Wilson v. Colvin
MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying plaintiff benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 4/29/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 15-00428-N
MEMORANDUM OPINION AND ORDER
Social Security Claimant/Plaintiff Charles Wilson has brought this action
under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision
of the Defendant Commissioner of Social Security (“the Commissioner”) denying his
applications for disability insurance benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. § 401, et seq., and supplemental security income (“SSI”)
under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.
consent of the parties, the Court has designated the undersigned Magistrate Judge
to conduct all proceedings and order the entry of judgment in this civil action, in
accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D.
Ala. GenLR 73. (See Docs. 17, 18).
Upon consideration of the parties’ briefs (Docs. 12, 13, 14) and the
administrative record (Doc. 11) (hereinafter cited as “(R. [page number(s) in lowerright corner of transcript])”),1 the Court finds that the Commissioner’s decision is
With the Court’s consent, the parties jointly waived the opportunity for oral argument.
(See Docs. 16, 19).
due to be AFFIRMED.
On April 19, 2012, Wilson filed applications for DIB and SSI with the Social
Security Administration (“SSA”),2 both alleging disability beginning February 1,
(R. 59). After his applications were initially denied, Wilson requested a
hearing, which was held before an Administrative Law Judge (“ALJ”) for the SSA
on September 30, 2013.
On January 31, 2014, the ALJ issued an
unfavorable decision on Wilson’s applications, finding him “not disabled” under the
Social Security Act. (See R. 56 – 72).
Wilson requested review of the ALJ’s decision by the Appeals Council for the
SSA’s Office of Disability Adjudication and Review, also submitting new evidence
for the Council’s consideration.
The Commissioner’s decision on Wilson’s
applications became final when the Appeals Council denied Wilson’s request for
review on June 25, 2015. (R. 1 – 6). On August 21, 2015, Wilson filed this action
under §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner’s final
The Social Security Act’s general disability insurance benefits program provides
income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C.
§ 423(a). The Social Security Act’s Supplemental Security Income is a separate and
distinct program. SSI is a general public assistance measure providing an
additional resource to the aged, blind, and disabled to assure that their income does
not fall below the poverty line. Eligibility for SSI is based upon proof of indigence
and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C).
“For SSI claims, a claimant becomes eligible in the first month where she is both
disabled and has an SSI application on file. 20 C.F.R. § 416.202–03 (2005). For
DIB claims, a claimant is eligible for benefits where she demonstrates disability on
or before the last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005).”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
decision. (Doc. 1). See 42 U.S.C. § 405(g) (“Any individual, after any final decision
of the Commissioner of Social Security made after a hearing to which he was a
party, irrespective of the amount in controversy, may obtain a review of such
decision by a civil action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the Commissioner of Social
Security may allow.”); 42 U.S.C. § 1383(c)(3) (“The final determination of the
Commissioner of Social Security after a hearing [for SSI benefits] shall be subject to
judicial review as provided in section 405(g) of this title to the same extent as the
Commissioner’s final determinations under section 405 of this title.”); Ingram v.
Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law
of this Circuit is that a court may review, under sentence four of section 405(g), a
denial of review by the Appeals Council.”).
Standard of Review
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is
‘ “supported by substantial evidence and based on
proper legal standards. Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d
1436, 1439 (11th Cir. 1997))). However, the Court “ ‘may not decide the facts anew,
reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ”
Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8
(11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983))). “ ‘Even if the evidence preponderates against the
[Commissioner]’s factual findings, we must affirm if the decision reached is
supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
conduct a de novo proceeding, nor to rubber stamp the administrative decisions that
come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”). “In determining whether substantial evidence exists, [a
court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Moreover, “[t]here is no presumption…that the Commissioner followed the
appropriate legal standards in deciding a claim for benefits or that the legal
conclusions reached were valid.
Instead, [the court] conduct[s] ‘an exacting
examination’ of these factors.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996)
(per curiam) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990))
(internal citation omitted).
In sum, courts “review the Commissioner’s factual
findings with deference and the Commissioner’s legal conclusions with close
scrutiny.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (“In Social Security
appeals, we review de novo the legal principles upon which the Commissioner's
decision is based. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). However, we
review the resulting decision only to determine whether it is supported by
substantial evidence. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158–59
(11th Cir. 2004).”). “ ‘The [Commissioner]'s failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the
proper legal analysis has been conducted mandates reversal.’ ” Ingram, 496 F.3d at
1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)).
Eligibility for DIB and SSI requires that the claimant be disabled. 42
U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if she is
unable “to engage in any substantial gainful activity by reason of a
medically determinable physical or mental impairment ... 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), 1382c(a)(3)(A).
Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 609 (11th Cir. Feb. 11,
2015) (per curiam) (unpublished).4
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
In this Circuit, “[u]npublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014). See also
Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).5
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has satisfied this initial burden, the
examiner must consider four factors: (1) objective medical facts or clinical findings;
(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the
claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983) (per curiam)).
“These factors must be considered both singly and in
combination. Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves
that he or she has a qualifying disability and cannot do his or her past relevant
work, it then becomes the Commissioner’s burden, at Step Five, to prove that the
claimant is capable—given his or her age, education, and work history—of engaging
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual
steps of this five-step sequential evaluation.
in another kind of substantial gainful employment that exists in the national
economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler,
764 F.2d 834, 836 (11th Cir. 1985).
Finally, but importantly, although the
“claimant bears the burden of demonstrating the inability to return to [his or] her
past relevant work, the Commissioner of Social Security has an obligation to
develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.
In determining whether a
claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
Where, as here, the ALJ denied benefits and the Appeals Council denied
review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the [Appeals
Council] has denied review, [the Court] will look only to the evidence actually
presented to the ALJ in determining whether the ALJ’s decision is supported by
substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). If the
applicant attacks only the ALJ’s decision, the Court may not consider evidence that
was presented to the Appeals Council but not to the ALJ. See id. at 1324.
Claims on Judicial Review
1. “The ALJ erred in rejecting the opinion of the treating physician, Roseanne
Cook, M.D., and the opinion of the consultative examiner, Huey Kidd, D.O.”
2. “The ALJ failed to consider [Wilson’s] impairments in combination.”
3. “The ALJ failed to properly apply the three-prong pain standard.”
(Doc. 13 at 1).
At Step One, the ALJ determined that Wilson was insured through December
31, 2014, and had “not engaged in substantial gainful activity since February 1,
2012, the alleged [disability] onset date…”
At Step Two, the ALJ
determined that Wilson had the following severe impairments: morbid obesity,
mild-to-moderate osteoarthritic changes, bilateral knees, lumbago, and diabetes.
(R. 61 – 63). At Step Three, the ALJ found that Wilson did not have an impairment
or combination of impairments that meets or equals the severity of one of the
specified impairments in the relevant Listing of Impairments. (R. 63 – 64).
At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“RFC”); and (2) the claimant's ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the
regulations define RFC as that which an individual is still able to do
despite the limitations caused by his or her impairments. 20 C.F.R. §
404.1545(a). Moreover, the ALJ will “assess and make a finding about
[the claimant's] residual functional capacity based on all the relevant
medical and other evidence” in the case. 20 C.F.R. § 404.1520(e).
Furthermore, the RFC determination is used both to determine
whether the claimant: (1) can return to her past relevant work under
the fourth step; and (2) can adjust to other work under the fifth
step…20 C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past
relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past relevant
work, the ALJ must determine the claimant's RFC using all relevant
medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That
is, the ALJ must determine if the claimant is limited to a particular
work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the
claimant’s RFC and determines that the claimant cannot return to her
prior relevant work, the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ determined that Wilson had the RFC “to perform light work as
defined in 20 CFR 404.1567(b) except [Wilson] can sit at least three hours without
interruption and a total of at least six hours over the course of an eight-hour
workday[;] can stand and or [sic] walk a total of two hours combined over the course
of an eight-hour workday[;] does not suffer any manipulative limitations[;] can
occasionally use his lower extremities for pushing, pulling, and the operation of
controls[;] cannot climb ladders, ropes, scaffolds, or poles[;] can occasionally climb
ramps and stairs[;] can occasionally stoop[;] can occasionally balance, crouch, and
kneel[;] cannot crawl[;] can occasionally work in extreme cold[;] can occasionally
work in wetness[;] cannot work in humidity, or extreme heat[;] can occasionally
work in dusts, gases, fumes, and odors[;] cannot work in poorly ventilated areas[;]
cannot work at unprotected heights[;] cannot work with operating hazardous
machinery[;] can occasionally operate motorized vehicles[;] can occasionally work
while exposed to vibration[;] can at least perform simple, routine, and repetitive
work activity, as well as attend all customary work pressures over the course of an
eight-hour workday with the following exceptions[;] can perform production rate
work; however, the claimant cannot perform work activity that requires his
response to rapid and/or frequently multiple demands[; and c]hanges in [his] work
activity and work setting must be infrequent and gradually introduced.” (R. 64).
Based on this RFC, the ALJ determined that Wilson was unable to perform any
past relevant work. (Doc. 70). At Step Five, the ALJ then determined that there
exist significant numbers of jobs in the national economy that Wilson can perform
given his RFC, age, education, and work experience. (R. 71 – 72). Thus, the ALJ
found that Wilson was not disabled under the Social Security Act. (R. 72).
Claim 1 (Dr. Cooke and Dr. Kidd’s Opinions)
determination may include medical opinions. See 20 C.F.R. §§ 404.1527(a)(2) &
416.927(a)(2). “ ‘Medical opinions are statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the nature and
severity of [the claimant's] impairment(s), including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and
[the claimant's] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79
(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).
“There are three tiers of
medical opinion sources: (1) treating physicians; (2) nontreating, examining
physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of
Soc. Sec., 585 F. App'x 758, 762 (11th Cir. Sept. 26, 2014) (per curiam)
(unpublished) (citing 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2)).
assessing medical opinions, the ALJ must consider a number of factors in
determining how much weight to give to each medical opinion, including (1)
whether the physician has examined the claimant; (2) the length, nature, and
extent of a treating physician's relationship with the claimant; (3) the medical
evidence and explanation supporting the physician’s opinion; (4) how consistent the
physician’s opinion is with the record as a whole; and (5) the physician’s
These factors apply to both examining and non-examining
physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523 (11th Cir.
Sept. 30, 2014) (per curiam) (unpublished) (internal citations and quotation marks
omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)).
The ALJ “may reject the opinion of any physician when the evidence supports
a contrary conclusion.” Bloodsworth, 703 F.2d at 1240. Accord, e.g., Anderson v.
Comm'r of Soc. Sec., 427 F. App'x 761, 763 (11th Cir. 2011) (per curiam)
the ALJ must state with particularity the weight given to different
medical opinions and the reasons therefor. Sharfarz v. Bowen, 825
F.2d 278, 279 (11th Cir. 1987) (per curiam). “In the absence of such a
statement, it is impossible for a reviewing court to determine whether
the ultimate decision on the merits of the claim is rational and
supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d 731,
735 (11th Cir. 1981). Therefore, when the ALJ fails to “state with at
least some measure of clarity the grounds for his decision,” we will
decline to affirm “simply because some rationale might have supported
the ALJ's conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516 (11th
Cir.1984) (per curiam). In such a situation, “to say that [the ALJ’s]
decision is supported by substantial evidence approaches an abdication
of the court's duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational.” Cowart, 662 F.2d at 735
(quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979))
(internal quotation marks omitted).
Winschel, 631 F.3d at 1179.
“A ‘treating source’ (i.e., a treating physician) is a claimant's ‘own physician,
psychologist, or other acceptable medical source who provides, or has provided,[
the claimant] with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].’ ” Nyberg v. Comm'r of Soc.
Sec., 179 F. App'x 589, 591 (11th Cir. May 2, 2006) (per curiam) (unpublished)
(quoting 20 C.F.R. § 404.1502). “Absent ‘good cause,’ an ALJ is to give the medical
opinions of treating physicians ‘substantial or considerable weight.’ ” Winschel, 631
F.3d at 1179 (quoting Lewis, 125 F.3d at 1440). That is so because treating sources
are likely in a better position “to provide a detailed, longitudinal picture of [a
claimant’s] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings alone
or from reports of individual examinations, such as consultative examinations or
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
exists ‘when the: (1) treating physician’s opinion was not bolstered by the evidence;
(2) evidence supported a contrary finding; or (3) treating physician's opinion was
conclusory or inconsistent with the doctor’s own medical records.’ With good cause,
an ALJ may disregard a treating physician's opinion, but he ‘must clearly articulate
[the] reasons’ for doing so.” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d
at 1240-41) (internal citation omitted). See also, e.g., Bloodsworth, 703 F.2d at 1240
(“[T]he opinion of a treating physician may be rejected when it is so brief and
conclusory that it lacks persuasive weight or where it is unsubstantiated by any
clinical or laboratory findings. Further, the Secretary may reject the opinion of any
physician when the evidence supports a contrary conclusion.” (citation omitted)).
In evaluating Wilson’s applications, the ALJ considered medical records and
opinions from treating physician Dr. Roseann Cook and from consultative
examining physician Dr. Huey Kidd. The ALJ summarized Dr. Cook’s records and
opinions as follows:
Records from the claimant’s treating physician, Roseann Cook, M.D.,
in February of 2012 reflect treatment for uncontrolled diabetes,
hypertension and knee pain (Exhibit B2F/p.11). The record indicated
the claimant stood 6’1” tall, weighed 313 pounds with a body mass
index over 40 (Id. at p.2). A care plan was developed and he was
treated conservatively with medication. The following month his
diabetes mellitus was controlled. At that time, he was diagnosed with
hypertension, obesity and osteoarthritis (Id. at p.39). The claimant
received one among several other injections to his knee joint at that
The medical evidence showed periodic treatment for the claimant’s
physical impairments throughout the remainder of the 2012-year
(Exhibit B9F). In January of 2013, his treating physician, Dr. Cook
assessed the claimant with morbid obesity, symptomatic backache,
improved hypertension, and improved diabetes mellitus (Exhibit
B9F/p.21). A few months later in May of 2013, she noted the claimant
weighed 318 pounds with a BMI of 41.95 that his morbid obesity was
worse, and counseled the claimant about his diet (Id. at p.10). Most
notably, she advised the claimant to exercise three times per week.
His blood pressure was 124/87, which marked continued improvement.
She assessed the claimant with morbid obesity, diabetes mellitus,
uncomplicated and improved. Dr. Cook further diagnosed him with
polyneuropathy in diabetes and symptomatic disturbance in vision.
Dr. Cook … completed a Medical Source Statement on September 19,
2013 that significantly disabled the claimant based on lumbago,
osteoarthritis and morbid obesity … Most notably she indicated the
claimant could not perform pushing and pulling movement (arm
and/or leg controls); climbing (stairs or ladders) and balancing; operate
a motor vehicle or work with or around hazardous machinery. Dr.
Cook further indicated the claimant’s impairments or treatment would
cause him to be absent from work more than three times a month.
(R. 66 – 68).
Fulfilling the requirement that he “state with particularity the weight given
to [Dr. Cook’s] medical opinions and the reasons therefor[,]” Winschel, 631 F.3d at
1179, the ALJ “afford[ed] little weight to Dr. Cooks’ [sic] conclusions[,]” explaining
The undersigned finds Dr. Cook’s statements are simply not consistent
with her own record for the claimant not to mention the other evidence
of record. There was no evidence found to suggest the claimant had
disabling back pain. At the Dr. Cook [sic] most recent and last
examination of the claimant in May of 2013, she did not diagnosed [sic]
the claimant with two of the conditions (lumbago and osteoarthritis)
she claimed in the medical source statement disables the claimant.
Additionally, the Dr. Cook’s [sic] treatment records do not reflect that
she ordered x-rays or a MRI of the claimant back [sic]; however, she
concluded this to be a disabling impairment.
The undersigned notes that the consultative examiner [Dr. Kidd]
whom thought the claimant was disabled because of his knees, made
no mention of any back problems (Exhibit B4F). Moreover, the
claimant did not report any back problems to the consultant examiner.
Nevertheless, Dr. Cook concluded that the claimant could not sit for an
hour. She ruled out the use of his arms for pulling, pushing, but there
is no evidence to suggest any manipulative limitation, especially if the
claimant is seated. Dr. Cook also made contradicting statements on
the Clinical Assessment of Pain form wherein she indicated medication
would aid in reducing pain with no side effects or reduction in level of
functioning; however, she conveyed in the same form that the
claimant’s pain prevented him from maintaining attention,
The ALJ essentially repeats this summary of Dr. Cook’s Medical Source Statement later
in his decision, with some insubstantial variations. (See R. 69). Indeed, in what appears to
be a case of poor editing, the ALJ’s decision essentially contains two versions of its
discussion of Dr. Cook and Dr. Kidd’s medical record and opinions. However, the
differences between the two versions are largely stylistic, and they do not contradict each
other. Wilson has not asserted error on the basis of the ALJ’s editing prowess vel non, and
the Court is sufficiently able to follow the ALJ’s reasoning. In quoting relevant sections of
the ALJ’s decision, the Court has made reasonable efforts to avoid including duplicative
concentration, or pace for periods of at least two hours. Dr. Cook’s
findings in the Medical Source Statement and Clinical Assessment of
Pain for the claimant are not supported by her treatment records of the
claimant or by the other evidence of record.
… The undersigned also finds it interesting that although Dr. Cook
opined the claimant could not work due to lumbago, osteoarthritis and
morbid obesity yet she made no mention of a vision or hearing
impairment for the claimant.
Dr. Cook apparently relied quite heavily on the subjective report of
symptoms and limitations provided by the claimant, and seemed to
uncritically accept as true most, if not all, of what the claimant
reported. Yet, as explained elsewhere in this decision, there exist good
reasons for questioning the reliability of the claimant’s subjective
complaints. As such, the undersigned … finds no reason why the
claimant cannot perform sedentary work.
(R. 66 – 70).
Wilson presents three arguments why the ALJ erroneously discounted Dr.
Cook’s opinions: (1) the ALJ mischaracterized Dr. Cook’s opinion as being based
entirely on Wilson’s lumbago (i.e. lower back pain) and did not consider the
impairments that Dr. Cook’s opinions asserted were disabling – lumbago,
“misrepresented” Dr. Cook’s May 2013 treatment notes as being from her “last
examination” of Wilson and as not containing indications of lumbago or
osteoarthritis; and (3) Dr. Cook’s opinions are bolstered by those of Dr. Kidd.
Having considered these arguments, the Court finds that substantial evidence
supports the ALJ’s decision to assign “little weight” to Dr. Cook’s opinions.
As set forth above, the ALJ noted specific examples of how Dr. Cook’s
opinions were both internally inconsistent and inconsistent with other record
evidence. While the strength of these inconsistencies as good cause to reject the
opinion is debatable standing alone, the ALJ also observed that Dr. Cook
“apparently relied quite heavily on the subjective report of symptoms and
limitations provided by the claimant, and seemed to uncritically accept as true
most, if not all, of what the claimant reported.”
Wilson fails to address this
additional reason for discounting Dr. Cook’s opinion, which also constitutes good
cause to reject a treating physician’s opinion. See Freeman v. Barnhart, 220 F.
App’x 957, 960 (11th Cir. Mar. 23, 2007) (per curiam) (unpublished) (one “factor
that may weigh in favor of discounting a treating physician’s opinion” is “when the
opinion appears to be based primarily on the claimant’s subjective complaints of
pain.” (citing Crawford, 363 F.3d at 1159); Costigan v. Comm'r, Soc. Sec. Admin.,
603 F. App'x 783, 788 (11th Cir. Feb. 26, 2015) (per curiam) (unpublished)
(“Substantial evidence supports the ALJ’s stated reasons, first, because the
[treating ]physician’s opinion did not appear to be based on any objective medical
evidence, such as medically acceptable clinical diagnostic techniques or laboratory
findings, and, second, no such evidence was part of the record before the ALJ. See
Crawford, 363 F.3d at 1158; Lewis, 125 F.3d at 1440. Instead, he provided only
conclusory statements that certain activities would aggravate Costigan’s chronic
neck and low back pain or based his findings on Costigan’s self-reports of
symptoms.”); Markuske v. Comm'r of Soc. Sec., 572 F. App'x 762, 766 n.3 (11th Cir.
July 17, 2014) (per curiam) (unpublished) (“ ‘A treating physician’s report may be
discounted when it is not accompanied by objective medical evidence or is wholly
conclusory.’ Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004)
(quotation marks omitted). Thus, an ALJ may discount a treating physician’s
opinion where it ‘appears to be based primarily on [the claimant’s] subjective
complaints of pain.’ Id.”). As the Commissioner correctly notes in her brief, Dr.
Cook answered “no” when asked on the opinion form if her “diagnoses in this case
[were] confirmed by objective medical findings[,]” (R. 461), and the ALJ noted that
Dr. Cook did not attempt to support her opinions by ordering x-rays or an MRI (R.
68 – 69). Taken together, the ALJ’s articulated reasons for discounting Dr. Cook’s
opinions are supported by substantial evidence.
Wilson asserts that Dr. Cook’s opinions are bolstered by those of consultative
examiner Dr. Kidd. However, the ALJ did not err in assigning only limited weight
to Dr. Kidd’s opinion. The ALJ summarized Dr. Kidd’s records and opinions as
Consultant examiner, Huey Kidd, D.O. evaluated the claimant June
27, 2012 and the claimant reported no problems with his back to the
consultant. Dr. Kidd noted the claimant was 6 feet tall, weighed 304
pounds with a BMI of 41.2 (Exhibit B4F). His blood pressure was
144/90. The claimant [sic] vision bilaterally without correction was
20/40, right eye 20/50 and left eye 20/70. His lungs were clear and he
had a regular, rhythm and rate of the heart. Dr. Kidd described the
claimant as morbidly obese. The examination revealed he had full
range of motion and 5/5 strength of the lower extremities. Dr. Kidd
indicated the claimant had osteoarthritic changes on physical
examination. He conveyed the claimant’s knee was quite enlarged and
bowing inwardly. Dr. Kidd’s [sic] found the claimant to be morbidly
obese, hypertension, diabetes, significant right knee pain with lively
A review of Dr. Kidd’s report indicates that the ALJ likely meant to say “likely” instead of
“lively severe osteoarthritis.” (See R. 392).
severe osteoarthritis. He opined it would be very difficult for the
claimant to work due to his knee problem. Dr. Kidd made no mention
and noted no problems with the claimant’s back. A couple of months
after Dr. Kidd’s [sic] provided his disabling opinion due to the
claimant’s knee, he reviewed the x-rays of the claimant’s knee that
revealed normal joint spaces bilaterally and mild to moderate
osteoarthritic changes (Exhibit B7F).
Consultant examiner, Dr. Kidd found the claimant to be morbidly
obese, hypertension, diabetes, significant right knee pain, lively[ 8 ]
severe osteoarthritis. He opined it would be very difficult for the
claimant to work. He provided this opinion prior to the review of xrays of the claimant’s knees. A couple of months later, Dr. Kidd
reviewed x-rays of the claimant’s knees and they revealed normal joint
spaces bilaterally with only mild to moderate osteoarthritic changes
seen in both knees (Exhibit B7F) …
(R. 66 – 67, 69).9
Fulfilling the requirement that he “state with particularity the weight given
to [Dr. Kidd’s] medical opinions and the reasons therefor[,]” Winschel, 631 F.3d at
1179, the ALJ “provide[d] some weight to Dr. Kidd’s opinion that he based on the
findings of his examination[,]” explaining as follows:
[T]he undersigned notes x-rays results of the claimant’s knees taken
two months later usurp Dr. Kidd’s prior disabling opinion. The x-rays
as read by Dr. Kidd showed only mild to moderate osteoarthritic
changes [sic] as such, the undersigned concludes based on the
radiographic evidence the claimant’s knee condition is not disabling.
As such, the undersigned concludes the radiographic findings do not
support Dr. Kidd’s original disabling conclusion for the claimant.
Additionally, the undersigned notes the claimant is under 50 years of
age and Dr. Kidd never considered sedentary work for the claimant.
Based on the x-rays and other evidence of record, the undersigned
affords some weight to Dr. Kidd’s opinion; however, for the reason
See supra, n.7
Dr. Kidd also noted that Wilson was unable to heel walk, toe walk, squat, stand, or bend
and touch his toes. (R. 392).
previously mention great weight is not afforded to his opinion, as it is
not consistent with the record as a whole.
(R. 67, 69).
As the ALJ correctly noted, Dr. Kidd’s finding of “likely severe osteoarthritis”
at his examination of Wilson was not bolstered by his own subsequent review of
Wilson’s x-rays.10 Moreover, his brief, general opinion that “it will be very difficult
for this gentleman to work” (R. 392) does not rule out Wilson’s ability to do any
work. Thus, the ALJ’s complaint that Dr. Kidd “never considered sedentary work”
Finally, Dr. Kidd’s opinion was on an issue reserved for the
Commissioner. See 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1) (“A statement by a
medical source that you are … ‘unable to work’ does not mean that we will
determine that you are disabled[,]” as such statements are “not medical opinions, …
but are, instead, opinions on issues reserved to the Commissioner because they are
administrative findings that are dispositive of a case; i.e., that would direct the
determination or decision of disability.”). Such an opinion, even from a treating
source, is “never entitled to controlling weight or special significance.” SSR 96-5P,
1996 WL 374183 (S.S.A. July 2, 1996).
Though Wilson argues that Dr. Kidd’s
assessment “noted medical signs and findings of osteoarthritis, including an
enlarged joint and inward bowing[,]” and was based on “a thorough personal
examination” (Doc. 13 at 8), substantial evidence supports the ALJ’s decision to
assign only some weight to Dr. Kidd’s opinion. See Ingram, 496 F.3d at 1260 (“Even
Even Wilson acknowledges that Dr. Kidd only “suspected” severe osteoarthritis prior to
viewing the x-rays. (See Doc. 13 at 8). The fact that Dr. Kidd apparently felt the need to
confirm this assessment by ordering x-rays further evidences the tentative nature of his
if the evidence preponderates against the Commissioner’s factual findings, we must
affirm if the decision reached is supported by substantial evidence.” (quotation
Accordingly, the Court OVERRULES Wilson’s assertions of error in Claim 1.
Claim 2 (Evaluating Impairments in Combination)
Wilson asserts in Claim 2 that the ALJ failed to evaluate his impairments in
combination. This claim is meritless under long-standing Circuit precedent. At
Step Three, the ALJ expressly stated that Wilson “does not have a impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments in” the relevant listing. (R. 63). At Step Four, the ALJ
stated that he had “considered all symptoms” in determining Wilson’s RFC. (R. 64).
Though Wilson complains that such a statement “fail[s] to provide any comparative
analysis of his severe impairments or their aggregate effect on his abilities[,]” the
Commissioner correctly points out that such statements “constitute evidence that
[the ALJ] considered the combined effects of Wilson’s impairments.”
Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam) (citing Jones v. Dept. of
Health and Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991) (per curiam)
(holding that the following statement by an ALJ evidenced consideration of the
combined effect of a claimant's impairments: while “[the claimant] has severe
residuals of an injury to the left heel and multiple surgeries on that area, [the
claimant does not have] an impairment or combination of impairments listed in, or
medically equal to one listed in Appendix 1, Subpart P, Regulation No. 4.”
Accord Tuggerson-Brown v. Comm'r of Soc. Sec., 572 F.
App'x 949, 951-52 (11th Cir. July 24, 2014) (per curiam) (unpublished) (“In Wilson,
the ALJ acknowledged that Wilson suffered multiple injuries and then stated that
he ‘did not have an impairment or combination of impairments’ that equaled a
listing. 284 F.3d at 1224 (emphasis omitted). We held that statement was sufficient
to demonstrate that the ALJ considered the cumulative effect of the applicant's
impairments. Id. at 1224–25 … Despite Tuggerson–Brown's arguments to the
contrary, it is apparent from the face of the ALJ’s decision and the RFC report
relied upon by the ALJ that the ALJ did, in fact, consider all medical evidence in
combination in concluding that Tuggerson–Brown was not disabled. In performing
his analysis, the ALJ stated that he evaluated whether Tuggerson–Brown had an
‘impairment or combination of impairments’ that met a listing and that he
considered ‘all symptoms’ in determining her RFC. Under our precedent, those
statements are enough to demonstrate that the ALJ considered all necessary
evidence. See Wilson, 284 F.3d at 1224–25.”).
Indeed, “[t]he ALJ went beyond those statements in his analysis, specifically
discussing evidence of [Wilson]’s [knee impairment, obesity, and diabetes].
RFC report likewise addressed many of the same symptoms.
record sufficiently demonstrates that the ALJ properly considered all of [Wilson]’s
impairments, even those not specifically found to be severe, in reaching a conclusion
that he was not disabled. [Wilson] does not specifically challenge or assert [in
Claim 2] that the ALJ’s ultimate conclusion was not based on substantial evidence
in some other regard …” Tuggerson-Brown, 572 F. App'x at 952. Accordingly, the
Court OVERRULES Wilson’s assertions of error in Claim 2.
Claim 3 (“Pain Standard”)
Claim 3 purports to assert errors in the ALJ’s application of the three-part
“pain standard,” which applies when a claimant attempts to establish disability
through his own testimony about his subjective symptoms. E.g., Wilson, 284 F.3d at
1225.11 While Wilson prefaces this claim with case law generally discussing the
“pain standard,” his substantive analysis simply argues additional reasons why the
ALJ was wrong to reject Dr. Kidd’s opinion. The Court has factored this additional
argument into its discussion of Claim 1, see supra.
Because Wilson offers no
substantive discussion of how the ALJ improperly applied the “pain standard,” the
Court OVERRULES his assertions of error in Claim 3.
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s June 25, 2015 final decision denying Wilson’s applications for DIB
and SSI benefits is AFFIRMED under 42 U.S.C. §§ 405(g) and 1383(c)(3).
“The pain standard requires: ‘(1) evidence of an underlying medical condition; and (2)
either (a) objective medical evidence confirming the severity of the alleged pain; or (b) that
the objectively determined medical condition can reasonably be expected to give rise to the
claimed pain.’ [Wilson, 284 F.3d at 1225]. If the ALJ determined that the claimant has a
medically determinable impairment that could reasonably be expected to produce the pain
or other symptoms, then the ALJ evaluates the extent to which the intensity and
persistence of those symptoms limit her ability to work. 20 C.F.R. § 404.1529(b). At this
stage, the ALJ considers the claimant’s history, the medical signs and laboratory findings,
the claimant's statements, statements by treating and nontreating physicians, and other
evidence of how the pain affects the claimant’s daily activities and ability to work. Id. §
404.1529(a).” McMahon v. Comm'r, Soc. Sec. Admin., 583 F. App'x 886, 893 (11th Cir. Sept.
24, 2014) (per curiam) (unpublished)
Final judgment shall issue separately in accordance with this Order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 29th day of April 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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