Gibbs v. Colvin

Filing 22

Order that the decision of the Commissioner of Social Security denying plaintiff's claim for benefits is AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/28/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ANNETTE GIBBS,

*
*
*
*
*
*
*
*
*
*
*

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

CIVIL ACTION NO. 15-00041-B

ORDER
Plaintiff
judicial

review

Annette
of

a

Gibbs
final

(hereinafter
decision

of

“Plaintiff”)
the

seeks

Commissioner

of

Social Security denying her claim for a period of disability and
disability

insurance

benefits

under

Title

Security Act, 42 U.S.C. §§ 401, et seq.

II

of

the

Social

On October 12, 2015,

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

(Doc. 19).

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 July 19,

2011.

(Tr. 143).

Plaintiff alleged that she has been disabled

since November 10, 2010, due to right knee pain/surgery, left
knee pain and arthritis, left ankle arthritis, bone spurs at
left heel, acid reflux, swelling in both knees and left ankle,
too

much

pressure

on

left

leg,

memory

disability, and poor concentration.
Plaintiff’s
request,

she

applications

was

granted

learning

(Id. at 178, 182).

were

an

problems,

denied

and

administrative

upon

timely

hearing

before

Administrative Law Judge Ricky V. South (hereinafter “ALJ”) on
March 25, 2013.

(Id. at 31).

Plaintiff attended the hearing

with her counsel and provided testimony related to her claims.
(Id. at 36).

A vocational expert (“VE”) also appeared at the

hearing and provided testimony.

(Id. at 59).

On May 23, 2013,

the ALJ issued an unfavorable decision finding that Plaintiff is
not

disabled.

(Id.

at

26).

The

Appeals

Council

Plaintiff’s request for review on December 9, 2014.
2).

denied

(Id. at 1-

Therefore, the ALJ’s decision dated May 23, 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. 18), 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 failing to
consider
the
opinions
of
treating
physician, Dr. Judy C. Travis, M.D.,
dated May 14, 2013?

2.

Whether the Appeals Council erred in
failing
to
consider
medical
records
submitted by Plaintiff based on the dates
of the treatment?

III. Factual Background
Plaintiff was born on

May 2, 1964, and was

forty-eight

years of age at the time of her administrative hearing on March
25, 2013.

(Tr. 31, 36).

Plaintiff graduated from high school

in 1982 and last worked from February 2010 to November 2010 as a
sales clerk at a clothing store.

(Id. at 49-50, 184, 224).

Plaintiff also worked as a cook in a school cafeteria and as a
fast food worker in various restaurants from 2002 to May 2010. 1
(Id. at 184, 214).
At

her

hearing,

Plaintiff

testified

that

her

biggest

problem is pain in her right knee, which she described as a
seven on a ten-point pain scale, after medication.
44).

(Id. at 38,

Plaintiff stated that she stopped working on November 10,

2010, because she “wasn’t able to climb up steps or stand up
long

or

get

on

[her]

knees

or

squat

down.”

(Id.

at

50).

Plaintiff testified that she cannot work now because she cannot
1

The exact dates of Plaintiff’s employment as a cook/kitchen
worker are unclear from the record. (Tr. 214).

3

stand or walk for long periods of time and cannot climb or get
down on the floor.

(Id. at 50-51).

Plaintiff testified that

she has had two surgeries on her right knee (the second one
being

only

four

months

before

her

surgeries did not help the pain.

hearing),

but

that

the

(Id. at 38, 42).

She has

trouble going up and down steps and has fallen once.

(Id. at

39).

According

to

Plaintiff,

she

has

severe

degenerative

arthritis in her right knee and degenerative arthritis in her
left knee.

(Id. at 56).

Her medications include Norco (for

pain), Lovenox (anticoagulant/blood thinner), iron tablets (for
anemia),

and

medication.

Aleve,

and

she

has

no

side

effects

from

her

(Id. at 43-44, 259).

In her Function Report submitted to the Agency, Plaintiff
stated that she cannot stand or walk for a long period of time;
she cannot bend; she cannot step up with her right leg; and she
cannot kneel on her right knee.
for

walking.

(Id.

at

(Id. at 205).

42).

She

lift/carry two gallons of milk;

2

testified

She uses a cane
that

she

can

she can stand about fifteen

minutes; she can walk about ten minutes; and she can sit about
twenty minutes.

(Id. at 52-53).

She cannot bend, squat, kneel,

or crawl, but she can reach overhead with both arms and can grip
with her hands.

(Id. at 53-54).

2

Plaintiff has a driver’s

In her Function Report, Plaintiff reported to the Agency that
she can lift twenty pounds. (Tr. 209).

4

license, but she has not driven since her surgery in November
2012.3

(Id. at 40).

Plaintiff testified that she is married and has one son who
is twenty-four years old.

(Id. at 38-39).

She reported that

her routine consists of getting up in the morning, getting ready
for work, going to work, 4 getting home, sometimes cooking, and
going to bed.

(Id. at 202).

Plaintiff reported that she takes

care of her husband and does the cooking, and she takes care of
their pets.

(Id. at 205).

She prepares meals every other day

for her family, which takes one to two hours.

(Id. at 206).

She irons sitting down, washes clothes, and does the dishes.
(Id.).

She can take care of her own personal needs but has to

sit down to bathe, dress, and do her hair.

(Id. at 205).

She

needs no reminders to take care of her personal needs or to take
her medicine.
own finances.

(Id. at 206).

Plaintiff shops and can handle her

(Id. at 207).

She socializes on the telephone

and goes to church regularly.

She stated that she needs no

reminders about going places, but she needs someone to accompany
her when she goes out.

(Id. at 40, 208).

She has no problems

getting along with family, friends, or neighbors.
3

Prior to her surgery
regularly. (Tr. 207).

in

November

4

2012,

(Id. at 209).

Plaintiff

drove

The ALJ found that Plaintiff’s work after her onset date of
November 10, 2010, did not constitute substantial gainful
activity. (Tr. 16, 36).

5

She can pay attention “at all time[s];” she finishes what she
starts and can follow spoken instructions “good,” but she has
trouble

with

written

instructions.

(Id.).

She

gets

along

“good” with authority figures and has never been fired from a
job because of problems getting along with people.
210).

(Id. at

She handles stress and changes in routine “pretty good.”

(Id.).
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
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).

5

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
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).
6

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.

§§

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. 6

6

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
7

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since November
10, 2010, the alleged onset date, and that she has the severe
impairment of osteoarthritis.

(Tr. 16).

The ALJ further found

that Plaintiff 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.).
The

ALJ

concluded

that

Plaintiff

retains

the

residual

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

work,

except

that

Plaintiff

can

“lift/carry

20

pounds

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)).

8

occasionally

and

occasionally

bend,

never

ladders,

climb

10

pounds

balance,

frequently;
stoop,

ropes

or

sit/stand

kneel,

crouch

scaffolds;

avoid

at
and

will;
crawl;

concentrated

exposure to cold, heat, wetness, humidity, pulmonary irritants,
fumes,

odors,

hazardous

dust,

and

conditions

such

gases;
as

mental

avoid

unprotected

machinery and uneven surfaces.
following

and

all

exposure

heights,

to

dangerous

The claimant would have the

limitations:

no

more

than

simple,

short

instructions and simple work related decisions with few work
place

changes

(unskilled

work);

only

simple,

work-related

decisions with few work place changes (low stress); occasional
interaction

with

the

general

public,

supervisors,

and

co-

workers; and she is unable to work in close proximity to otherseasily distracted.”
while

Plaintiff’s

reasonably

be

(Id. at 17).
medically

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 only partially credible for
the reasons explained in the decision.
Given

the

Plaintiff’s

RFC

(Id. at 23).
and

her

non-exertional

limitations, the ALJ found that Plaintiff is not capable of
performing

her

past

relevant

work

as

a

cashier

(light/unskilled), fast food worker (light/unskilled), or salad
bar attendant (light/semiskilled).

9

(Id. at 24, 62).

However,

utilizing

the

testimony

of

a

VE,

the

ALJ

concluded

that

considering Plaintiff’s residual functional capacity for a range
of

light

work,

as

well

as

her

age,

education

and

work

experience, there are jobs existing in the national economy that
Plaintiff is able to perform, such as “garment sorter,” “garment
folder,” and “hand finisher,” all of which are classified as
light and

unskilled.

(Id. at 17,

25,

concluded that Plaintiff is not disabled.
The

Court

now

considers

the

62).

Thus, the ALJ

(Id. at 26).

foregoing

in

light

of

the

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

In

this

Issues
Whether the ALJ erred in failing to
consider
the
opinions
of
treating
physician, Dr. Judy C. Travis, M.D.,
dated May 14, 2013?
case,

Plaintiff

argues

that

the

ALJ

erred

in

failing to consider the opinions of her treating physician, Dr.
Judy C. Travis, M.D., set forth in a second set of Medical
Source Statement (“MSS”) and Clinical Assessment of Pain (“CAP”)
forms completed on May 14, 2013.

Included in the forms is Dr.

Travis’ opinion that Plaintiff is unable to maintain gainful
employment as a result of her pain.
378-79).

(Doc. 14 at 2; Tr. 352-53,

The Commissioner counters that the ALJ’s failure to

consider the second set of MSS and CAP forms is harmless because
the

ALJ

did

consider

the

first

10

set

of

MSS

and

CAP

forms

completed by Dr. Travis on July 18, 2012.

In the earlier forms,

Dr. Travis likewise opined that Plaintiff is unable to maintain
gainful employment as a result of her pain.
maintains

that

essentially
rejected

by

Dr.

Travis’

redundant
the

ALJ

of

the

because

second
first
they

substantial evidence in the case.
378-79).

set

set,
are

The Commissioner
of

opinions

which

were

inconsistent

are

properly
with

the

(Doc. 16 at 7-10; Tr. 352-53,

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.

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.

11

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

(unpublished)
“The

when

examining sources.”

275 Fed. Appx. 947, 948

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

580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining

physicians,

testimony

any

of

medical

good

cause

source

exists

when

it

to

is

discredit

contrary

to

the
or

unsupported by the evidence of record.

Phillips v. Barnhart,

357 F.3d 1232, 1240 (11th Cir. 2004).

“Good cause may also

exist

where

a

doctor’s

opinions

are

merely

conclusory,

inconsistent with the doctor’s medical records, or unsupported
by objective medical

evidence.”

Hogan v. Astrue, 2012 U.S.

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).

12

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 intermittently by Dr. Travis from June 8, 2010, to May
14, 2013, primarily for leg, knee, and foot pain. 7
352-53, 378-79, 381, 384, 390).

(Tr. 349-50,

Dr. Travis’ notes are sparse

but indicate that Plaintiff’s pain was treated conservatively
with anti-inflammatories and pain medications.

(Id. at 300,

349-50).
On

November

6,

2010,

Plaintiff

saw

an

orthopedist,

Dr.

Anthony L. Tropeano, M.D., who diagnosed her with a right knee
medial meniscal tear, chondromalacia, osteoarthritis, a chronic
ACL

tear,

and

synovitis.

(Id.

at

299-300).

Dr.

Tropeano

advised Plaintiff of her treatment options, and she elected to
proceed with a right knee arthroscopy
(Id. at 299-300).

on November 16, 2010.

On January 17, 2011, two months after her

surgery, Dr. Tropeano noted that Plaintiff was “doing well.”

7

Dr. Travis treated Plaintiff once in 2010, three times in 2012,
and three times in 2013. (Tr. 349-50, 352-53, 378-79, 381, 384,
387, 390).

13

(Id. at 313).

His notes reflect that Plaintiff still had a

“little bit of a limp” and that her physical therapy had been
delayed because she had a family emergency over the holidays.
(Id.).

Plaintiff reported that she was “able to do most of the

things she wants,” except bending and standing for long periods
of time.

(Id.).

Plaintiff also reported that she was “ready to

get back to work,” and Dr. Tropeano released her to light work
with no prolonged standing, bending, or squatting.

(Id.).

On

February 21, 2011, three months post surgery, Plaintiff reported
to Dr. Tropeano that she was still having pain with her right
knee but was getting better.

(Id. at 312).

Dr. Tropeano gave

Plaintiff a Supartz injection and noted that she tolerated it
well.

(Id. at 312).

He instructed Plaintiff to return in the

following weeks for the two remaining injections in the Supartz
series.

(Id.).

On July 22, 2011, eight months post surgery, Dr. Tropeano
noted that Plaintiff had completed the Supartz injections and
still complained of pain in her right knee and left ankle.
at 309).

(Id.

Dr. Tropeano’s examination revealed no swelling of the

right knee, some tenderness, and 0 to 110 degrees of range of
motion.

(Id.).

He did not recommend further surgery on her

knee at that time.
reduced
(Id.).

range

of

X-rays

(Id.).
motion

of

in

Dr. Tropeano noted tenderness and
Plaintiff’s

Plaintiff’s

14

left

left

ankle

ankle

revealed

as

well.

anterior

spurring
(Id.).

but

no

fracture,

dislocation,

or

bony

pathology.

Dr. Tropeano gave Plaintiff a steroid injection in her

knee, which she tolerated well, and ordered physical therapy for
her ankle.

(Id.).

He instructed Plaintiff to return in a few

weeks, but the record reflects that Plaintiff did not return to
Dr. Tropeano.
Plaintiff filed her application for disability benefits on
July 19, 2011.
examined

at

Robidoux,

(Id. at 143).

the

M.D.

request
(Id.

at

On October 3, 2011, Plaintiff was

of

the

Agency

318-21).

Dr.

by

Dr.

Stephen

Robidoux

noted

J.

that

Plaintiff presented with complaints of arthritis pain in her
knees and feet.

(Id. at 318).

Upon examination, Dr. Robidoux

noted that Plaintiff had a “normal unaided gait,” normal range
of motion in all upper and lower extremities, no muscle atrophy
or weakness, was able to squat and raise half way, and had
normal heel and toe walking.

(Id. at 319-20).

Dr. Robidoux

diagnosed Plaintiff with poor arches in her feet and advised her
to wear shoes with good arch support.
her with degenerative arthritis.
that
right

Plaintiff
knee

had

(without

recently
a

knee

had

(Id.).

(Id.).

Dr. Robidoux noted

arthroscopic

replacement)

required no recent follow up.”

He also diagnosed

(Id.).

and

surgery
that

it

on

her

“ha[d]

Dr. Robidoux advised

Plaintiff that she could benefit from weight reduction for her
knees and feet.

(Id.).

He found no limitations for sitting,

15

standing, walking, climbing, lifting, carrying, using hand and
foot controls, handling objects, talking, listening, or travel.
(Id.).
Following

her

initial

visit

to

Dr.

Travis

in

2010,

Plaintiff returned to Dr. Travis on February 13, 2012, and March
13, 2012, with complaints of knee and bilateral foot pain, for
which

Dr.

Travis

medications.
attorney

(Id.

wrote

a

prescribed
at

349).

letter

to

anti-inflammatory
On

Dr.

July

11,

Travis

2012,

and

pain

Plaintiff’s

requesting

that

she

complete Clinical Assessment of Pain (“CAP”) and Medical Source
Statement (“MSS”) forms for Plaintiff.

(Id. at 351).

On July 18, 2012, Dr. Travis completed the forms, opining
in the CAP form 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 increase pain to such an
extent that bed rest and/or medication will be necessary, and
that

significant

side

effects

from

her

medication

expected to limit effectiveness of work duties.

may

be

(Id. at 352).

In addition, Dr. Travis opined in the MSS (physical) form that
Plaintiff could sit for only four hours in an eight hour work
day,

could

stand/walk

for

less

than

one

hour

a

day,

could

occasionally lift/carry ten pounds, could frequently lift/carry
one pound, could rarely bend or stoop, and could never work
around hazardous machinery.

(Id. at 353).

16

Dr. Travis opined,

however,

that

manipulation

Plaintiff

and

could

occasionally

frequently

push/pull

with

perform
arms

gross

and

legs,

balance, climb, perform fine manipulation, reach overhead, and
operate motor vehicles.

(Id.).

She also opined that Plaintiff

would be absent from work more than three times a month.

(Id.).

The following day, July 19, 2012, Plaintiff presented to
Dr. Travis for a “pain assessment requested by lawyer.”
390).

Upon

examination,

Dr.

Travis

noted

that

(Id. at
Plaintiff

complained of right knee, left ankle, and left foot pain but had
“[f]ull range of motion of all joints;” “[a]ll muscles [were]
functioning well;” and “[n]o atrophy [was] noted.”

(Id.).

Dr.

Travis did note that Plaintiff had popping in the right knee
with extension.
On

(Id.).

August

31,

2012,

Plaintiff

presented

to

a

second

orthopedist, Dr. W.L. Pinchback, Jr., M.D., for treatment of
pain in both knees and her left ankle.

(Id. at 369).

Dr.

Pinchback’s examination revealed that Plaintiff had an “antalgic
gait,” some tenderness and decreased range of motion in both
knees, and some intermittent discomfort in the left ankle.
at

370).

X-rays

of

Plaintiff’s

left

ankle

showed

(Id.
early

degenerative changes, but Dr. Pinchback noted that “it is not
severe.”
narrowing

(Id.).
of

the

X-rays of Plaintiff’s left knee showed some
patella

femoral

joint

and

associated

osteophytes, but otherwise the joint spaces were fairly well

17

maintained.

(Id.).

X-rays of Plaintiff’s right knee showed

severe degenerative arthritis involving the medial compartment
of the knee with bone-on-bone contact.

(Id.).

Dr. Pinchback

discussed with Plaintiff the option of having a total right knee
replacement;

however,

injections instead.

given

her

young

Plaintiff agreed.

age,
(Id.).

he

recommended

Dr. Pinchback

did not recommend any treatment for Plaintiff’s ankle and left
knee.

(Id.).

Subsequently, on September 28, 2012, Plaintiff

contacted Dr. Pinchback’s office and advised that she wished to
proceed with surgery.

(Id. at 367).

On November 8, 2012, Dr.

Pinchback performed a total right knee arthroplasty.
363).

(Id. at

On November 30, 2012, Plaintiff returned for her three

week post-surgery follow up examination, and Dr. Pinchback noted
that she was “doing very well and making decent progress.”
at 364).

(Id.

Dr. Pinchback instructed her to continue physical

therapy and return in three weeks.

(Id.).

Plaintiff’s physical

therapist noted on that same date that Plaintiff’s knee hurts
but “she feels better overall.”

(Id. at 362).

On December 21,

2012, Plaintiff returned for her six week post-surgery follow up
examination, and Dr. Pinchback noted that “she is doing very
well;” “her wound is healing well;” and “she is making excellent
progress.”
continue

(Id.

physical

at

360).

therapy

Dr.
and

Pinchback

return

in

instructed

six

weeks.

her

to

(Id.).

Plaintiff returned on February 1, 2013, three months after her

18

knee replacement surgery, and Dr. Pinchback noted that she was
“doing very well and making excellent progress.”

(Id. at 355).

Her examination revealed that she was flexing her knee about 90
degrees

and

extending

it

to

almost

0

degrees;

her

surgical

incision was well healed and non-tender; x-rays showed excellent
position of her knee prosthesis with no loosening. (Id.).

Dr.

Pinchback

and

discontinued

physical

therapy

at

that

time

recommended that Plaintiff use a cane until her limp resolved
and return in three months.
On

April

1,

2013,

(Id. at 356).
one

week

after

her

administrative

hearing, Plaintiff returned to Dr. Travis and reported that she
was there for a “check up.” 8

(Id. at 387).

Dr. Travis found

that Plaintiff had no swelling, no deformities, good muscle mass
bilaterally, full range of motion of all joints, all muscles
functioning well, and no atrophy noted, although there was still
popping in the right knee with extension.

(Id. at 388).

Dr.

Travis prescribed pain medication and instructed Plaintiff to
return as needed.

(Id.).

Two weeks later, on April 16, 2013,

Plaintiff returned to Dr. Travis with complaints of pain in her
right knee, left foot, and left ankle, and Dr. Travis’ findings
were the same as the April 1, 2013, visit (no swelling, no

8

Plaintiff’s preceding visit to Dr. Travis had been July 19,
2012, the day after Dr. Travis completed the first MSS and CAP
forms. (Tr. 390).

19

deformities, good muscle mass bilaterally, full range of motion
of all joints, all muscles functioning well, no atrophy, and
popping in the right knee with extension).
On

May

14,

2013,

one

week

before

(Id. at 385).
the

ALJ

issued

his

decision on May 23, 2013, Dr. Travis completed a second set of
MSS and CAP forms. (Id. at 26, 378-79).

The second MSS is

substantially similar to the first, with the notable exceptions
that Dr. Travis increased Plaintiff’s ability to lift/carry from
one pound to five pounds frequently; she decreased the frequency
of

any

motor

climbing,
vehicles

balancing,

from

fine

occasionally

manipulation,
to

rarely;

and

she

operating

noted

that

Plaintiff was using an assistive device; and she expressly based
her opinions on Plaintiff’s problems with restless leg, “severe
[illegible] knee,” morbid obesity, and chronic low back pain.
(Id. at 353, 378).

In addition, Dr. Travis’ second CAP form is

substantially similar to the first one that she completed on
July 18, 2012, with the notable exceptions that she decreased
the degree of pain that would be caused by physical activity
from necessitating bed rest to only causing distraction from the
task, and she increased the severity of side effects caused by
medications from significant to severe.

(Id. at 352, 379).

While Plaintiff makes much of the fact that the ALJ did not
discuss the second set of MSS and CAP forms in his decision,
given the substantial similarity with the first set of MSS and

20

CAP forms and given the lack of support in the record for Dr.
Travis’ opinions in both sets (as discussed below), the Court
finds that any error by the ALJ in failing to consider the
second set was harmless.

See Battle v. Astrue, 243 Fed. Appx.

514, 522 (11th Cir. 2007) (unpublished) (errors are harmless if
they do not prejudice the claimant); 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,

the

ALJ

properly

found

that

Dr.

Travis’

opinions set forth in the MSS and CAP forms completed on July
18, 2012 (that Plaintiff cannot perform any gainful activity
because of the severity of her pain and exertional limitations) 9
are

undermined

by

Dr.

Travis’

own

conservative,

infrequent

treatment of Plaintiff, as well as her own examination findings.
For example, on July 19, 2012, the day after she completed the
first set of MSS and CAP forms, and again on April 1 and April
16, 2013, five months after Plaintiff’s right knee replacement
surgery by Dr. Pinchback, Dr. Travis found that Plaintiff had
full range of motion in all joints; all of her muscles were
9

While Dr. Travis does not specify in the first CAP form the
source of Plaintiff’s pain, the Court assumes based on the
medical records that Dr. Travis is referring to Plaintiff’s
knee, leg, foot, and ankle problems. (Tr. 352).

21

functioning

well;

and

she

had

no

atrophy,

no

swelling,

deformities, and good muscle mass bilaterally.
385, 388, 390-91).

no

(Id. at 363,

These findings contradict the severity of

pain and limitations expressed in both sets of Dr. Travis’ MSS
and CAP forms.

(Id. at 352-53, 378-79).

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

Travis’

substantial
treatment

opinions
evidence

notes

on

in

are

inconsistent

this

August

case,

31,

with

including

2012,

that

the
Dr.

the

remaining
Pinchback’s

degenerative

changes in Plaintiff’s left ankle and left knee were not severe
(id. at 370); his treatment notes on November 30, 2012, three
weeks after Plaintiff’s total right knee replacement surgery,
that Plaintiff was “doing very well and making decent progress”
(id. at 364); his treatment notes on December 21, 2012, six
weeks post-surgery, that she was “doing very well,” that “her
wound [was] healing well,” and that she was “making excellent
progress” (id. at 360); his treatment notes on February 1, 2013,
three months post surgery, that she was “doing very well and
making excellent progress,” that she was flexing her knee about
90

degrees

incision

and

was

extending

well

healed

it

to

and

almost

0

non-tender,

degrees,
that

she

that
had

her
no

swelling, that her x-rays showed excellent position of the knee
prosthesis with no loosening, and that she no longer required
physical therapy and could return in three months.

22

(Id. at 355-

56).
In addition, Dr. Travis’ opinions set forth in both sets of
MSS

and

CAP

consultative

forms

are

examiner,

inconsistent

Dr.

Stephen

with
J.

the

opinions

of

M.D.,

who

Robidoux,

evaluated Plaintiff on October 3, 2011, and found her to have no
limitations

whatsoever.

examination

findings

(Id.

include

at

321).

that

Plaintiff

Dr.

Robidoux’s

had

a

“normal

unaided gait,” normal range of motion in all upper and lower
extremities, full range of motion in her back, no muscle atrophy
or weakness, and that she was able to squat and raise half way
and had normal heel and toe walking.

(Id. at 319-20).

Dr. Travis’ opinions are also inconsistent with Plaintiff’s
reported activities of daily living which include cooking for
her family, ironing, washing clothes, doing the dishes, taking
care of her own personal needs, shopping, and attending church
regularly.

(Id. at 40, 202, 205-08).

In addition, Dr. Travis’

opinions in the two MSS forms that Plaintiff can only lift/carry
ten pounds occasionally and one to five pounds frequently is
directly

contradicted

by

Plaintiff’s

that she can lift twenty pounds.

statement

(Id. at 209).

to

the

Agency

Moreover, Dr.

Travis’ opinions in both CAP forms that the side effects of
Plaintiff’s medications significantly limit her ability to work
are contradicted by Plaintiff’s own testimony that she has no
side effects from her medications.

23

(Id. at 43).

Based on the foregoing, the Court finds that the ALJ had
good cause to assign little weight to the opinions of Dr. Travis
set forth in the July 18, 2012, MSS and CAP forms.

Moreover,

because Dr. Travis’ opinions set forth in the second set of MSS
and CAP forms on May 14, 2013, are likewise inconsistent with
the

substantial

altered

the

evidence

ALJ’s

in

this

determination;

consider them is harmless.

case,
thus,

they
the

would

ALJ’s

not

have

failure

to

See Battle, 243 Fed. Appx. at 522;

Ware, 651 F. 2d at 412.
In addition, based on the evidence

set forth

in detail

above, 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.
B.

Whether the Appeals Council erred in
failing
to
consider
medical
records
submitted by Plaintiff based on the dates
of the treatment records?

Last, Plaintiff argues that the Appeals Council erred in
failing

to

properly

consider

her

treatment

records

from

Dr.

Pinchback dated June 7, 2013, through August 12, 2013, following
the ALJ’s decision on May 23, 2013.
Plaintiff

argues

that

she

(Doc. 14 at 8; Doc. 12-1).

submitted

the

additional

medical

records to the Appeals Council; however, the Appeals Council
reviewed the records and held that they did not relate to the

24

period

in

review.

question
(Doc.

14

and,
at

therefore,

8; Doc.

12-1;

did
Tr.

not

warrant

1-4).

granting

The

Appeals

Council further declined to make the new evidence part of the
record. 10

(Id.).

Having carefully reviewed the entire record in

this case, including the treatment records at issue, the Court
finds that the

new evidence submitted by Plaintiff

does not

provide a basis for changing the ALJ’s decision in this case.
Therefore, any error by the Appeals Council in its evaluation of
that new evidence is harmless.
“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
10

Although the Appeals Council declined to make the new evidence
part of the record, this Court granted Plaintiff’s motion to
correct the record to include the new evidence.
(Doc. 15).
Therefore, Dr. Pinchback’s treatment records at issue, which
relate to Plaintiff’s treatment after the ALJ’s decision, are
part of the record on appeal. (Doc. 12-1).

25

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

currently

of

record.’”

Ingram,

(quoting 20 C.F.R. § 404.970(b)).

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 from Dr. Pinchback to the Appeals Council, as
they were created after the ALJ’s decision dated May 23, 2013.
Thus, they were “new.”

In addition, having reviewed the new

evidence at length, the Court finds that the records do shed
light on why Plaintiff was experiencing pain in her right knee
during

the

relevant.”

relevant

period;

(Doc. 12-1).

thus,

they

were

“chronologically

Therefore, the Appeals Council erred

in rejecting Plaintiff’s new evidence on the basis that it was
“about a later time” and did not affect the question of whether
Plaintiff was disabled on or before May 23, 2013.

(Tr. 2).

Nevertheless, as previously discussed herein, errors which do
not

prejudice

the

Plaintiff

and

which

would

disability determination are harmless.
Appx. at 52; Wright, 153 Fed. Appx. at 684.

26

not

change

the

See Battle, 243 Fed.

In this case, the new evidence submitted by Plaintiff to
the Appeals Council shows that on June 7, 2013, two weeks after
the ALJ’s decision, Plaintiff presented to Dr. Pinchback with
complaints of right knee pain.

(Doc. 12-1 at 8).

Dr. Pinchback

noted that Plaintiff had no swelling, instability, or muscle
weakness of the knee, but she did have thick, tight scar tissue
in

the

knee.

(Id. at 9).

X-rays further showed

that

the

prosthesis was in excellent position, that Plaintiff had good
bone mineralization, and that she did not have signs of reflex
sympathetic
“extensive

dystrophy.
adhesive

(Id.).

capsulitis”

in

However,
her

right

Plaintiff

had

knee,

Dr.

and

Pinchback recommended arthroscopic debridement and release of
adhesions. 11

(Id.).

On June 20, 2013, Dr. Pinchback performed

arthroscopic debridement, synovectomy, and lysis of adhesions 12
in Plaintiff’s right knee.

(Id. at 10-12).

On June 28, 2013,

one week post surgery, Plaintiff’s physical therapist noted that
she was “doing well” and that she stated that her knee “is
feeling better.”

(Id. at 14).

On July 3, 2013, two weeks post

11

Adhesive capsulitis is “caused by tightening of the soft
tissue and formation of scar tissue.”
See http://www.
mountsinai.org/patient-care/health-library/treatments-and-proce
dures/adhesive-capsulitis-arthroscopic-surgery. Doctors perform
arthroscopic surgery to break up, cut, and remove scar tissue to
improve range-of-motion. Id.

12

Lysis of adhesions is the process of cutting scar tissue
within the body. See http://www.mountsinai.org/patient-care
/health-library/treatments-and-procedures/lysis-of-adhesions.

27

surgery,

Dr.

Pinchback

noted

that

Plaintiff

“is

doing

very

well,” “has minimal complaints of pain and discomfort,” and “has
responded well to her physical therapy program.”
Dr.

Pinchback’s

physical

examination

revealed

(Id. at 4).

that

Plaintiff

could extend her knee to 0 degrees and flex to about 90 degrees,
that

she

ambulated

“with

a

much

better

“appear[ed] to be more comfortable.”
remarked
(Id.).

that

he

“could

see

the

gait,”

(Id. at 5).
pain

relief

and

that

she

Dr. Pinchback
in

her

face.”

He instructed Plaintiff to continue physical therapy and

return for a follow up in four to six weeks.

(Id.).

Plaintiff

returned on August 12, 2013, and Dr. Pinchback noted, “[t]his
patient is in today and doing well now.”

(Id. at 2).

His

examination revealed that she could flex her right knee about 90
degrees and extend it to 0 degrees.

(Id. at 3).

advised

of

Plaintiff

that

90

degrees

flexion

Dr. Pinchback
is

considered

acceptable but that he expected her to do much better with time
and continued exercise.

(Id.).

He advised Plaintiff to “walk

as much as she can” and return in three months for a check up.
(Id.).

This is the final treatment note from Dr. Pinchback in

the record.
In sum, Plaintiff’s new evidence shows that she formed scar
tissue in her right knee following her knee replacement surgery
on November 8, 2012, which caused her pain, and prompted Dr.
Pinchback to recommend and perform arthroscopic surgery on her

28

right knee seven months later, on June 20, 2013, to debride and
remove the scar tissue.

However, nothing in

the subsequent

treatment records by Dr. Pinchback reflects that Plaintiff was
disabled during the relevant period.
10-12).

(Id. at 363; Doc. 12-1 at

To the contrary, the substantial evidence in this case

(specifically

including

Plaintiff’s

treatment

records,

the

consultative report of Dr. Robidoux, the evidence of Plaintiff’s
activities

of

daily

living,

and

the

most

recent

treatment

records from Dr. Pinchback), shows that Plaintiff is capable of
performing a range of light work, with the stated restrictions.
Having determined that the new evidence presented to the
Appeals Council, i.e., Dr. Pinchback’s treatment records from
June 7, 2013, to August 12, 2013, does not render the ALJ’s
denial of benefits erroneous, any error by the Appeals Council
in

its

evaluation

warrant reversal.
V.

of

the

evidence

is

harmless

and

does

not

Accordingly, Plaintiff’s claim must fail.

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

AFFIRMED.
DONE this 28th day of March, 2016.

29

insurance

benefits

be

/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

30