Square v. Colvin

Filing 21

Order that the decision of the Commissioner of Social Security denying plaintiff's claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/25/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ALFREDA SQUARE,

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

CIVIL ACTION NO. 15-00037-B

ORDER
Plaintiff
judicial
Social

Alfreda

review

Security

of

a

Square
final

denying

her

(hereinafter
decision
claim

of

for

“Plaintiff”)
the

seeks

Commissioner

supplemental

of

security

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

On October 12, 2015, the parties consented to

have the undersigned conduct any and all proceedings in this
case.

(Doc.

18).

Thus,

the

action

was

referred

to

the

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

Civil

Procedure

73.

Upon

careful

consideration

of

the

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

ORDERED

that

the

decision

of

the

Commissioner

be

AFFIRMED.
I.

Procedural History
Plaintiff filed her application for benefits on August 1,

2011.

(Tr. 55).

Plaintiff alleged that she has been disabled

since October 30, 2009, due to “back problems” and “left knee
problems.”

(Id. at 115, 143).

Plaintiff’s
request,

she

Administrative

applications

was
Law

were

granted

an

Judge

Paul

“ALJ”) on March 21, 2013.

denied

and

administrative
Whitson

upon

timely

hearing

before

Johnson

(Id. at 31).

(hereinafter

Plaintiff attended the

hearing with her counsel and provided testimony related to her
claims.

(Id. at 33).

A vocational expert (“VE”) also appeared

at the hearing and provided testimony.

(Id. at 44).

On June

17, 2013, the ALJ issued an unfavorable decision finding that
Plaintiff is not disabled.

(Id. at 27).

The Appeals Council

denied Plaintiff’s request for review on December 7, 2014.
at 1-2).

(Id.

Therefore, the ALJ’s decision dated June 17, 2013,

became the final decision of the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

waived oral argument on October 12, 2015 (Doc. 17), and agree
that this case is now ripe for judicial review and is properly
before

this

Court

pursuant

to

1383(c)(3).

2

42

U.S.C.

§§

405(g)

and

II.

Issues on Appeal
1. Whether the ALJ erred in rejecting the
opinions
of
Plaintiff’s
treating
physician, Dr. Timothy A. Holt, M.D.?
2.

Whether the ALJ’s RFC assessment
supported by substantial evidence?

is

3.

Whether the Appeals Council erred in
failing to properly consider Plaintiff’s
updated treatment records?

III. Factual Background
Plaintiff was born on

June 1, 1967, and was

forty-five

years of age at the time of her administrative hearing on March
21, 2013.

(Tr. 31, 44, 115).

Plaintiff graduated from high

school in 1985 and last worked from May 2008 to June 2009 for a
cap manufacturing company sewing baseball caps.
44, 155).

(Id. at 38-39,

Her only other past work was as a cashier in a

convenience store from June 2006 to April 2008.1

(Id. at 155).

At her hearing, Plaintiff testified that she has pain in
her lower back that is a seven to nine on a ten-point pain
scale.

(Id. at 40-41).

According to Plaintiff, she cannot bend

over and tie her shoes; she cannot pick up a gallon of milk;

1

The ALJ determined that none of Plaintiff’s past work was
consistent enough to constitute substantial gainful activity.
(Tr. 25).

3

she cannot sweep, mop, or clean;2 and she cannot drive because of
her pain.

(Id. at 41-42).

Plaintiff also testified that she

takes her pain medication, Tramadol, every day, and it makes her
drowsy, causing her to have to lie down for about four hours a
day. 3

(Id. at 42, 47).

Plaintiff testified that she does not

expect to have any further surgeries on her back, nor does she
expect to have any surgery at all on her neck.
testified

that

she

dominant right hand.

also

has

trouble

with

the

(Id.).
grip

in

She
her

(Id. at 43).

Plaintiff reported to the Agency that she lives with her
family

and

that

her

routine

consists

of

getting

up

in

the

morning, taking a bath, combing her hair, fixing her breakfast,
taking a short walk, watching television, fixing lunch, walking
over to her dad or sister’s house, going to the store, going to
see her aunts, going outside, waiting for her nieces and nephews
to get off of the bus, going inside, taking a bath, and getting
ready for bed.

(Id. at 165).

Plaintiff reported that she has

no problems with personal care, including bathing and combing
her hair. 4

(Id. at 166).

Plaintiff stated that she needs no

2

In her Report to the Agency, Plaintiff stated that she can
sweep and mop “a little.” (Tr. 167).

3

Plaintiff testified that Tramadol is the only medication that
she takes every day. (Tr. 47).

4

At her hearing, Plaintiff testified that her daughters have to
help her with the housework, with combing her hair, and with
4

reminders to take care of her personal needs or to take her
medicine.

(Id. at 167).

According to Plaintiff, she prepares

her own simple meals daily.
and can wash clothes.
(Id.

at

168).

She

(Id.).

(Id.).

She can iron sitting down

She can handle her own finances.

socializes

with

family,

goes

to

regularly, and does not need anyone to accompany her.
169).
a

church
(Id. at

Plaintiff reported that she can walk about one quarter of

mile.

(Id. at

ambulate.

170).

She

(Id. at 171).

needs

no

assistive

devices

to

In addition, she can follow written

and spoken instructions “good,” but has trouble finishing what
she

starts.

(Id.).

She

gets

along

“well”

with

authority

figures and has never been fired from a job because of problems
getting along with people.
IV.

(Id.).

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
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).
getting out of the bath tub.

5

Martin v. Sullivan, 894 F.2d

A court may not decide the facts
(Tr. 41, 43-44).

5

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).
5

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
(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.

§§

423(d)(1)(A);

6

see

also

20

C.F.R.

§§

404.1505(a),

416.905(a).

provide

five-step

a

The

Social

sequential

Security

evaluation

regulations
process

determining if a claimant has proven his disability. 6

for

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since August 1,
2011,

the

application

date,

and

that

she

has

the

severe

impairments of cervical and lumbar disc disease and status post
lumbar fusion.

(Tr. 22).

The ALJ further found that Plaintiff

6

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.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

7

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.
The

ALJ

concluded

that

Plaintiff

retains

the

(Id.).
residual

functional capacity (hereinafter “RFC”) to perform a range of
light

work,

balance,

except

stoop,

that

kneel,

Plaintiff

and

“can

crouch.

occasionally

In

addition,

climb,

she

can

frequently, rather than constantly, finger with the right hand.
She

must

avoid

vibration.”

concentrated

(Id. at 23).

exposure

to

extreme

cold

and

The ALJ also determined that while

Plaintiff’s medically determinable impairments could reasonably
be

expected

to

produce

the

alleged

symptoms,

her

statements

concerning the intensity, persistence and limiting effects of
the

alleged

symptoms

were

only

reasons explained in the decision.

partially

credible

for

the

(Id.).

The ALJ found that Plaintiff has no past relevant work.
(Id. at 26).
concluded
capacity

However, utilizing the testimony of a VE, the ALJ

that
for

a

considering
range

of

Plaintiff’s

light

work,

residual
as

well

functional

as

her

age,

education and work experience, there are jobs existing in the
national economy that Plaintiff is able to perform, such as
“nonpostal mail clerk,” “assembler,” and “wire worker,” all of
which are classified as light and unskilled.

(Id. at 26, 46).

Thus, the ALJ concluded that Plaintiff is not disabled.

8

(Id. at

27).
The

Court

now

considers

the

foregoing

in

light

of

the

record in this case and the issues on appeal.
1.

Issues

A. Whether the ALJ erred in rejecting the
opinions
of
Plaintiff’s
treating
physician, Dr. Timothy A. Holt, M.D.?
In

this

case,

Plaintiff

argues

that

the

ALJ

erred

in

rejecting the opinions of her treating physician/surgeon, Dr.
Timothy A. Holt, M.D., set forth in a Medical Source Statement
(“MSS”) and a Clinical Assessment of Pain (“CAP”) form completed
on February 21, 2013.

In those forms, Dr. Holt opined that

Plaintiff is unable to maintain gainful employment as a result
of her pain.

(Doc. 12 at 1-4; Tr. 342-43).

The Commissioner

counters that the medical evidence does not support Dr. Holt’s
opinions, and, to the contrary, that Dr.
inconsistent

with

the

substantial

thus, were properly discredited.

Holt’s opinions are

evidence

in

the

case

(Doc. 15 at 7-11).

and,

Having

carefully reviewed the record in this case, the Court agrees
that Plaintiff’s claim is without merit.
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.

9

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
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

physician.

entitled

to

the

same

deference

as

a

treating

Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,

2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160).

An ALJ is also “required to consider the

opinions of non-examining state agency medical and psychological
consultants because they ‘are highly qualified physicians and
psychologists who are also experts in Social Security disability
evaluation.’”
(11th

Cir.

Milner v. Barnhart,
2008)

404.1527(f)(2)(i)).
examining

sources

examining sources.”

275 Fed. Appx. 947, 948

(unpublished)
“The

when

ALJ

they

may
do

(citing
rely

not

on

20

C.F.R.

opinions

conflict

with

of

§
non-

those

of

Id. (citing Edwards v. Sullivan, 937 F.2d

10

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

the

to

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)

Sryock v. Heckler,

(per

curiam)

(citation

omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,

212

(11th

Cir.

2010)

(The

ALJ

may

reject

any

medical

opinion if the evidence supports a contrary finding.).
In the present case, the record shows that Plaintiff was
treated by Dr. Timothy Holt, M.D., from approximately June 2009
to February 2013, for back problems arising out of an automobile
accident that occurred in May 2009.

(Tr. 198-99, 214).

On June

11, 2009, Plaintiff presented to Dr. Holt with complaints of low
back

pain,

neck

pain,

and

arm

pain.

(Id.

at

221).

Upon

examination, Plaintiff’s range of motion was markedly limited,
and a CT scan revealed a fracture at the thoracolumbar junction,

11

T-12.

(Id. at 221-22).

An MRI taken of Plaintiff’s lumbar

spine in June 2009 confirmed a “[r]ecent compression fracture of
D12 with mild loss of anterior height,” but otherwise the lumbar
spine was unremarkable.

(Id. at 228, 246).

cervical spine was normal.

An MRI of the

(Id. at 227, 245).

On July 9, 2009,

Dr. Holt scheduled a discogram x-ray, which again confirmed a
fracture

at

T-12,

and

Dr.

Holt

recommended

anterior

interbody fusion (“ALIF”) surgery at the L4-L5 level.

lumbar
(Id. at

219).
On

January

surgery at L4-5.

6,

2010,

diagnosed

Holt

(Id. at 199-203).

without complications.
Holt

Dr.

performed

with

fusion

The surgery was performed

(Id. at 201, 213).

Plaintiff

lumbar

At that time, Dr.

degenerative

disk

disease,

discogenic pain, instability, and lumbar radiculopathy.

(Id. at

199-203).
On February 4, 2010, Plaintiff had a one month follow-up
appointment, and Dr. Holt noted that she was “still having some
pain” but “overall [was] much better.”

(Id. at 217).

Dr.

Holt’s examination revealed that Plaintiff’s motor testing was
5/5; sensory intact; and x-rays showed anterior spacer in good
position and bone graft forming well.
Plaintiff

that

she

could

increase

(Id.).
her

Dr. Holt advised

activities

and

start

driving again. (Id.).
Plaintiff

returned

for

her

12

three

month

follow-up

appointment on April 1, 2010, and Dr. Holt noted that she was
still

having

better.”

some

pain,

(Id. at 218).

but

“overall”

Plaintiff

was

“much

Again, Plaintiff’s motor testing was

5/5, and “sensory [was] intact.”

(Id.).

At Plaintiff’s six month follow-up appointment on July 1,
2010, Dr. Holt noted that that Plaintiff had been “doing well”
but had developed pain in her lower back in the preceding two
weeks.

(Id. at 216).

X-rays showed “anterior spacer in good

position” and “good bone graft formed in the spacer itself.”
(Id.).

Dr. Holt diagnosed Plaintiff with “status post lumbar

fusion with improvement,” “SI joint dysfunction,” and low back
pain.

(Id.).

He prescribed a Medrol Dosepak and noted that if

Plaintiff’s pain did not improve in six weeks, he would consider
injections.

(Id. at 235).

On December 2, 2010, Plaintiff presented to Dr. Holt for
her one year follow-up appointment.

Plaintiff complained of

pain around her SI joints; however, Dr. Holt noted that her
“motor testing [was] 5 over 5;” “sensory intact;” and “range of
motion [was] good.”

(Id. at 236).

X-rays showed the anterior

spacer to be in good position and “a bridging bone anteriorly.”
(Id.).

Dr. Holt offered Plaintiff injections for pain, and she

declined.

He instructed her to return in six months.

(Id.).

On June 2, 2011, Plaintiff returned to Dr. Holt one year
and a half after her surgery.

(Id. at 235).

13

Dr. Holt noted

that Plaintiff was reporting “a little bit of pain” around the
SI joints but “overall she is doing well.”

(Id.).

Plaintiff

rated her pain as a four to five on a ten-point pain scale.
(Id. at 265).

X-rays showed that the anterior spacer was in

good position and that fusion was forming.
Plaintiff to return in six months.

Dr. Holt advised

(Id. at 235).

On December 1, 2011, Plaintiff returned to Dr. Holt two
years after her surgery and reported “a little occasional pain
over the SI joint area but overall . . . doing really well.”
(Id. at 263).
sensory,

and

Upon examination, Dr. Holt noted that “[m]otor,
vascularly,

everything

is

intact;”

motion is good;” and “[t]here is no Clonus.” 7
showed “a solid incorporated fusion at L4-L5.”

“[r]ange

(Id.).
(Id.).

of

X-rays
Dr. Holt

stated, “[f]or right now we will follow her along, and I will
see her back here in the office in six months.”

(Id.).

On May 14, 2012, Plaintiff presented to the emergency room
for

an

abscess

under

her

arm,

and

upon

examination,

the

physician noted that her extremities were within normal limits,
normal ROM, no tenderness or swelling, and that she had a steady
gait with no deficits.

(Id. at 330, 333).

One month later, on

June 14, 2012, Plaintiff presented to Dr. Holt with complaints
of low back pain with neck pain that started in the preceding
7

Clonus is “a series of rapid muscle contractions.”
http://www.ninds.nih.gov/disorders/spasticity/spasticity.htm

14

See

week.

(Id. at 347).

Plaintiff rated the pain as a seven on the

pain scale but reported that it was made better with Aleve. 8
(Id.).

Upon examination, Plaintiff’s motor testing was 5/5 in

the lower extremities; sensory was intact; but she had pain with
range of motion with her neck and pain radiating down her arm.
(Id. at 348).
spine,

noting

radiculopathy.”

Dr. Holt recommended an MRI of the cervical
that

“she

(Id.).

likely

has

some

cervicalgia

with

Dr. Holt further opined that “[a]s far

as her lower back goes, she states that she is doing quite well
there.

She states that she is significantly improved from her

preoperative level.

She can continue to increase her activities

from that standpoint.”

(Id.).

On January 24, 2013, Plaintiff presented to Dr. Holt with
complaints of low back pain, neck pain, and right hand numbness,
which she rated as a seven on the pain scale.

(Id. at 344).

Dr. Holt ordered an MRI of her cervical spine which showed “no
significant appearing abnormality of cervical spine” and “mild
bulging, but . . . no evidence of focal disc protrusion.”

(Id.

at 328).
On February 21, 2013, Plaintiff presented to Dr. Holt for a
follow

up

to

her

MRI.

(Id.

at

367).

Dr.

Holt

informed

Plaintiff that the MRI showed a small disc herniation at C5-C6
8

Plaintiff completed a questionnaire on this date stating that
her pain was “very mild at the moment.” (Tr. 353).

15

with degenerative changes and nerve root compression. 9

(Id.).

Dr.

fusion

Holt

discussed

with

Plaintiff

the

possibility

of

surgery at C5-C6 but told her to go home and think about it and
come back in three months.

(Id.).

Dr. Holt noted that if

Plaintiff decided against surgery, he would release her back to
her family physician.
completed

a

Medical

Plaintiff

cannot

(Id.).
Source

“perform

On that same date, Dr. Holt
Statement

sustained

(“MSS”)

work

on

opining
a

regular

that
and

continuing basis” and cannot “maintain attention, concentration
or pace for periods of at least two hours.”

(Id. at 342).

In

addition, Dr. Holt completed a Clinical Assessment of Pain form
(“CAP”) opining that

Plaintiff’s pain is present to such an

extent as to be distracting to the adequate performance of daily
activities,

that

physical

activity

will

greatly

increase

her

pain to such a degree as to cause distraction from a task or
total abandonment of task, and that significant side effects
from her medication may be expected to limit effectiveness of
work duties.

(Id. at 343).

Following this visit to Dr. Holt on

February 21, 2013, Plaintiff did not return until July 18, 2013,
one month after the ALJ issued his decision on June 17, 2013.

9

The actual findings of the radiologist were, “[a]t C5-6, there
is slight disc bulging, but there is no evidence of focal disc
protrusion or spinal stenosis at any cervical level.
No
abnormal signal of cervical cord or cervical vertebrae.
No
significant appearing arthritic change identified.” (Tr. 368).

16

(Id. at 20, 361, 367).
As the ALJ found, Dr. Holt’s opinions that Plaintiff cannot
perform

sustained

work

because

of

back

and

neck

pain

are

undermined by his own findings that, in the months and years
following her car accident in 2009 and her lumbar fusion surgery
in 2010, Plaintiff had remarkable improvement, reporting only “a
little bit” of “occasional,” “very mild” pain, and her physical
examinations were essentially normal. (Id. at 216-18, 235-36,
263, 348, 353).

Plaintiff even declined injections for pain

when Dr. Holt offered.

(Id. at 236).

When Plaintiff later

developed neck pain, Dr. Holt noted that it was made better with
Aleve.

(Id. at 347).

In addition to being inconsistent with his own findings,
Dr.

Holt’s

opinions

are

inconsistent

with

the

remaining

substantial evidence in this case, including the January 2013
MRI of Plaintiff’s cervical spine which showed “no significant”
abnormality of the cervical spine and only “mild” bulging with
“no evidence of focal disc protrusion.” 10
addition,

a

January

2013

x-ray

Plaintiff’s

In

lumbar

spine

showed a “solid fusion” with no abnormalities indicated.

(Id.

10

of

(Id. at 328).

In addition, as discussed, an MRI taken of Plaintiff’s lumbar
spine in June 2009 showed a “recent compression fracture of D12
with mild loss of anterior height,” but otherwise the lumbar
spine was unremarkable. (Tr. 228, 246). An MRI of the cervical
spine on that same date was normal. (Id. at 227, 245).

17

at 354).
In addition, Dr. Holt’s opinions set forth in the MSS and
CAP forms are inconsistent with the opinions of consultative
examiner,

Dr.

Huey

Kidd,

D.O.,

who

evaluated

Plaintiff

on

November 17, 2011, and found upon examination that she had “full
range of motion and 5/5 strength of the upper extremities,” that
she had “full range of motion and 5/5 strength of the lower
extremities,” that she was able to heel and toe walk, that she
was able to bend and touch her toes although she did have some
pain when she did it, and that she was able to fully squat and
stand back up with the help of the examination table.
252-53).

(Id. at

Dr. Kidd diagnosed Plaintiff with low back pain and

lumbar radiculopathy and assigned her no limitations.

(Id. at

253).
In addition, Dr. Holt’s opinions set forth in the MSS and
CAP forms are inconsistent with the opinions of State Agency
reviewer, Dr. Karen Sarpolis, M.D., who completed a physical
residual functional capacity assessment and found that Plaintiff
could

occasionally

lift/carry

twenty

pounds,

frequently

lift/carry ten pounds, and stand/walk/sit six hours each in an
eight-hour workday.
manipulative,

(Id. at 320-25).

visual,

communicative,

Dr. Sarpolis found no
or

environmental

limitations and only occasional postural limitations.
320-24).

18

(Id. at

In

addition,

Dr.

Holt’s

opinions

are

inconsistent

with

Plaintiff’s reported activities of daily living which include
taking care of her own personal needs, cooking, doing laundry,
taking short walks every day (approximately a quarter of a mile)
with no assistive devices, visiting her family and friends, and
shopping.

(Id. at 165-71).

Based on the foregoing, the Court finds that the ALJ had
good cause to assign no weight to the opinions of Dr. Holt set
forth in the MSS and CAP forms.

Accordingly, Plaintiff’s claim

must fail.
B.

Whether the ALJ’s RFC assessment
supported by substantial evidence?

is

Plaintiff also argues that the ALJ erred in finding that
she has the residual functional capacity to perform a range of
light work with the restrictions that she can only “occasionally
climb, balance, stoop, kneel, and crouch,” “frequently, rather
than

constantly,

finger

with

the

right

hand,”

and

concentrated exposure to extreme cold and vibration.”
at

6;

Tr.

23).

The

Commissioner

counters

evidence supports the ALJ’s RFC assessment.

that

“avoid

(Doc. 12

substantial

(Doc. 15 at 5).

Having carefully reviewed the record in this case, the Court
finds that Plaintiff’s claim is without merit.
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.

19

See 20 C.F.R. §

404.1545.

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.
In

her

brief,

Plaintiff

argues

that

the

ALJ

erred

in

affording more weight to the opinions of State Agency reviewer,
Dr. Sarpolis (as set forth in the May 30, 2012, physical RFC
assessment), than those of Plaintiff’s treating physician, Dr.
Holt.

(Tr. 319-25).

However, as discussed above, an ALJ is

“required to consider the opinions of non-examining state agency
medical and psychological consultants because they ‘are highly
qualified physicians and psychologists who are also experts in
Social Security disability evaluation,’” and “[t]he ALJ may rely
on opinions of non-examining sources when they do not conflict

20

with those of examining sources.”
948 (unpublished).

Milner,

275 Fed. Appx. at

Plaintiff argues that Dr. Sarpolis did not

have access to her medical records after May 30, 2012, and,
thus, that Dr. Sarpolis’ opinions were not based on the entire
evidence in the record.

However, the Court has reviewed all of

the medical evidence in this case, including Plaintiff’s medical
records

after

May

30,

2012,

11

and

finds

that

Dr.

Sarpolis’

opinions are consistent with the substantial medical evidence in
this case and that Dr. Holt’s opinions are not.

Having already

found that the ALJ had good cause to reject the opinions of
Plaintiff’s treating physician, Dr. Holt, Dr. Sarpolis’ opinions
do not conflict with any reliable examining source, and, thus,
the ALJ properly relied on those opinions.
Based on the evidence set forth in detail herein, the Court
finds that the substantial evidence in this case supports the
ALJ’s finding that Plaintiff can perform a range of light work,
with the stated restrictions.

Accordingly, Plaintiff’s claim

must fail.
C.

Whether the Appeals Council erred in
failing to properly consider Plaintiff’s
updated treatment records?

Last, Plaintiff argues that the Appeals Council erred in
failing to properly consider her updated treatment records from

11

This evidence is discussed in detail in relation to Issue 3.

21

Dr. Holt following the ALJ’s decision on June 17, 2013.
12

at

8).

medical

Plaintiff

records

consider

them.

to

the

(Id.;

argues

that

Appeals
Tr.

she

submitted

Council,

1-5,

359-73).

but

it

The

(Doc.

additional
refused

to

Commissioner

counters that the Appeals Council did not err in failing to
grant review because the substantial evidence supports the ALJ’s
decision,

notwithstanding

Plaintiff.

the

(Doc. 15 at 12).

new

evidence

submitted

by

Having carefully reviewed the

record in this case, the Court agrees that Plaintiff’s claim is
without merit.
“With a few exceptions, the claimant is allowed to present
new evidence at each stage of [the] administrative process.”
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1261
(11th Cir. 2007).

“Evidence submitted for the first time to the

Appeals Council is determined under a Sentence Four analysis.”
Jack v. Commissioner of Soc. Sec., 2015 U.S. Dist. LEXIS 176372,
*21, 2015 WL 10353144, *6 (M.D. Fla. Dec. 30, 2015), report and
recommendation adopted, 2016 WL 706364 (M.D. Fla. Feb. 23, 2016)
(citing Ingram, 496 F.3d at 1261).

“The Appeals Council must

consider new, material, and chronologically relevant evidence
and must review the case

if ‘the administrative law judge’s

action, findings, or conclusion is contrary to the weight of the
evidence

currently

of

record.’”

(quoting 20 C.F.R. § 404.970(b)).

22

Ingram,

496

F.3d

at

1261

“[W]hen a claimant properly

presents new evidence to the Appeals Council, a reviewing court
must consider whether that new evidence renders the denial of
benefits erroneous.”
is

“relevant

and

Id. at 1262.

probative

so

Evidence is material if it

that

there

is

a

reasonable

possibility that it would change the administrative outcome.”
Caulder v. Bowen, 791 F. 2d 872, 877 (llth Cir. 1986).
In this case, Plaintiff properly submitted her subsequent
treatment records to the Appeals Council, as they were created
after the ALJ’s decision dated June 17, 2013 (id. at 359-73),
and the Appeals Council properly considered the new evidence but
found that it did not provide a basis for changing the ALJ’s
decision.

(Id. at 1-2).

A review of the evidence submitted by

Plaintiff reveals that, while it is “new” evidence, it is not
“material”

evidence

because

there

is

not

a

reasonable

possibility that it would change the administrative outcome in
this case.
Specifically, the evidence submitted by Plaintiff to the
Appeals Council shows that on July 18, 2013, Plaintiff presented
to Dr. Holt with complaints of numbness and tingling in her
right hand.

(Id. at 361).

Dr. Holt noted that Plaintiff had a

problem with her C5-C6 disc, and he ordered physical therapy for
four

weeks.

(Id.).

One

month

later,

on

August

15,

2013,

Plaintiff was evaluated for physical therapy by Dr. William K.
Perkins, DPT.

(Id. at 372).

Plaintiff reported to Dr. Perkins

23

that her problems with her neck began approximately one year
earlier.

(Id.).

Plaintiff

stated

that

she

had

been

“independent [with] all activities until recently when she began
having

neck

pain,”

which

she

rated

as

an

eight.

(Id.).

Plaintiff reported that the pain extended to her right arm and
that she had numbness and tingling in the right hand, as well as
a weak grip.
back

as

(Id.).

well.”

Plaintiff reported “a lot of pain in the

(Id.).

Dr.

Perkins’

physical

examination

revealed that Plaintiff had decreased range of motion by 25% in
her cervical spine and pain upon palpation in the right lumbar
paraspinal musculature; manual muscle testing in the right arm
was 3+/5 with a weakened grip in the right hand; manual muscle
testing in the left arm was 5/5; and manual muscle testing in
the left leg was 4+/5 and in the right leg was 4/5.

(Id.).

Dr.

Perkins gave Plaintiff home exercises to perform and stated that
she had “good rehab potential.”

(Id.).

His goals for the

following four weeks included “improv[ing] trunk strength and
decreas[ing]

pain

in

the

neck

and

radiating

into

the

arm,”

attempting to decrease Plaintiff’s cervical radiculopathy with
cervical

traction,

and

attempting

to

correct

Plaintiff’s

residual weakness from her back surgery with trunk stability
activities.

(Id.).

Two weeks later, on August 29, 2013, Plaintiff returned to
Dr. Holt, and he diagnosed her with cervical spinal stenosis

24

with

instability

radiculopathy.

at

C5-C6,

(Id. at 360).

cervicalgia,

and

cervical

Dr. Holt noted that Plaintiff

“ha[d] tried physical therapy” and reported some pain relief
with

traction

but

that

the

pain

Plaintiff was out of traction. 12

had

returned

(Id.).

as

soon

as

Dr. Holt noted that he

had discussed the option of injections with Plaintiff but that
she declined because of “problems in the past with steroids.”
(Id.).

Dr.

Holt

noted

that,

instead,

Plaintiff

wished

to

proceed with anterior cervical discectomy and fusion (“ACDF”)
surgery at C5-C6.

(Id.).

However, on October 9, 2013, Dr.

Holt’s notes indicate that Plaintiff was “a no show for pre-op,”
and, when the surgery was rescheduled for October 14, 2013, she
was again a “no show,” and the surgery was cancelled.
On October 17, 2013,

(Id.).

Plaintiff called Dr. Holt’s office and

reported that the reason that she did not have the surgery “is
because something is wrong with her Medicaid.”

(Id. at 359).

However, the notation further provided, “I verified patient’s
Medicaid.
medication.”
In

sum,

It

is

active.

[Plaintiff]

also

requested

pain

(Id.).
Plaintiff’s

new

evidence

shows

that

she

sought

treatment from Dr. Holt for neck pain through October 2013 and

12

Dr. Perkins’ notes reflect that he advised Plaintiff to
continue her physical therapy, but Dr. Holt ordered that it be
discontinued. (Tr. 371).

25

went to physical therapy for two weeks.

The physical therapist

noted pain and decreased range of motion in her cervical spine
and muscle weakness in her right arm; he gave her home exercises
to perform; and he opined that she had “good rehab potential.”
Nevertheless, Dr. Holt discontinued Plaintiff’s physical therapy
after only two weeks, offered her injections which she declined,
and then offered her fusion surgery, which she accepted but
later cancelled.
As

the

Appeals

Council

found,

nothing

in

these

records

suggests that Plaintiff’s neck pain, or any other impairment, is
disabling.
reasonable

Therefore,
possibility

Plaintiff
that

any

has
of

changed the administrative outcome.
is

not

material,

a

remand

on

the

failed

this

to

establish

evidence

would

a

have

Because this new evidence
basis

of

new

evidence

is

unwarranted in this case.
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
supplemental security income be AFFIRMED.
DONE this 25th day of March, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

26