneeling, crouching,
crawling, and occasional climbing the stairs and
ramps; but no climbing ladders, ropes, or scaffolds
and he can do the occasional bilateral lower
extremity
pedal
operation.
Secondary
to
situational
depression,
the
claimant
can
understand, remember and carry-out instructions
sufficient to perform low semi-skilled tasks; and
he can maintain concentration, persistence, and/or
pace for periods of up to two hours sufficient to
perform an 8-hour workday with routine breaks. He
can do low stress work defined as occasional
changes in the work setting; no production rate
pace work rather goal oriented work; and a well
spaced work environment or separate workstation…
(Id., at 14-15).
The ALJ then determined that Plaintiff is unable to perform
his past relevant work and utilizing the testimony of a VE,
concluded
experience,

that
and

based
RFC,

on
he

Plaintiff’s
can

10

age,

perform

the

education,

work

representative

occupations
cashier.

of

(Id.,

a
at

gate

guard,

20-21).

ticket
Thus,

taker,

the

ALJ

and

cafeteria

concluded

that

Plaintiff is not disabled. (Id., at 21).
IV.

Analysis
A. 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

review

decision

of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.2 Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990).

A court may not decide the facts anew,

reweigh the evidence, or substitute its judgment for that of the
Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.
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

preponderance”
reasonable

“more
and

person

conclusion.”).

In

than

a

consists

of

would

accept

determining

2

scintilla,
“such
as

but

relevant
adequate

whether

less

than

evidence
to

as

support

substantial

a
a
a

evidence

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).

11

exists, a court must view the record as a whole, taking into
account

evidence

favorable,

Commissioner’s decision.

as

well

as

unfavorable,

to

the

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).
B. Discussion
An individual who applies for Social Security disability
benefits

must

prove

his

or

her

disability,

and

the

Social

Security regulations provide a five-step sequential evaluation
process for determining if a claimant has proven his disability.3

3

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history. Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
12

20 C.F.R. §§ 404.1512, 404.1520, 416.912, 416.920.
In this case, Plaintiff has raised two issues on appeal:
(1) whether the ALJ may assign controlling weight to the FCE
conducted

by

a

physical

properly

discounted

therapist

and

opinions

of

the

(2)

whether

Plaintiff’s

the

ALJ

treating

physician and the consultative examiner. (Doc. 13 at 1).

These

issues are connected, and essentially challenge the evidentiary
support

for

the

address

each

ALJ’s

issue

RFC

as

it

assessment;
relates

to

thus,
whether

the

Court

the

ALJ’s

will
RFC

assessment is supported by substantial evidence.
In
factors,

evaluating
including

medical
the

opinions,

examining

the

ALJ

considers

relationship,

the

many

treatment

relationship, whether the opinion is amply supported, whether
the

opinion

is

specialization.

consistent
20

with

C.F.R.

the
§§

record

and

404.1527(d),

the

doctor’s

416.927(d).

Generally, the opinions of examining physicians are given more
weight
treating

that

non-examining

physicians

physicians.

See

id.

are
§§

physicians

given

more

and

weight

404.1527(d)(1)-(2),

the

opinions

of

than

non-treating

416.927(d)(1)-(2).

Indeed, “[t]he ALJ must generally give the opinion of a treating
physician ‘substantial or considerable weight’ absent a showing
of good cause not to do so.” Newton v. Astrue, 297 Fed. App’x
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

13

880, 883 (11th Cir. 2008); see also Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997)(a treating physician’s opinion must
be given substantial weight unless good cause is shown to the
contrary).
“[G]ood cause” exists when a treating physician’s opinion
is not bolstered by the evidence, is contrary to the evidence,
or when the treating physician’s opinion is inconsistent with
his or her own medical records.” Phillips v. Barnhart, 357 F.3d
1232, 1240-41 (11th Cir. 2004).

And, an ALJ commits reversible

error where he fails to articulate the reason for giving less
weight
v.Bowen,

to

the

786

opinion

F.2d

1050,

of

a

1053

treating
(llth

Cir.

physician.
1986);

MacGregor

Crawford

v.

Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (llth Cir. 2007) (per
curiam) (the ALJ must accord substantial or considerable weight
to opinion of treating physician unless “good cause” is shown to
the contrary.).

That said, it is the ALJ’s duty, as finder of

fact, to choose between conflicting evidence, and he may reject
the

opinion

of

any

physician

when

the

evidence

supports

a

finding to the contrary. Ellison v. Barnhart, 355 F.3d 1272,
1275-76

(11th

Cir.

2003)

(per

curiam)

(citing

Oldham

v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (holding that
“the ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion”); Kennedy v. Astrue,
2010 U.S. Dist. LEXIS 39492, *22-23, 2010 WL 1643248 (S.D. Ala.

14

Apr. 21, 2010) (“[I]t is the ALJ’s duty, as finder of fact, to
choose between conflicting evidence[,] and he may reject the
opinion

of any physician when the evidence supports a finding

to the contrary.”).
the

undersigned

Based upon a careful review of the record,

finds

that

substantial

evidence

supports

the

ALJ’s decision to assign little weight to the opinions of Dr.
Harris and Dr. Timberlake that Plaintiff is totally disabled.
The

record

reflects

that

Plaintiff

was

examined

by

Dr.

Harris on June 18, 2012, at the request of the Agency.

(Tr.

341).

post

At

surgery.

that

point,

Plaintiff

was

nearly

one-year

Dr. Harris conducted a physical examination and found

that Plaintiff walked with a markedly slow stooped gait, that
Plaintiff had range of motion in his neck, shoulders, elbows,
wrists

and

fingers,

although

he

reported

pain,

and

that

Plaintiff had muscle strength of 5/5 in his upper extremities.
In addition, Plaintiff had a decrease in range of motion in his
left hip, and a full range of motion in his right hip and in
both

of

his

knees

and

ankles.

Plaintiff

had

positive

leg

raising bilaterally, had some diffuse tenderness throughout his
midback, was unable to toe and heel walk, squat or arise, and
had 5/5 muscle strength in his lower extremities.
noted

that

Plaintiff

was

post-surgery

for

his

Dr. Harris

severe

pelvic

injuries, and that he was currently undergoing physical therapy.
Dr. Harris opined that Plaintiff is totally disabled and unable

15

to work. (Id.).

Dr. Harris also completed a Medical Source

Statement of Ability to Do Work-Related Activities (Physical)
form in which he concluded that Plaintiff could never lift or
carry up to 10 pounds, and that he could only sit, stand or walk
for five minutes at a time without interruption. (Id., at 334339).
The undersigned notes that Dr. Harris’ findings based on
his physical examination of Plaintiff are not consistent with
and do not support the extreme physical limitations contained in
the Medical Source Statement completed by Dr. Harris, nor his
opinion that Plaintiff is disabled.
in

Plaintiff’s

treatment

records

Further, there is nothing
that

physical limitations listed by Dr. Harris.

supports

the

extreme

In fact, Plaintiff’s

treating physician, Dr. Stewart, who had been treating Plaintiff
since June 2011, examined Plaintiff in both February and April
2012, and opined that Plaintiff was capable of returning to
sedentary

type

work.

(Tr.

330,

333).

Further,

the

record

reflects that an MRI taken on July 20, 2012 indicated some L4-5
bilateral facet hypertrophy and L5-S1 facet spurring, but no
disc protrusion or neural impingement and that x-rays indicated
normal verbal alignment and no fracture or subluxation.
light

of

this

record

evidence,

the

ALJ

had

good

cause

In
for

assigning very little weight to the extreme limitations listed
by Dr. Harris, or his opinion that Plaintiff is disabled and

16

unable to work.
The

same

holds

true

with

respect

opinion that Plaintiff is disabled.

to

Dr.

Timberlake’s

As noted by the ALJ, the

record reflects that Dr. Timberlake treated Plaintiff on two
occasions, namely March 19, 2012 and April 6, 2012, and then
only for sinus problems and elevated hypertension. (Tr. 19, 34249).

Dr. Timberlake’s treatment notes reflect that during each

visit,
while

Plaintiff
tenderness

was

seen

near

the

approximately
pelvis

and

fifteen

left

minutes,

sacrum

was

and

noted

during the April visit, no specific functional limitations are
noted in the treatment records. (Id., at 347-48).
while

Dr.

Timberlake

completed

a

medical

source

Further,
statement

(physical) in July 2012, wherein he opined that Plaintiff can
only lift/carry five (5) pounds occasionally, and that Plaintiff
can stand/walk one hour in an eight (8) hour day, and can sit
one hour in an eight (8) hour day, these severe limitations are
not

borne

out

by

Dr.

Timberlake’s

treatment

notes,

or

the

treatment notes from Plaintiff’s treating physicians; thus, the
ALJ had good cause for not giving Dr. Timberlake’s opinions
regarding Plaintiff’s functional limitations and his ability to
work controlling weight.
As
reliance

noted
on

constitutes

supra,
the

FCE

reversible

Plaintiff

also

completed
error

for

17

by

contends
the

several

that

physical
reasons.

the

ALJ’s

therapist
First,

Plaintiff argues that a physical therapist is not an “acceptable
medical source” pursuant to 20 C.F.R. § 404.1513, and that the
physical therapist performed the FCE based on the methodology of
the Guides to the Evaluation of Permanent Impairment 4th Edition,
which was replaced by the American Medical Association in 2003.
According to Plaintiff, the outdated edition specifically limits
its

usage

as

it

relates

to

determining

disability

and

the

updated version of the “Guides” unequivocally states that such
methodology should be used for determining “basic activities of
daily living, not including work”. (Doc. 14 at 6-7).

Plus, the

outdated version does not include the updated methodology for
assessments of the individual’s pain or medication side effects,
which the ALJ is required to consider and evaluate in disability
determinations.

Plaintiff further contends that the physical

therapist’s FCE provides only a “snapshot” of what Plaintiff can
do, not what he is capable of doing “on an ongoing basis for
eight

hours

a

day

five

days

a

week”,

and

the

ALJ

ignored

Plaintiff’s testimony that he was unable to get out of bed for
two days following the FCE. (Id.).
that

the

conducted

ALJ’s
by

assignment

the

physical

of

Thus, Plaintiff maintains

controlling

therapist

weight

constitutes

to

the

FCE

reversible

error.
The law is clear that “[a] physical therapist is not a
treating physician, and his or her opinion is not entitled to

18

automatic

and

great

deference,

under

the

Social

Security

regulations.” Aponte v. Commissioner Of Social Sec., 2009 U.S.
Dist. LEXIS 3497, *9, 2009 WL 129629 (M.D. Fla. Jan. 20, 2009)
(citing 20 C.F.R. § 404.1513;
App’x

957

(11th

Cir.

Freeman v. Barnhart, 220 Fed.

2007)).

However,

such

an

opinion

entitled to consideration as an “other source.” Id.

is

Opinions

from “other non-medical sources” such as physical therapists,
“who

are

not

technically

deemed

‘acceptable

medical

sources’...are important and should be evaluated on key issues
such as impairment severity and functional effects, along with
the other relevant evidence in the file.” SSR 06-03p.
In this case, the ALJ gave controlling weight to the FCE
assessment that was ordered by Dr. Stewart and was prepared by a
physical therapist.
assessment,

the

In assigning controlling weight to the FCE
ALJ

found

that

it

is

a

significantly

comprehensive evaluation, and is well supported by acceptable
clinical

and

inconsistent

laboratory
with

other

examination
evidence

techniques

in

the

and

record.

are

not

The

FCE

assessment reflects that Plaintiff was evaluated in the areas of
lifting, carrying, pushing, standing, walking, stair climbing,
bending,

repetitive

rotation,

grasping,

squatting,

overhead

pushing/pulling,

physical therapist concluded as follows:

19

etc.

reaching,
(Tr.

424).

trunk
The

Throughout the evaluation the patient did display
objective limitations with his ability to perform
material and non-material handling activities with
noted impairments with ambulation, strength and
endurance.
The
evaluee
was
observed
standing/walking for 20 minutes at a time before
having to sit down. The evaluee with the nonmaterial handling displayed poor functional ability
with most of the exercises performed. A Roofer per
the Dictionary of Occupational Titles (DOT) is
rated with a physical demand level of Medium. With
material handling, he demonstrated the ability to
work in the Medium DOT category, but displayed
increased signs of pain and decreased endurance. He
completed all of the material handling activities
to the point of objective physical weakness or
fatigue.
(Tr. 431).
Along

with

the

FCE

assessment,

the

physical

therapist

completed a written statement addressed to Dr. Stewart, wherein
the therapist opined that based on her evaluation, Plaintiff’s
lower

extremity

impairment

was

impairment
3%.

was

7%

Interestingly,

and
Dr.

his

whole

Stewart

person

signed

the

statement, and expressly noted that she agreed with the

“3%

whole person” impairment; however, she did not comment on the
lower

extremity

although

there

impairment
is

a

of

space

7%.
for

(Id.,
her

at

422).

signature

on

Further,
the

assessment Dr. Stewart did not sign the FCE assessment.

FCE
As a

result, there is nothing before the Court that reflects that Dr.
Stewart, Plaintiff’s primary treating doctor, agreed with the
functional limitations listed in the FCE assessment, let alone
the therapist’s opinion that Plaintiff could return to medium

20

work.
Dr. Stewart’s treatment records do however reflect that on
at least two occasions, she expressed the opinion that Plaintiff
was capable of performing sedentary work if his employer could
accommodate
reflects

him.

that

(Id.,

on

at

April

330,

20,

333).

2012,

Indeed,

Dr.

Stewart

the

record

opined

that

Plaintiff had reached MMI, and that he likely would continue to
have vague lower lumbar and sacral discomfort because of the
combination of a sacral fracture and his morbid obesity. (Id.,
at 330).

She also expressly stated that she would approve of

Plaintiff

receiving

work. (Id.).

retraining

for

a

more

sedentary

type

of

Further, as noted supra, when Dr. Harris conducted

the consultative examination of Plaintiff on June 18, 2012, he
observed that Plaintiff walked with a “markedly slow stooped
gait”, and that he has positive leg raisings, diffuse tenderness
throughout the mid back, decrease in range of motion of the left
hip, and an inability to toe and heal walk or squat and arise.
(Id., at 341).
The

undersigned

documented
Stewart’s

injuries,
treatment

finds
and

that

the

notes

in

medical

reflecting

light

of

Plaintiff’s

evidence,

including

that

would

she

Dr.

approve

sedentary type work for Plaintiff, the ALJ’s decision to give
controlling weight to the FCE prepared by the physical therapist
was

error.

Further,

the

ALJ’s

21

finding

that

Plaintiff

can

perform light work is also at odds with the medical evidence,
including

Dr.

Stewart’s

treatment

records

wherein

she

opines

that Plaintiff has reached MMI and is capable of performing
sedentary type work. (Id., at 330).

In his opinion, the ALJ

does not discuss nor seek to resolve this critical discrepancy
in the record; thus, this case is due to be reversed.
V.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period of disability and disability insurance benefits income be
REVERSED and REMANDED.
DONE this 25th day of August, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

22