Gill v. Colvin

Filing 21

Order re: 1 Complaint filed by James Gill stating that the decision of theCommissioner of Social Security denying Plaintiffs claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/28/2016. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JAMES GILL,

*
*
*
*
*
*
*
*
*
*
*

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

CIVIL ACTION NO. 15-00146-B

ORDER
Plaintiff
judicial
Social

James

review

Security

of

a

Gill

(hereinafter

final

decision

denying

his

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 June 13, 2016, the parties consented to have

the undersigned conduct any and all proceedings in this case.
(Doc. 18).
conduct

Thus, the action was referred to the undersigned to

all

proceedings

and

order

the

entry

of

judgment

in

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

Upon careful consideration of the administrative

record and the memoranda of the parties, it is hereby ORDERED
that the decision of the Commissioner be AFFIRMED.
I.

Procedural History
Plaintiff protectively filed his application for benefits

(Tr. 312) 1 .

on September 12, 2011.

Plaintiff alleges that he

has been disabled since February 13, 2012, due to problems with
his back, neck, shoulder, and depression.

(Id. at 217, 221,

316, 339).
Plaintiff’s application was denied and upon timely request,
he was granted an administrative hearing before Administrative
Law Judge Mary E. Helmer (hereinafter “ALJ”) on May 8, 2013.
(Id. at 214).

Plaintiff attended the hearing with his counsel

and provided testimony related to his claims.
218).

(Id. at 214,

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

and provided testimony.

(Id. at 224).

On July 15, 2013, the

ALJ issued an unfavorable decision finding that Plaintiff is not
disabled.
request

(Id. at 198).
for

review

on

The Appeals Council denied Plaintiff’s
January

21,

2015.

(Id.

at

1-2).

Therefore, the ALJ’s decision dated July 15, 2013, became the
final decision of the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

waived oral argument on June 3, 2016 (Doc. 17), and agree that
this case is now ripe for judicial review and is properly before
this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

1

When referencing the Social Security Transcript, the Court uses
the page numbers found on the transcript, rather than the page
numbers utilized by CM-ECF.

2

II.

Issues on Appeal
1. Whether the ALJ erred in rejecting
opinion of treating physician, Dr.
Fitzgerald, M.D., while relying on
opinion of consultative physician,
Richard Harris, M.D.?

the
M.J.
the
Dr.

2.

Whether the ALJ erred in evaluating
Plaintiff’s complaints of pain?

3.

Whether the
failing
to
additional
Plaintiff?

Appeals Council erred in
adequately
examine
the
evidence
submitted
by

III. Factual Background
Plaintiff was born on October 13, 1973, and was thirty-nine
years of age at the time of his administrative hearing on May 8,
2013.

(Tr. 214, 312).

Plaintiff completed the eleventh grade

in high school, attending regular classes.
last

worked

from

construction work.

2002

to

(Id.).

2005

as

a

(Id. at 317).

manual

laborer

He

doing

He stopped working in May 2005 when

he went to jail “for child support.”

(Id. at 316).

At his hearing, Plaintiff testified that he can no longer
work because of pain from injuries he sustained to his back and
neck in a car accident that occurred on February 13, 2012.2

2

(Id.

Plaintiff originally filed his application for benefits on
September 12, 2011, alleging problems with his back and foot.
(Tr.
312, 316).
While his application was pending, he was
injured in a car accident on February 13, 2012, which caused
problems with his back, neck, and shoulder. (Id. at 312, 339).
At his hearing, Plaintiff amended his onset date from September
3

at 219, 221-22, 224, 339).

He testified that he takes pain

medication (Lortab and Soma), which provides relief from the
pain but makes him drowsy. 3

(Id. at 219-20, 324).

He also

testified that he has trouble sleeping and estimated that he
sleeps

about

increments.
been

six

(Id. at 223).

diagnosed

treatment.

hours

with

a

night,

broken

up

into

two

hour

Plaintiff testified that he has also

Hepatitis

C,

for

which

he

receives

no

(Id.).

Plaintiff testified that he lives with his mother, and his
normal routine consists of getting up, walking out on the porch,
and lying down about six hours during the day.
220).

(Id. at 218,

Plaintiff testified that he does not do any chores around

the house, and while he can drive, he has not driven since his
car accident in February 2012.

(Id. at 218-20).

Plaintiff testified that he uses a cane and can stand for
about five minutes, sit for about ten minutes, walk for about
four minutes, and lift/carry four pounds.

(Id. at 220-21, 224).

He testified that he also has problems with memory loss.

(Id.

at 221).
IV.

Analysis

1, 2011, to February 13, 2012, alleging problems with his back,
neck, and depression. (Id. at 217, 219, 221, 224).
3

In his pain questionnaire form, Plaintiff reported that his
pain medication causes no side effects. (Tr. 324).

4

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).

4

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

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

1986).

The

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

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
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).
4

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
5

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. 5

5

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
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
6

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since February
13, 2012, his amended alleged onset date, and that he has the
severe impairments of mild degenerative changes of the lumbar
spine,

mild

narrowing

of

the

cervical

protrusion at T11-12, and depression.

6

spine,

small

(Tr. 200).

disc

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 1.7
The

ALJ

(Id. at 203).
concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
light work, except “with an option to sit or stand at 60 minute
intervals; never climb ladders, ropes, or scaffold; never stoop,

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

The ALJ found Plaintiff’s hyperlipidemia and hepatitis C to be
asymptomatic and, thus, non-severe. (Tr. 203). Plaintiff does
not challenge those findings.

7

The ALJ concluded that Plaintiff has only mild restrictions in
activities of daily living and social functioning, moderate
difficulties in concentration, persistence or pace, and no
episodes of decompensation. (Tr. 204).

7

kneel, crouch, or crawl; and avoid all exposure to excessive
vibration, unprotected heights, and moving machinery.

Claimant

is limited to performing work that is simple and routine in
nature, involving repetitive tasks and requiring only simple,
work-related decisions, with few, if any, workplace changes.
manipulative,

visual,

established.”

or

communicative

(Id. at 205).

limitations

No
are

The ALJ also determined that while

Plaintiff’s medically determinable impairments could reasonably
be

expected

to

produce

the

alleged

symptoms,

his

statements

concerning the intensity, persistence and limiting effects of
the

alleged

symptoms

were

only

partially

reasons explained in the decision.

credible

(Id. at 206).

for

the

The ALJ found

that Plaintiff is unable to perform any of his past relevant
work as a general laborer (unskilled, heavy).

(Id. at 208).

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

his

age,

education

and

work

experience, there are jobs existing in the national economy that
Plaintiff is able to perform, such as a “table worker,” “weight
tester,” and “sorter,” all of which are classified as unskilled
and sedentary.

(Id. at 209).

Plaintiff is not disabled.
The

Court

now

Thus, the ALJ concluded that

(Id.).

considers

the

foregoing

record in this case and the issues on appeal.

8

in

light

of

the

1.

Issues

A. Whether the ALJ erred in rejecting
opinion of treating physician, Dr.
Fitzgerald, M.D., while relying on
opinion of consultative physician,
Richard Harris, M.D.?
In

this

rejecting

case,

the

Plaintiff

opinion

of

argues

his

that

treating

the

the
M.J.
the
Dr.

ALJ

physician,

erred
Dr.

in

M.J.

Fitzgerald, M.D., set forth in a letter dated May 8, 2013, that
Plaintiff is unable to work because of “moderately severe to
severe pain” caused by a disc bulge at L5-S1, a disc bulge at
L4-L5, a disc bulge at L4-L4, a central protrusion at T-11-12,
and

“injuries”

to

his

ribs,

neck,

and

shoulders

accident that occurred on February 13, 2012.
at 2).

in

a

car

(Tr. 590; Doc. 12

In the letter, Dr. Fitzgerald opined that, because of

Plaintiff’s

pain,

he

is

unable

to

maintain

concentration,

persistence, or pace for more than one hour at a time; that
after an hour, the pain he experiences causes him to abandon
most tasks and seek relief; that he is unable to sit, stand, or
walk for a combined six hours in an eight-hour day; and that the
remaining two hours of the day has to be spent lying down in an
effort to resolve the pain in his neck and back.

(Id.).

Plaintiff also argues that the ALJ erred in relying on the
December 13, 2011 consultative opinion of Dr. Richard Harris,
M.D. that Plaintiff is capable of performing light and sedentary

9

work.

(Tr. 378; Doc. 12 at 2).

Plaintiff argues that Dr.

Harris did not have the benefit of subsequent CT scans and MRIs
of

Plaintiff’s

spine

ordered

by

Dr.

Fitzgerald

after

the

February 2012 car accident. Thus, the ALJ should not have relied
on Dr. Harris’ opinions.

(Doc. 12 at 2).

The Commissioner counters that the medical evidence does
not support Dr. Fitzgerald’s opinions set forth in his letter
dated

May

8,

2013

as

the

opinions

expressed

therein

are

inconsistent with the substantial evidence in the case. Thus,
they were properly discredited by the ALJ.

(Doc. 15 at 5-7).

The Commissioner further contends that Dr. Harris’ opinions are
consistent with the substantial evidence in the case; thus, the
ALJ did not err in crediting them.

(Id. at 5, 8-9).

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).

10

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

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

physicians,

testimony

any

of

medical

good

cause

source

11

exists

when

it

to

is

discredit

contrary

to

the
or

unsupported by the evidence of record.

Phillips v. Barnhart,

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

“Good cause may also

exist

where

a

doctor’s

opinions

are

merely

conclusory,

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

Hogan v. Astrue, 2012 U.S.

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”
764

F.2d

834,

835

(11th

Cir.

1985)

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 support of Plaintiff’s argument that the ALJ erred in
assigning “very little weight” to Dr. Fitzgerald’s opinion that
Plaintiff’s “moderately severe to severe” back and neck pain
precludes him from working (Tr. 203, 590), Plaintiff points to
the

following

evidence

which

he

alleges

establishes

his

disability:
(1) For two years, from February 14, 2012, to February 6,
2014,8 Plaintiff was treated by Dr. Fitzgerald for depression and

8

It appears that the last treatment record that the ALJ reviewed
was Dr. Fitzgerald’s May 8, 2013 disability letter. (Tr. 202).
Additional treatment records from Dr. Fitzgerald were provided
to the Agency on February 11, 2014, seven months after the ALJ’s
decision on July 15, 2013.
(Id. at 681).
Nevertheless,
12

pain in his back, neck, ribs, and shoulders following a car
accident on February 13, 2012 (Tr. 469-750);
(2) On February 21, 2012, an MRI of Plaintiff’s thoracic
spine

showed

a

possible

nondisplaced

fracture

in

the

fourth

posterior right rib, a “small left paracentral protrusion at
T11-T12,”

and

a

possible

pulmonary

contusion

(id.

at

445)

(emphasis added);
(3) On June 12, 2012, an MRI of Plaintiff’s lumbar spine
showed

a

“mild

posterior

disc

bulge

with

a

small

right

paracentral component at L5-S1,” a “mild posterior disc bulge at
L4-L5,”

a

“probably

“minimal
mild

posterior

central

disc

protrusion

bulge
at

at

T11-12”

L3-L4,”
9

(id.

and
at

a

381)

(emphasis added);
(4) During the year and three months that Dr. Fitzgerald
treated Plaintiff before rendering his opinion that Plaintiff is
unable
revealed

to

work,

Dr.

“tenderness”

Fitzgerald’s
and

“muscle

examinations
spasms”

in

consistently
Plaintiff’s

cervical, thoracic, and lumbar spine, leading Dr. Fitzgerald to

Plaintiff’s new evidence has been considered by the Court, as
discussed herein.
9

CT scans of Plaintiff’s brain, head, face, chest, and cervical
spine taken on February 13, 2012 were completely normal, with
the exception of Plaintiff’s cervical spine scan, which showed
no fracture and only “mild narrowing of the disc space C5-C6
with posterior osteophytes,” and “bilateral foraminal narrowing”
(id. at 399-408) (emphasis added).

13

diagnose

Plaintiff

cervicalgia
conditions

(neck
with

with
pain).

thoracic
10

Dr.

intramuscular

and

lumbar

Fitzgerald

injections

sprain

treated

of

and
these

dexamethasone,

methotrexate sodium, and Decadron, as well as Lortab, Soma, and
Ibuprofen (id. at 470-510, 549-63, 577-86);
(5)

Dr.

Fitzgerald

also

referred

Plaintiff

for

physical

therapy for one month, resulting in a 30-40% improvement in his
overall condition, 11 and to a chiropractor for two months, also
resulting in consistent improvement 12 (id. at 449-67, 479, 484,
497, 510, 524, 530-35, 537, 540, 546).

Plaintiff reported no

interest in seeing a surgeon (id. at 506, 585);
(6)

Dr.

Fitzgerald

also

diagnosed

Plaintiff

with

10

Although Dr. Fitzgerald diagnosed Plaintiff with cervicalgia or
neck pain, his physical examinations frequently reflected normal
findings.
(Tr. 470, 474, 478, 482, 486, 490, 550, 554, 578,
583).

11

Plaintiff underwent physical therapy from February 27, 2012 to
March 23, 2012, for a total of eight sessions (Tr. 449-67), and
his treatment notes reflect that his ribs had healed and that
his physical therapy was going well initially; however,
Plaintiff subsequently complained that it was not helping. (Id.
at
452-59).
Plaintiff’s
physical
therapist
questioned
Plaintiff’s compliance with his home exercise program. (Id. at
455).
Dr. Fitzgerald instructed Plaintiff to continue with
physical therapy.
(Id. at 457).
On March 23, 2012, Plaintiff
reported a 30% improvement and discontinued treatment. (Id. at
459). Plaintiff subsequently reported to his chiropractor that
he had experienced a 40% improvement in physical therapy. (Id.
at 520).

12

The record reflects that Plaintiff saw a chiropractor from May
17, 2012, to July 27, 2012. (Tr. 518-46).

14

depression, for which he prescribed Paxil.
494-98).

Despite

this

diagnosis,

Dr.

(Id. at 490, 492,

Fitzgerald

frequently

noted “no anxiety,” “no depression,” and “no sleep disturbances”
or simply made no mention of symptoms of depression whatsoever.
(Id. at 469, 474, 478, 482, 486, 503, 577-78, 580-86).
Contrary to Plaintiff’s argument, this evidence does not
support Dr. Fitzgerald’s opinion that Plaintiff is unable to
work

because

Plaintiff’s

of

disabling

primary

pain.

medical

Indeed,

problem

(his

with
back

respect
pain),

to
the

evidence shows no more than “mild,” “small,” and “minimal” disc
bulges

at

T11-T12,

“tenderness”
Plaintiff

and

with

(cervicalgia)
pain

“muscle
thoracic

and

medication,

resulting

in

L3-L4,

spasms.”
and

treated
physical

significant

L4-L5,

him

lumbar
with

and
Dr.

L5-S1,

resulting

Fitzgerald

“sprain”

and

intramuscular

in

diagnosed
neck

pain

injections,

therapy,

and

chiropractic

improvement.

13

Plaintiff

care,
himself

expressed no desire to pursue more aggressive treatment, such as
surgery.

Other than his treatment at the emergency room on the

day of his car accident on February 13, 2012, which is also the
alleged

onset

date,

Plaintiff’s

13

medical

conditions

have

not

Plaintiff’s medical records contain frequent notations of
improvement in symptoms. (Tr. 453, 459, 520, 524, 530-35, 537,
540, 546, 578).

15

required

hospitalization

or

emergency

room

treatment.

14

Similarly, Plaintiff’s reports of symptoms of depression have
been infrequent and have required no treatment other than an
antidepressant

prescribed

by

his

primary

care

physician.

Curiously, on April 23, 2013, only two weeks before he rendered
his opinion that Plaintiff is unable to work, Dr. Fitzgerald
noted that Plaintiff was “improving well” from the injuries he
sustained to his back, neck, and shoulders in the February 2012
motor vehicle accident.

(Id. at 578).

All of these findings

are inconsistent with the severity of the opinions set forth in
the May 8, 2013 disability letter.

14

The record does contain emergency room treatment records prior
to Plaintiff’s alleged onset date of February 13, 2012.
In
2006, Plaintiff was treated in the emergency room after being
hit with a pipe during an altercation.
(Tr. 432).
X-rays of
his ribs, scapula, face, and hand were normal. (Id. at 434-40).
On November 7, 2009, and December 15, 2009, Plaintiff presented
to the emergency room with complaints of low back pain. On the
first occasion, the physical examination revealed muscle spasms
(id. at 431), and on the second occasion, it was normal.
(Id.
at 423-24, 430-31).
On both occasions, Plaintiff was given
Lortab and discharged.
(Id.).
A lumbar spine x-ray taken on
December 15, 2009, showed “mild” narrowing of the lumbosacral
interspace without significant arthritic change and “small”
upper lumbar anterior osteophytes. (Id. at 426-27). On July 9,
2010, Plaintiff presented to the emergency room with complaints
of chest and shoulder pain after a fall. (Id. at 358, 366-69).
X-rays revealed a possible nondisplaced fracture in two ribs.
(Id. at 359, 418). On March 10, 2011, Plaintiff was treated in
the emergency room for a foreign body in his eye. (Id. at 415).
On May 2, 2011, Plaintiff was treated in the emergency room
after a ladder fell on his back. X-rays showed a normal spine,
with the exception of “minimal” curvature in the lower thoracic
lumbar region. (Id. at 410, 413).

16

Plaintiff
substantial

also

weight

argues
to

the

that

the

ALJ

erred

December

13,

2011

in
15

assigning

opinion

of

consultative examiner, Dr. Rex Harris, M.D., that Plaintiff was
capable of performing light to sedentary work in the work place.
(Id. at 208, 378; Doc. 12 at 2-4).
Harris

based

examination

his

findings

opinion
and

on

x-rays

The record shows that Dr.
his

of

pre-accident

Plaintiff’s

lumbar

which showed no more than “mild” degenerative changes.
378).

physical
spine,
(Id. at

Plaintiff argues that Dr. Harris did not have the benefit

of the post-accident CT scans and MRIs; thus, the ALJ’s reliance
on Dr. Harris’ opinion was misplaced.

(Id.).

While Plaintiff is correct that Dr. Harris did not have the
benefit of the CT scans of Plaintiff’s brain, head, face, chest,
and

cervical

spine

or

the

MRIs

of

Plaintiff’s

thoracic

and

lumbar spine taken after the accident on February 21, 2012, the
results of those CT scans were completely normal (id. at 399408), with the exception of Plaintiff’s cervical spine scan,
which showed no fracture and only “mild” narrowing of disc space
at

C5-C6

with

posterior

narrowing (id. at 404-08).

osteophytes

and

bilateral

foraminal

In addition, the February 21, 2012

MRI of Plaintiff’s thoracic spine showed a possible nondisplaced
15

While there is some confusion as to the precise date of Dr.
Harris’ report, Defendant acknowledges that Dr. Harris’ report
was completed on December 13, 2011, not December 13, 2012.
(Doc. 15 at 2; Tr. 378).

17

fracture and a “small” left paracentral protrusion at T11-T12
(id. at 445), and the June 12, 2012, MRI of Plaintiff’s lumbar
spine showed “mild,” “small,” and “minimal” disc bulges at L3L4, L4-L5, L5-S1, and T11-12.

(Id. at 381).

Although Dr.

Harris did not have the benefit of these diagnostic tests when
he rendered his opinion that Plaintiff can perform light
sedentary

work,

none

of

these

tests

suggests

any

to

disabling

medical condition, nor do they contradict Dr. Harris’ opinion
that Plaintiff is capable of performing light to sedentary work.
Therefore, the ALJ properly assigned substantial weight to Dr.
Harris’ opinion.
Having reviewed the record at length, the Court finds that
the ALJ had good cause to reject Dr. Fitzgerald’s opinion that
Plaintiff’s “moderately severe to severe” back and neck pain
prevents

him

from

any

type

of

gainful

employment,

as

that

opinion is inconsistent with the substantial evidence in the
case.

In

addition,

the

Court

finds

that

the

ALJ

properly

assigned substantial weight to the opinion of Dr. Harris that
Plaintiff can perform light to sedentary work, as that opinion
is

consistent

Finally,
above,

the
that

assessment

with
Court

a

substantial

finds,

substantial

for

restrictions.

the

range

based

upon

evidence
of

light

(Id. at 205).

evidence
the

supports
work,

in

the

evidence
the
with

case.

detailed

ALJ’s
the

RFC

stated

Accordingly, Plaintiff’s claim

18

must fail.
B.

Whether the ALJ erred in applying the
three-part pain standard?

Next, Plaintiff argues that the ALJ erred in failing to
properly evaluate his complaints of pain.

(Doc. 12 at 5-6).

Specifically, Plaintiff argues that the ALJ ignored the postaccident

CT

treatment
which,

scans

records

Plaintiff

and

MRIs,

as

well

as

Dr.

use

of

pain

showing

frequent

argues,

satisfies

establishes his disability.

(Id.).

the

pain

Fitzgerald’s
medication,

standard

and

The Government counters

that the ALJ reasonably evaluated all of the evidence of record
(including Plaintiff’s subjective complaints of pain and postaccident x-rays, CT scans, and MRIs), that the ALJ identified
valid reasons for discounting Plaintiff’s subjective statements,
and

that

the

ALJ’s

credibility

substantial evidence.
reviewed

the

evaluation

(Doc. 15 at 10-12).

record

in

this

case,

the

is

supported

by

Having carefully
Court

finds

that

Plaintiff’s claim is without merit.
When
symptoms,

evaluating
the

statements,
persons,

and

ALJ

a

claim

considers

statements
evidence

by
of

based
medical

the
how

on

findings,

treating
the

disabling

pain

a

physician
(or

other

subjective
claimant’s
or

other

subjective

symptoms) affects the claimant’s daily activities and ability to
work.

20 C.F.R. § 416.929(a).

19

In a case where a claimant

attempts

to

establish

disability

through

his

or

her

own

testimony concerning pain or other subjective symptoms, a threepart standard applies.

That standard requires: “(1) evidence of

an underlying medical condition and either (2) objective medical
evidence that confirms the severity of the alleged

pain [or

other subjective symptoms] arising from that condition or (3)
that the objectively determined medical condition is of such a
severity that it can be reasonably expected to give rise to the
alleged

pain

[or

other

subjective

symptoms].”

Hubbard

v.

Commissioner of Soc. Sec., 348 Fed. Appx. 551, 554 (11th Cir.
2009) (unpublished) (quoting Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991)).

The Social Security regulations further

provide:
[S]tatements
about
your
pain
or
other
symptoms will not alone establish that you
are disabled; there must be medical signs
and laboratory findings which show that you
have a medical impairment(s) which could
reasonably be expected to produce the pain
or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity
and persistence of your pain or other
symptoms which may reasonably be accepted as
consistent
with
the
medical
signs
and
laboratory
findings),
would
lead
to
a
conclusion that you are disabled.
20 C.F.R. 404.1529(a) (2013).
“A

claimant’s

subjective

testimony

supported

by

medical

evidence that satisfies the pain standard is itself sufficient

20

to support a finding of disability.”
1553, 1561 (11th Cir. 1995).

Foote v. Chater, 67 F.3d

Stated differently, “if a claimant

testifies to disabling pain [or other subjective symptoms] and
satisfies

the

disabled

three

unless

part

that

pain

standard,

testimony

is

he

must

properly

be

found

discredited.”

Reliford v. Barnhart, 444 F. Supp. 2d 1182, 1186 (N.D. Ala.
2006).

Therefore, once the determination has been made that a

claimant has satisfied the three-part standard, the ALJ must
then turn to the question of the credibility of the claimant’s
subjective complaints.
(the

three-part

determination

standard

made

credibility.”).

See id., 444 F. Supp. 2d at 1189 n.1
“is

prior

designed

to

considering

be

a

the

threshold
plaintiff’s

If a claimant does not meet the standard, no

credibility determination is required.
In

to

assessing

a

claimant’s

Id.

credibility,

the

ALJ

must

consider all of the claimant’s statements about his symptoms and
determine the extent to which the symptoms can reasonably be
accepted as consistent with the objective medical evidence.

See

20

are

C.F.R.

§

404.1528.

Such

credibility

within the province of the ALJ.
1208, 1212 (11th Cir. 2005).
credit

a

claimant’s

determinations

Moore v. Barnhart, 405 F.3d

However, if an ALJ decides not to

testimony

about

his

or

her

subjective

symptoms, “the ALJ must articulate explicit and adequate reasons
for doing so or the record must be obvious as to the credibility

21

finding.”

Strickland v. Commissioner of Soc. Sec., 516 Fed.

Appx. 829, 832 (11th Cir. 2013) (unpublished) (citing Foote, 67
F.3d at 1562); see also Tieniber v. Heckler, 720 F.2d 1251, 1255
(11th Cir. 1983) (although no explicit finding as to credibility
is required, the implication must be obvious to the reviewing
court).

Failure

to

articulate

the

reasons

for

discrediting

testimony related to pain or other subjective symptoms requires,
as a matter of law, that the testimony be accepted as true.
Holt, 921 F.2d at 1223.
The Eleventh Circuit has held that the determination of
whether

objective

medical

impairments

could

reasonably

be

expected to produce the pain or other subjective symptoms is a
factual question to be made by the Secretary and, therefore,
“subject only to limited review in the courts to ensure that the
finding is supported by substantial evidence.”

Hand v. Heckler,

761 F.2d 1545, 1549 (11th Cir. 1985), vacated on other grounds
and reinstated sub nom., Hand v. Bowen, 793 F.2d 275 (11th Cir.
1986).

A reviewing court will not disturb a clearly articulated

credibility finding with substantial supporting evidence in the
record.

See Nye v. Commissioner of Social Sec., 524 Fed. Appx.

538, 543 (11th Cir. 2013) (unpublished).
Assuming
threshold
inasmuch

arguendo

three-part
as

the

that

pain

ALJ’s

Plaintiff

standard,

credibility

22

his

has

satisfied

claim

finding

is

still

the
fails

supported

by

substantial evidence in this case.

The ALJ found that, while

Plaintiff’s medically determinable impairments could be expected
to cause some of his alleged symptoms, his testimony regarding
the intensity, persistence, and limiting effects of his symptoms
was “not entirely credible” based on the inconsistency between
his testimony and the other record evidence.

(Id. at 206).

Specifically, the ALJ found Plaintiff’s allegations of disabling
pain to be inconsistent with the diagnostic tests in the record
(pre

and

post

demonstrated
symptoms;

accident

no

the

x-rays,

abnormalities

absence

of

CT

scans,

likely

evidence

and

MRIs)

to
an

of

cause

such

emotional

which
severe

component

likely to produce pain of a psychogenic nature; and the physical
examination findings in the record which failed to establish the
existence
muscle

of

neurological

atrophy,

or

other

deficits,
observable

significant
signs

weight

usually

loss,

associated

with protracted pain of the intensity, frequency, and severity
alleged.
As

(Id. at 207).
ALJ

found,

the

substantial

evidence

detailed

above

confirms that the diagnostic testing (pre and post accident xrays, CT scans, and MRIs) has revealed no more than “mild,”
“minimal,”

and

“small”

abnormalities

in

Plaintiff’s

spine

(resulting in a diagnosis of back “sprain”); that none of his
medical conditions has required hospitalization, or emergency
room visits; that Plaintiff’s examination findings have largely

23

shown no more than neck pain and stiffness and back “tenderness”
and “muscle spasms;” and that Plaintiff’s symptoms have improved
significantly

with

physical

therapy,

chiropractic

care,

injections, and medication.
On

the

other

hand,

Plaintiff

has

failed

to

direct

the

Court’s attention to objective medical evidence that confirms
the severity of his alleged pain, nor has he shown that his
medical

condition

is

of

such

a

severity

that

it

reasonably expected to give rise to the alleged pain.
921 F.2d at 1223.
well

documented

can

be

See Holt,

Though his subjective complaints of pain are

in

his

medical

records,

no

credible

medical

evidence suggests that his pain is of the disabling severity
claimed by Plaintiff herein.
After a careful review of the record, the Court finds that
the

ALJ’s

evidence

credibility

and

that

his

finding
reasons

is
for

supported

by

substantial

discrediting

Plaintiff’s

testimony were sufficiently articulated in the decision.
C.F.R. § 404.1529(c)(2)-(4); (Tr. 206-08).

See 20

As previously noted,

this Court may not decide the facts anew, reweigh the evidence,
or substitute its judgment but must accept the factual findings
of

the

Commissioner

where

they

are

supported

by

evidence and based upon the proper legal standards.

substantial
See Bridges

v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (“the findings and
decision

of

the

Secretary

are

24

conclusive

if

supported

by

substantial

evidence.”);

accord

Hand,

761

F.2d

at

1549.

Accordingly, Plaintiff’s claim must fail.
C.

Whether the
failing
to
additional
Plaintiff?

Appeals Council erred in
properly
consider
the
evidence
submitted
by

Last, Plaintiff argues that the Appeals Council erred in
failing

to

properly

consider

the

additional

evidence

submitted after the ALJ’s decision on July 15, 2013.
at

7-8).

Specifically,

additional

medical

Plaintiff

records

and

states

deposition

that

he

testimony

he

(Doc. 12
submitted
from

Dr.

Fitzgerald supporting Dr. Fitzgerald’s opinion set forth in the
May 8, 2013, disability letter, and the Appeals Council refused
to consider the additional evidence on the basis that it did not
relate to the time period in question.

(Id.; Tr. 591).

The

Commissioner counters that the Appeals Council did not err in
failing

to

cumulative

grant
of

notwithstanding

review

because

the

evidence

the

new

that

evidence

the
was

new

evidence

before

submitted

by

the

merely

ALJ

Plaintiff,

substantial evidence supports the ALJ’s decision.
13-15).

is

and,
the

(Doc. 15 at

Having carefully reviewed the record in this case, the

Court finds 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

25

(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.’”

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,

records

and

Appeals

Council,

Plaintiff

deposition
and

submitted

testimony

the

Appeals

from

subsequent

Dr.

Council

treatment

Fitzgerald
considered

to

the

the

new

evidence but found that it did not provide a basis for changing
the ALJ’s decision because it related to a later time.16

16

(Id. at

As Plaintiff points out, the Appeals Council found that the
additional evidence related to a later time and, thus, did not
26

1-2).

Plaintiff argues that the Appeals Council erred because

the following evidence related to the period in question and
would have changed the administrative outcome in this case: On
July 16, 2013, Dr. Fitzgerald testified in a deposition in a
civil action that Plaintiff has a ”bulging disc,” i.e., “bony
structures . . . [that] break down. . . [and] start impinging on
the nerve that’s coming out.”

(Id. at 625; Doc. 12 at 7-8).

Dr. Fitzgerald further testified, “you see these ligaments that
are here? They tear. That’s what this guy had. And when they
tear, then it allows these bones to come up and it destabilizes
the joint so that these bones can come up and ride into the
nerve.”

(Id.

at 629; Doc. 12 at 8).

Having reviewed the new evidence submitted by Plaintiff,
particularly

the

portion

highlighted

by

Plaintiff

above,

the

Court finds, as the Appeals Council found, that nothing in the
new evidence suggests that Plaintiff’s back and neck pain, or
any

other

Rather,

the

impairment
new

alleged

evidence

is,

by
for

Plaintiff,
the

most

is

disabling.

part,

merely

cumulative of that considered by the ALJ and reflects ongoing

provide a basis for changing the ALJ’s decision.
(Tr. 2).
Although Plaintiff is correct that some of the evidence does
relate to the period in question, that evidence does not provide
a basis for changing the ALJ’s decision, for the reasons
discussed herein.
Therefore, any error by the Appeals Council
in failing to grant review on the erroneous basis that none of
the evidence related to the time period in question is harmless.

27

treatment of the same medical conditions considered by the ALJ. 17
(Tr. 598-663).

In fact, each month from July 15, 2013, to

January 22, 2014, the new treatment notes reflect that Plaintiff
was “improving well.”
727,

731,

735,

740,

(Id. at 685, 689, 698, 703, 713, 721,
744).

In

addition,

Dr.

Fitzgerald’s

deposition testimony merely restates the opinions set forth in
the May 8, 2013 disability letter, which the ALJ had good cause
to discredit for the reasons already stated herein.
638).
not

(Id. at

For each of these reasons, the additional evidence would

have

changed

the

administrative

outcome.

Thus,

those

records do not warrant a remand for further consideration of the
evidence.

See Ingram v. Commissioner of Soc. Sec. Admin., 496

F.3d 1253, 1261-62 (11th Cir. 2007) (“[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.”); Caulder v. Bowen, 791 F. 2d 872, 877
(llth Cir. 1986) (new evidence is material if it is “relevant
and probative so that there is a reasonable possibility that it
would change the administrative outcome.”).

17

The Court notes that Dr. Fitzgerald testified that Plaintiff’s
reluctance to pursue surgical intervention was reasonable given
the high failure rate of back surgery.
(Tr. 633-34).
While
this new evidence explains for the first time why Plaintiff
chose physical therapy and chiropractic care over surgery, it
does not suggest that Plaintiff is disabled. Therefore, it does
not render the denial of benefits erroneous or warrant reversal.

28

Accordingly, Plaintiff’s claim must fail.
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 28th day of September, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

29