Hawkins v. Colvin

Filing 20

Order re: 1 Complaint filed by Linda Hawkins - the decision of theCommissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED as set out. Signed by Magistrate Judge Sonja F. Bivins on 9/23/2015. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
LINDA HAWKINS,

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

CIVIL ACTION NO. 14-00371-B

ORDER
Plaintiff

Linda

Hawkins

(hereinafter

“Plaintiff”)

brings

this action seeking 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 May 14,

2015, the parties waived oral argument and consented to have the
undersigned

conduct

any

(Docs.

17).

Thus,

16,

and

all

the

proceedings

action

was

in

this

referred

case.

to

the

undersigned to conduct all proceedings and order the entry of
judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule
of

Civil

Procedure

73.

Upon

careful

consideration

of

the

administrative record and the memoranda of the parties, it is
hereby

ORDERED

AFFIRMED.

that

the

decision

of

the

Commissioner

be

I.

Procedural History
Plaintiff filed applications for a period of disability,

disability insurance benefits, and supplemental security income
on June 21, 2011.

(Tr. 142, 146).

Plaintiff alleges that she

has been disabled since May 1, 2010, due to gout, leg problems,
and

high

blood

applications
granted

an

pressure.

were

denied,

administrative

(Id.
and

at

179,

upon

hearing

183).

timely

Plaintiff’s
she

was

Administrative

before

request,

Law

Judge Ricky V. South (hereinafter “ALJ”) on October 30, 2012.
(Id. at 25).

Plaintiff attended the hearing with her counsel

and provided testimony related to her claims.
vocational

expert

(“VE”)

provided testimony.

also

appeared

(Id. at 60).

at

(Id. at 29).
the

hearing

A
and

On January 8, 2013, the ALJ

issued an unfavorable decision finding that Plaintiff is not
disabled.

(Id. at 21).

The Appeals Council denied Plaintiff’s

request for review on July 3, 2014.

(Id. at 1).

Thus, the

ALJ’s decision dated January 8, 2013 became the final decision
of the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

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).
2

II.

Issues on Appeal
A.

Whether the ALJ erred in rejecting the
opinion of consultative examiner, Dr.
Judy C. Travis, M.D.?

B.

Whether the ALJ erred
consider
obesity
as
disability?

in
a

failing
factor

to
of

III. Factual Background
Plaintiff was born on
years

of

age

at

October 30, 2012.

the

June 1, 1963, and was

time

of

her

(Tr. 25, 179).

administrative

forty-nine
hearing

on

Plaintiff testified that she

completed the twelfth grade in high school and studied physical
therapy at a junior college for two years.

(Id. at 48).

Plaintiff testified that she last worked in May 2010 as a
cook at a restaurant and that she stopped working after she
slipped and fell.
number

one

(Id. at 50-51).

problem

is

her

hips,

According to Plaintiff, her
and

as

a

result

of

her

arthritis, she is not able to stand for long periods of time.
(Id. at 38, 51).

Plaintiff estimated that she is unable to lift

more than a gallon of milk, cannot stand for more than thirty
minutes,

cannot

walk

and

sit

more

than

twenty

cannot bend, squat, kneel, balance, or climb.

minutes,

(Id. at 52-55).

Cold temperature and wetness bother her as well.
Plaintiff

has

a

walker,

administrative hearing.

but

she

did

(Id. at 59-60).

3

not

and

bring

(Id. at 56).
it

to

her

IV.

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

limited

determining

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).

1

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.
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
1

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

(S.D. Ala. June 14, 1999).
B.

Discussion

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

§§

regulations
process

determining if a claimant has proven his disability. 2
2

C.F.R.

for

20 C.F.R.

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
5

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since May 1,
2010,

her

alleged

onset

date,

and

that

she

impairments of spine disorder and arthritis.

has

the

severe

The ALJ further

found that her impairments of obesity, hypertension, allergic
rhinitis, and poor vision are non-severe.
addition,

the

ALJ

found

that

Plaintiff

(Tr. 14-15).
does

not

In

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.
The

ALJ

concluded

(Id.).

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform light work,
with

the

following

exceptions:

Plaintiff

is

able

to

bend,

balance, stoop, kneel, crouch, and crawl only occasionally; she
is unable to climb ladders, ropes, or scaffolds; she must avoid
concentrated exposure to extreme cold, heat, wetness, humidity,
fumes, odors, dust, and gases; she must avoid all exposure to
unprotected heights, dangerous machinery, and uneven surfaces;
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.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
6

and

she

is

restricted

to

unskilled

work

in

a

low

stress

environment, meaning only simple work-related decisions with few
workplace changes.

(Id. at 16).

while

medically

Plaintiff’s

reasonably

be

expected

to

The ALJ also determined that

determinable

produce

the

impairments

alleged

could

symptoms,

her

statements concerning the intensity, persistence and limiting
effects of the alleged symptoms were not credible to the extent
described.
Given
unable

to

(Id. at 17).
Plaintiff’s
perform

RFC,

her

the

past

ALJ

found

relevant

that

work.

Plaintiff
(Id.

at

is

20).

However, utilizing the testimony of a VE, the ALJ concluded that
considering Plaintiff’s residual functional capacity for a range
of

light

work,

experience,

as

there

well

are

as

other

her
jobs

age,

education

existing

in

the

and

work

national

economy that Plaintiff is able to perform, such as “production
assembler,” “electronics worker,” and “hand presser,” all light
and unskilled.

(Id. at 20).

Plaintiff is not disabled.

Thus, the ALJ concluded that

(Id. at 21).

In assessing the severity of Plaintiff’s impairments, the
ALJ made the following relevant findings:
3. The claimant has the following severe
impairments: disorder of the spine and
arthritis
(20
CFR
404.1520(c)
and
416.920(c)).
The claimant’s impairments of a disorder of
the spine and arthritis are severe because
7

they are more than slight abnormalities that
have more than a minimal effect on the
claimant’s ability to perform basic work
activities.
The evidence of record shows that the
claimant complained
of lower back pain and
hip pain (Exhibits 2F and 4F). On September
14, 2011, consultative
examiner Judy Cooke
Travis, M.D. noted that radiographic imaging
of the claimant’s lumbar spine and pelvis
showed moderate anterior spurring in the
lumbar
spine
and
severe
degenerative
arthritis in both hips with minimal joint
space and some erosion of the acetabulum
(Exhibit 2F). Dr. Travis gave diagnoses of
severe degenerative arthritis of both hips
and moderate degenerative arthritis of the
lumbar spine (Exhibit 2F).
The evidence of
record
shows
that
the
claimant’s
degenerative
arthritis
was
treated
conservatively with medication, such as
Naproxen, a nonsteroidal anti-inflammatory
drug (NSAID), Ultracet and Tramadol, nonnarcotic pain medications, and Lortab, a
narcotic pain medication (Exhibits 3F and
4F).
As
for
obesity,
hypertension,
allergic
rhinitis, and poor vision, I find that these
are
nonsevere
impairments
because
the
medical and other evidence establishes only
slight abnormalities or a combination of
slight abnormalities that would have no more
than a minimal effect on the claimant’s
ability to perform basic work activities.
The claimant testified that she weighed 270
pounds at the time of her hearing, but her
normal weight is around 165 pounds, as noted
on her identification
card.
The claimant
testified that her weight gain is from lying
in bed most of the time.
I considered
obesity in accordance with Social Security
Ruling 02-lp.
However, the evidence of
record shows obesity as long ago as March 7,
2006,
about
four
years
prior
to
the
8

claimant’s alleged onset date of disability
(Exhibit 1F).
Treatment notes of Holifield
Clinic, dated March 7, 2006, show that the
claimant weighed 222 pounds, but was in no
respiratory distress, despite complaints of
cough, congestion, fever, and chills and
mild rhonchi on physical examination, and
had no extremity abnormalities or edema
(Exhibit 1F).
Furthermore, the evidence of
record shows that the claimant was able to
perform
work
activity,
despite
obesity
(Exhibits 4D and 3E). . . .
(Id. at 14-16).
In addition, in assessing Plaintiff’s RFC, the ALJ made the
following relevant findings:
5.
After careful consideration of the
entire record, I find that the claimant has
the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except the claimant is able
to bend, balance, stoop, kneel, crouch, and
crawl occasionally.
The claimant is unable
to climb ladders, ropes, or scaffolds.
The
claimant must avoid concentrated exposure to
extreme
cold,
heat,
wetness,
humidity,
fumes, odors, dust, and gases. The claimant
must avoid all exposure to unprotected
heights, dangerous machinery, and uneven
surfaces.
The claimant is restricted to
unskilled work in a low stress environment,
meaning only simple work related decisions
with few workplace changes. . . .
The
claimant,
a
mother
of
seven
who
reportedly lives with three of her children,
ages seven, 13, and 17, testified that her
worst
problem
is
arthritis,
including
problems with her hips.
The claimant
alleges that she can hardly stand up.
The
claimant testified that she uses Goody P.M.
or
Ibuprofen
when
she
cannot
afford
medicine.
The claimant testified that she
has pain all through the day and night that
9

might calm down, but never goes away.
The
claimant testified that her pain is at a
level of eight on a scale of one to 10 with
medication and at a level of about seven
with medication.
The claimant testified
that she could lift or carry a gallon of
milk, stand for about 20 to 30 minutes, walk
for 20 minutes or so, and sit for about 20
minutes and needs to take several breaks
during the day. The claimant testified that
she is unable to kneel, squat, or climb
ladders, ropes, or scaffolds.
The claimant
testified that she does not wash dishes, do
laundry, vacuum, make beds, or take out
garbage.
The claimant testified that her
sons cook and shop for her, her 19 and 20year-old
children
are
around,
and
her
friends come around and help her.
The
claimant testified that she gets up at 2:00
a.m. or 3:00 a.m., sees her seven-year-old
and 13-year-old children off for school,
lies back down, gets up around noon, lies
back down in bed until 3:00 p.m., when her
children get out of school, and tries to
make sure everything is out to cook.
The
claimant testified that she eats supper at
about 5:00 p.m., helps her seven-year-old
child with homework, goes to bed at 8:00
p.m., and tosses and turns at night.
After careful consideration of the evidence,
I
finds
that
the
claimant’s
medically
determinable impairment could reasonably be
expected to cause the alleged symptoms;
however,
the
claimant’s
statements
concerning the intensity, persistence and
limiting effects of these symptoms are not
credible to the extent they are inconsistent
with the above residual functional capacity
assessment. . . .
Despite
the
claimant’s
allegations
of
disabling symptoms, the evidence of record
shows rather infrequent treatment, as well
as some significant gaps in treatment.
The
claimant testified that she worked at a
hunting camp a couple of years prior to her
10

hearing, where she cleaned doves for people
that hunted and cooked and cleaned for them.
The claimant testified that she could not
work there any longer because she was aching
so badly.
However, the evidence of record
contains one treatment note prior to the
claimant’s alleged onset date of disability
of May 1, 2010 (Exhibit 1F). This treatment
note, from Holifield Clinic, is dated March
7, 2006, more than four years prior to the
claimant’s alleged onset date of disability,
and shows complaints of cough, congestion,
fever, and chills (Exhibit 1F).
The next treatment note of record, which is
also from Holifield Clinic, is dated August
23, 2011, more than a year after the
claimant’s alleged onset date of disability
(Exhibit 3F).
This treatment note shows
that the claimant was seen by Gerald M.
Hodge,
M.D.
for
a
pap
and
breast
examination, requested refills on Lortab,
Metoprolol, and Na[pr]oxen, reported that
she was seeing Dr. Travis the following week
for leg pain, and was trying to get on
disability (Exhibit 3F).
Dr. Hodge noted
physical examination findings of lumbar
spine tenderness and spasm with radiation to
the right leg, but no abnormal lumbar spine
curvatures,
normal
tone,
and
normal
ambulation (Exhibit 3F).
The remaining three treatment notes of
record are from Whatley Health Services,
Inc. and are dated November 17, 2011,
February 9, 2012, and August 2, 2012
(Exhibit 4F).
These records show that the
claimant
was
given
an
assessment
of
degenerative joint disease, was prescribed
Ultracet or Tramadol, and reported feeling
better with Tramadol (Exhibit 4F). With the
exception
of
vital
findings,
physical
examination findings were noted only on
February 9, 2012 (Exhibit 4F).
These
physical examination findings included full
range of motion of the claimant’s joints,
within normal examination of the claimant’s
11

back, no motor deficit, and a normal gait
(Exhibit 4F).
On August 2, 2012, the
claimant complained
of lower back pain for
four months (Exhibit 4F).
However, no
physical examination findings related to the
claimant’s back are noted (Exhibit 4F).
On September 14, 2011, consultative examiner
Dr. Travis evaluated the claimant, diagnosed
the
claimant
with
severe
degenerative
arthritis
of
both
hips
and
moderate
degenerative arthritis of the lumbar spine,
and opined that the claimant cannot stand or
walk for more than 15 minutes at a time, and
for less than two hours in an eight-hour
shift, cannot climb, squat, or kneel but
rarely, and would be absent more than four
to five days a month due to pain (Exhibit
2F).
However, Dr. Travis noted that the
claimant admitted that the walker that she
presented
with was
“borrowed from a
friend,” and was not prescribed (Exhibit
2F). Dr. Travis noted that the claimant had
dorsolumbar spine range of motion of 80
degrees of flexion, 15 degrees of extension,
20 degrees of right and left lateral
flexion, and 20 degrees of right and left
lateral rotation, hip range of motion of 20
degrees of right and left abduction and
internal rotation, 10 degrees of right and
left adduction and extension, 30 degrees of
right and left external rotation, and 80
degrees of right flexion and 85 degrees of
left flexion, moderate muscle spasms in the
lumbar spine, poor heel or toe walking, and
painful
and
difficult
squatting
with
assistance (Exhibit 2F).
However, Travis
also noted that the claimant had no hospital
visits or admissions due to complaints
relative to her disability applications,
normal appearance of her lower extremities
with grade two reflexes and no muscle
atrophy, normal cervical and thoracic spine
range of motion, tentative but unassisted
gait with a borrowed walker, no ataxia or
spasticity,
fair
tandem
walk,
normal
sensation to sharp, light touch, vibration,
12

and proprioception, five out of five motor
strength in all extremities, and negative
Romberg testing (Exhibit 2F).
Dr. Travis
noted
that
anterior
view
included
the
claimant’s pelvis and showed very severe
arthritis of both hips, “which explains all
the pain,” but also noted that radiographic
imaging showed lumbar arthritis, “but not
enough to explain her complaints” (Exhibit
2F).
Furthermore, in her Disability Report-Adult,
the claimant reported that she stopped
working on May 1, 2011, “[b]ecause of other
reasons.”
The claimant reported, “I got
fired” (Exhibit 2E).
As for the opinion evidence, . . . I give
little weight to the opinion of consultative
examiner
Dr.
Travis,
discussed
herein
(Exhibit 2F).
I find that the totality of
the evidence, such as Dr. Hodge’s August 23,
2011 treatment notes showing normal tone and
normal ambulation, despite lumbar spine
tenderness and spasm with radiation to the
claimant’s right leg, February 9, 2012
treatment notes of Whatley Health Services
showing that the claimant reported feeling
better with Tramadol and had a normal gait,
no
motor
deficit,
within
normal
back
examination, and full joint range of motion,
and Dr. Travis’s own physical examination
findings of no muscle atrophy of the
claimant’s
lower
extremities,
normal
sensation, and five out of five strength in
all extremities, does not support the degree
of
limitations
opined
by
Dr.
Travis
(Exhibits 2F, 3F, and 4F).
In
sum,
the
above
residual
functional
capacity assessment is supported by the
claimant’s credible symptoms of pain, the
claimant’s testimony that cold bothers her
and she can tell when it is going to rain,
and
the
medical
evidence
of
record,
including
radiographic
imaging
of
the
claimant’s hips and lumbar spine, discussed
13

herein,
Dr.
Hodge’s
August
23,
2011
treatment notes showing normal tone and
normal ambulation, despite lumbar spine
tenderness and spasm with radiation to the
claimant’s right leg, the February 9, 2012
treatment notes of Whatley Health Services
showing that the claimant reported feeling
better with Tramadol and had a normal gait,
no
motor
deficit,
within
normal
back
examination, and full joint range of motion,
and consultative
examiner
Dr. Travis’s
physical examination finding of no muscle
atrophy of the claimant’s lower extremities.
In addition, I considered the claimant’s
credible symptoms of pain and prescribed
medication for pain in restricting her to
unskilled work in a low stress environment,
meaning only simple work related decisions
with few workplace changes.
(Id. at 16-19).

The Court now considers the foregoing in light

of the record in this case and the issue on appeal.
1.

Issues
A. Whether the ALJ erred in evaluating
the opinions of consultative examiner,
Dr. Judy C. Travis, M.D.?

Plaintiff

argues

that

the

ALJ

erred

in

rejecting

the

opinions of consultative examiner, Dr. Judy C. Travis, M.D.,
regarding

the

severity

of

her

arthritis.

(Doc.

11

at

3).

Specifically, Plaintiff argues that the ALJ erred in rejecting
Dr. Travis’s opinions that Plaintiff has significant functional
limitations due to severe arthritis in her hips that would cause
her to miss work approximately four to five days a week and
would

essentially

Commissioner

preclude

counters

that

her

from

the

ALJ

14

working.
properly

(Id.).
discredited

The
Dr.

Travis’

opinions

evidence

of

examination

given

record,
findings.

their

inconsistency

including
(Doc.

some

4

at

8).

of

with
Dr.

the

medical

Travis’

Having

own

reviewed

the

record at length, the Court finds that Plaintiff’s claims are
without merit.
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 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.
Supp.

2d

1323,

1331 (S.D.

Ala.

See Beech v. Apfel, 100 F.
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).
determined
claimant

the

bears

Plaintiff’s

residual

the

of

burden

Once the ALJ has

functional

demonstrating

capacity,

that

decision is not supported by substantial evidence.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).

the

the

ALJ’s

See Flynn v.
Plaintiff has

failed to meet her burden in this case.
As

previously

stated,

the

ALJ

concluded

that,

although

Plaintiff has the severe impairments of disorder of the spine
and arthritis, she is not disabled. (Tr. 14).
15

The ALJ further

concluded

that

Plaintiff’s

obesity,

hypertension,

rhinitis, and poor vision are non-severe. 3
making
medical

these

determinations,

records

from

her

the

ALJ

treating

allergic

(Id. at 15).

relied

upon

physicians,

Dr.

In

Plaintiff’s
Gerald

M.

Hodge, M.D., and Dr. Gerald Sibanda, M.D., and the Plaintiff’s
testimony.

(Id. at 18).

To support her claim on appeal that

her arthritis is disabling, Plaintiff argues that the ALJ erred
in discrediting the opinions of consultative examiner Dr. Judy
Travis, M.D., that she cannot stand or walk more than fifteen
minutes at a time and more than two hours total in an eight-hour
work day and that she would be absent from work four to five
days a month because of pain.4

(Doc. 11 at 5; Tr. 230).

Weighing the opinions and findings of treating, examining,
and non-examining physicians is an important part of steps four
and five of the disability determination process.

In reaching a

decision, the ALJ must specify the weight given to different
medical opinions and the reasons for doing so.

See Winschel v.

3

Plaintiff does not challenge the ALJ’s findings related to her
hypertension, poor vision, and allergic rhinitis.
Rather,
Plaintiff’s appeal focuses on the ALJ’s findings with respect to
her arthritis and obesity as it affects her arthritis. (Doc. 11
at 7-8). Therefore, the Court’s discussion is limited to those
impairments.

4

The ALJ gave Dr. Travis’ opinions “little weight,” finding that
the “totality of the evidence” (to include the medical records
of Plaintiff’s treating physicians, Dr. Hodge and Dr. Sibanda)
did “not support the degree of limitations opined by Dr.
Travis.” (Tr. 19).
16

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
ALJ

weighing

the

opinion

of

a

treating

physician,

the

must give the opinions “substantial weight,” unless good

cause exists for not doing so.

Costigan v. Commissioner, Soc.

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4
(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).

The opinion of “a

one-time examining physician — or psychologist,” on the other
hand,

is

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), and an ALJ must have good cause to credit an
examining consulting physician’s opinion over that of a treating
physician.

See Adamo v. Commissioner of Soc. Sec., 365 F. Appx.

209, 213 (11th Cir. 2010).
opinion

of

a

non-examining

Furthermore, absent good cause, the
physician

is

entitled

to

little

weight if it is contrary to either the treating or examining
physician’s findings.

See Lamb v. Bowen, 847 F.2d 698, 703

(11th Cir. 1988); Broughton v. Heckler, 776 F.2d at 962.
The

foregoing

notwithstanding,
17

good

cause

exists

to

discredit

the

testimony

of

any

medical

source

when

contrary to or unsupported by the evidence of record.
v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004).

it

is

Phillips

“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

[treating,

“free

to

examining,

reject
or

the

opinion

non-examining]

of

any

when

the

physician
evidence

supports a contrary conclusion.” Sryock v. Heckler, 764 F.2d
834,

835

(11th

Cir.

1985)

(per

curiam)

(citation

omitted);

Adamo, 365 Fed. Appx. at 212 (The ALJ may reject any medical
opinion if the evidence supports a contrary finding.).
The record shows that Dr. Travis performed a consultative
examination at the request of the Agency on September 14, 2011.
(Id. at 229).
hypertension
(Id.).

On that date, Plaintiff’s chief complaint was
and

“low

back

pain

radiating

down

both

legs.”

Dr. Travis’ examination findings reflect that although

Plaintiff is obese, her upper extremities appeared normal, with
normal

reflexes

and

normal

range

of

motion

and

no

muscular

atrophy, that her grip was five out of five bilaterally, and
that she had normal dexterity in both hands.

(Id. at 230).

Plaintiff’s lower extremities likewise had normal appearance,
with no muscle atrophy and normal reflexes, although Plaintiff
18

did

have

decreased

Plaintiff’s

back

range

and

of

spine

motion

had

in

normal

her

hips.

curvature,

(Id.).

and

normal

range of motion in the cervical and thoracic spine, although she
did have moderate

muscle spasms in the lumbar spine. (Id.).

Plaintiff’s gait was tentative but unassisted, with no ataxia or
spasticity.

(Id.).

Plaintiff’s squat was painful, and her heel

toe walk was poor, although her tandem walk was fair. (Id.).
Plaintiff’s neurological examination was completely normal, with
five

out

of

five

negative Romberg.

motor

strength

(Id.).

had no hospital visits

in

all

extremities

and

a

Dr. Travis also noted that Plaintiff
or admissions related to the medical

conditions for which she sought disability.

(Id. at 229).

X-

rays of Plaintiff’s lumbar spine showed moderate degenerative
arthritis.

(Id. at 230).

X-rays of Plaintiff’s hips showed

severe degenerative arthritis of both hips. (Id.).

Based on

her examination and x-rays, Dr. Travis opined that the arthritis
in Plaintiff’s lumbar spine was not severe enough to explain her
complaints, but that the arthritis in her hips was severe enough
to explain her pain and that Plaintiff could not stand or walk
for more than fifteen minutes at a time and for less than a two
hours in an eight-hour work day.

(Id.).

Dr. Travis further

opined

four

five

because

that
of

Plaintiff
her

hip

would

pain.

miss
(Id.).

19

As

to

the

ALJ

days

a

month

found,

these

opinions

are

inconsistent

with

the

medical

evidence

from

Plaintiff’s treating physicians in this case.
The record shows that, on August 23, 2011,

three weeks

prior to Plaintiff’s consultative examination with Dr. Travis,
Plaintiff visited her treating physician, Dr. Gerald M. Hodge,
M.D., at the Holifield Clinic for a gynecological examination.
(Id.

at

235).

This

visit

was

more

than

one

year

after

Plaintiff’s alleged onset date of May 1, 2010, and appears to be
the first time that Plaintiff sought medical treatment for any
condition following her alleged onset date.

At the August 23,

2011 appointment with Dr. Hodge, Plaintiff reported that she was
“trying to get on disability” and would be seeing consultative
examiner, Dr. Travis, the following week for her leg pain.
at 235).

(Id.

Plaintiff reported that she was experiencing muscle

pain and requested refills of her high blood pressure and pain
medications.

(Id.).

Dr. Hodge examined Plaintiff and noted

some lumbar spine tenderness and spasm, with radiation to right
leg, but no abnormal curvatures, no swelling in the extremities,
normal neurologic tone, and normal ambulation/gait.

(Id. at

236).
Three months later, on November 17, 2011, Plaintiff saw Dr.
Gerald Sibanda, M.D., at Whatley Health Services for a check up,
at which time Dr. Sibanda diagnosed Plaintiff with degenerative
joint disease and hypertension and refilled Plaintiff’s pain and
20

high

blood

pressure

medications.

(Id.

at

243).

Plaintiff

returned to Dr. Sibanda three months later, on February 9, 2012,
and

reported

“feeling

that

better

she

with

was

experiencing

Tramadol.”

(Id.

low

at

back

242).

pain
A

but

physical

examination at that time revealed normal back, normal joints
with full range of motion, normal gait, no motor deficits, and
no swelling in her extremities.

(Id.).

Dr. Sibanda refilled

Plaintiff’s medications and instructed her to return in three
months.

(Id.).

Plaintiff’s

final

treatment

note

is

dated

August 2, 2012, on which date she reported to Dr. Sibanda that
she was experiencing low back pain, numbness in her left hand,
nausea, dizziness, wheezing, and itching.

(Id. at 241).

Sibanda

degenerative

again

disorder

diagnosed

and

Plaintiff

hypertension,

with

refilled

her

ordered her to return in four months.

Dr.
joint

prescriptions,

(Id. at 241).

and

This is

the final treatment note.
While there is no question in this case

that Plaintiff

suffers from severe arthritis in her hips, her treatment records
reflect

very

conservative

recommendations
hospitalization
condition.

of

treatment

physical

admissions

or

with

therapy
visits

pain

or

medication,

surgery,

related

to

this

and

no
no

medical

Moreover, none of Plaintiff’s treating physicians

has ever indicated that her arthritis, or any of her medical
conditions,

is

disabling

in

nature.
21

To

the

contrary,

as

discussed above, Dr. Sibanda noted upon examination on February
9, 2012, that Plaintiff had normal joints with full range of
motion,

normal

gait,

no

motor

deficits,

no

swelling

of

her

extremities, and that his examination of her back was within the
normal range.

(Id. at 242).

As the ALJ found, Plaintiff’s

treatment records reflect significant normal findings from both
of

her

treating

physicians

relative

to

her

back,

her

upper

extremities, and her lower extremities (id. at 236, 242), which
findings are inconsistent with the severity of limitations found
by Dr. Travis.

In fact, Dr. Travis’ opinions are inconsistent

with her own examination findings that Plaintiff had no abnormal
curvatures of the back, no swelling in her extremities, normal
neurologic tone, and normal ambulation and gait.

(Id. at 236).

Given the inconsistencies between Dr. Travis’ opinions and
the contemporaneous treatment records from Plaintiff’s treating
physicians,

Drs.

Hodge

and

Sibanda,

as

well

as

the

inconsistences within Dr. Travis’ own findings, the ALJ had good
cause

to

Travis.

discredit

the

extreme

limitations

offered

by

Dr.

Moreover, having reviewed the record at length, the

Court finds that the substantial medical evidence in this case,
particularly

the

medical

evidence

from

Plaintiff’s

treating

physicians Dr. Hodge and Dr. Sibanda, supports the ALJ’s finding
that

Plaintiff

can

perform

a

range

22

of

light

work,

with

the

restrictions set forth by the ALJ.

Therefore, Plaintiff’s claim

is without merit.
B.

Whether the ALJ erred
consider
obesity
as
disability?

Plaintiff next argues that

in
a

failing
factor

to
of

the ALJ erred in failing to

consider obesity as a factor in her disability determination.
(Doc. 11 at 6).

Specifically, Plaintiff argues that the ALJ

erred in finding that her obesity was non-severe and in failing
to discuss obesity in relation to her RFC assessment.

(Id. at

6-8).

address

The

Commissioner

argues

that

the

ALJ

did

Plaintiff’s obesity in his decision, found it to be non-severe,
and found that none of

Plaintiff’s impairments, alone or in

combination, rendered her disabled.

(Doc. 14 at 9-10).

The

Commissioner further argues that any alleged error is harmless
because

the

ALJ

expressly

considered

Plaintiff’s

obesity

pursuant to SSR 02-lp at step two of the evaluation process, and
he accounted for her obesity in his RFC when he restricted her
to

light

work,

with

only

occasional

postural

activities,

no

climbing of ladders, ropes, or scaffolds, and no exposure to
extreme heat or hazards.

(Id.; Tr. 16).

The Court finds that

Plaintiff’s claim is without merit.
Social Security Ruling 02–1p guides courts in evaluating
disability claims brought by a claimant with obesity, providing
that an ALJ will consider a claimant’s obesity at every step of
23

the sequential evaluation process.
LEXIS 1, 2002 WL 34686281.

See SSR 02–1p, 2002 SSR

The Ruling states that “the combined

effects of obesity with other impairments can be greater than
the effects of each of the impairments considered separately”
and

directs

the

ALJ

to

“find

that

obesity

is

a

‘severe’

impairment when, alone or in combination with another medically
determinable physical or mental impairment(s), it significantly
limits an individuals physical or mental ability to do basic
work activities.”
or

BMI

that

Id.

“There is no specific level of weight

equates

with

a

‘severe’

or

a

‘not

severe’

impairment,” nor do “descriptive terms for levels of obesity
(e.g.,
whether

‘severe,’
obesity

‘extreme,’
is

or

is

disability program purposes.”

or
not
Id.

‘morbid’
a

obesity)

‘severe’

establish

impairment

for

Rather, the Agency “will do

an individualized assessment of the impact of obesity on an
individual’s functioning when deciding whether the impairment is
severe.”

Id.

The Ruling recognizes that “someone with obesity

and arthritis affecting a weight-bearing joint may have more
pain and limitation than might be expected from the arthritis
alone.”

Id.

In such cases, “[a]n assessment should . . .

be

made of the effect obesity has upon the individual’s ability to
perform routine movement and necessary physical activity within
the work environment.”

Id.

In this case, the record shows that the ALJ performed an
24

individualized assessment of the effect of Plaintiff’s obesity
on

her

ability

to

perform

routine

movement

physical activities within the work environment.5

and

necessary

At step two of

the sequential evaluation process, the ALJ stated:
As for obesity, . . . I find that [this is
a]
nonsevere
impairment[]
because
the
medical and other evidence establishes only
slight abnormalities or a combination of
slight abnormalities that would have no more
than a minimal effect on the claimant’s
ability to perform basic work activities.
The claimant testified that she weighed 270
pounds at the time of her hearing, but her
normal weight is around 165 pounds, as noted
on her identification
card.
The claimant
testified that her weight gain is from lying
in bed most of the time.
I considered
obesity in accordance with Social Security
Ruling 02-lp.
However, the evidence of
record shows obesity as long ago as March 7,
2006,
about
four
years
prior
to
the
claimant’s alleged onset date of disability
(Exhibit 1F).
Treatment notes of Holifield
Clinic, dated March 7, 2006, show that the
claimant weighed 222 pounds, but was in no
respiratory distress, despite complaints of
cough, congestion, fever, and chills and
mild rhonchi on physical examination, and
had no extremity abnormalities or edema
(Exhibit 1F).
Furthermore, the evidence of
record shows that the claimant was able to
perform
work
activity,
despite
obesity
(Exhibits 4D and 3E). . . .

5

Using Dr. Travis’ height and weight measurements (height 5’7”
and weight 255 lbs.), Plaintiff’s BMI is 39.9, which is
considered obese.
See http://www.nhlbi.nih.gov/health/educatio
nal/lose_wt/BMI/bmicalc.htm.
A BMI of 40 or greater is
considered extremely obese. See http://www.nhlbi.nih.gov/health
/educational/lose_wt/BMI/bmi_dis.htm.
25

(Id. at 14-16) (emphasis added).
Thus, the ALJ clearly evaluated Plaintiff’s obesity at step
two of the analysis, discussing SSR 02-1p in light of the normal
examination findings of Plaintiff’s treating physician, and the
fact that Plaintiff had performed work activity for years with
obesity.

(Id. 15).

Also, in his RFC assessment (and at step

two), the ALJ found it compelling that, after her alleged onset
date, both of her treating physicians found no swelling in her
extremities, “normal ambulation,” “normal gait,” “normal tone”
“full joint range of motion,” “no motor deficit,” and normal
back examination, despite her weight.
242).

(Id. at 15, 18-19, 236,

Although the ALJ did not reiterate his findings regarding

Plaintiff’s obesity, he made it clear that he had “considered
all [of Plaintiff’s] symptoms,” as well as the “totality of the
evidence.”

(Id. at 19).

Having reviewed the evidence at length, the Court concludes
that the ALJ’s findings, including his specific reference to SSR
02-1p,

sufficiently

demonstrate

that

he

properly

considered

Plaintiff’s obesity and its effect on her other impairments at
all steps of the evaluation process.

It is the Plaintiff who

bears the burden of proving her disability in this case.

See 20

C.F.R. 404.1512 (“In general, you have to prove to us that you
are . . . disabled.).
erred

in

finding

her

Despite Plaintiff’s argument that the ALJ
obesity

non-severe
26

and

in

failing

to

expressly discuss her obesity in his RFC assessment, Plaintiff
has

failed

to

show

that

her

obesity

has

in

fact

caused

limitations to her exertional and postural functions in excess
of

her

contrary.

RFC.

Indeed,

the

substantial

evidence

shows

the

Cf. Bailey v. Colvin, 2014 U.S. Dist. LEXIS 152816,

*12, 2014 WL 5488401, *5 (N.D. Ala. Oct. 29, 2014) (finding that
the ALJ did not err in failing to discuss claimant’s obesity in
his RFC assessment where he evaluated the claimant’s obesity in
light of SSR 02–1p and found it to be a non-severe, and the
claimant failed show that his obesity had caused limitations to
his exertional and postural functions that would preclude work
at the light exertional level).

Thus, Plaintiff’s claim is

without merit.6
V.

Conclusion

6

Even if the Court were to assume error in the ALJ’s finding
that Plaintiff’s obesity was non-severe and in failing to
discuss
Plaintiff’s
obesity
in
connection
with
the
RFC
assessment, the Court finds that those errors are harmless.
Harmless errors are those that do not prejudice the plaintiff
and would not change the disability determination.
Battle v.
Astrue, 243 Fed. Appx. 514, 522 (11th Cir. 2007) (unpublished)
(citing Diorio v. Heckler, 721 F. 2d 726, 728 (11th Cir. 1983));
see also Ware v. Schweiker, 651 F. 2d 408, 412 (5th Cir. 1981)
(remand would be a “wasteful corrective exercise” when “no
further findings could be made that would alter the ALJ’s
determination” given the record as a whole).
In this case,
Plaintiff has failed to show that her obesity has caused
limitations to her exertional and postural functions that would
preclude her from performing light work with the restrictions
set by the ALJ.
To the contrary, the substantial evidence
supports the ALJ’s decision that she can perform such work.
Thus, any such alleged errors are harmless.
27

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 23rd day of September, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

28