Stork v. Commissioner of Social Security
Filing
25
OPINION AND ORDER affirming the decision of the Commissioner. The Clerk is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 9/16/2016. (JTM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
VICKI STORK,
Plaintiff,
v.
Case No: 2:15-cv-331-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause is before the Court on Plaintiff Vicki Stork’s Complaint (Doc. 1) filed on June
1, 2015. Plaintiff seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying her claim for a period of disability, disability
insurance benefits, and supplemental security income. The Commissioner filed the Transcript of
the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number), and
the parties filed legal memoranda in support of their positions. For the reasons set out herein, the
decision of the Commissioner is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
I.
Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A. Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do her previous work, or any
other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3)(B); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911.
B. Procedural History
On March 10, 2008, Plaintiff filed applications for disability insurance benefits and
supplemental security income asserting an onset date of March 24, 2007. (Tr. at 338, 342).
Plaintiff’s applications were denied initially on May 8, 2008 and on reconsideration on July 9,
2008. (Tr. at 170-73). Hearings were initially held before an Administrative Law Judge (“ALJ”)
Scott A. Tews on March 17, 2010 and July 23, 2010. (Tr. at 126-45, 146-69). ALJ Tews issued
an unfavorable decision on August 13, 2010. (Tr. at 174-93). On July 16, 2012, the Appeals
Council granted Plaintiff’s request for review of the ALJ’s decision, vacated the hearing
decision, and remanded the case for reconsideration of medical evidence. (Tr. at 194-98). An
additional hearing was held before ALJ M. Dwight Evans on July 1, 2013. (Tr. at 33-101). ALJ
Evans found Plaintiff not to be under a disability from March 24, 2007 through the date of the
decision. (Tr. at 26).
On April 17, 2015, the Appeals Council denied Plaintiff’s request for review. (Tr. at 16). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on June 1, 2015.
Defendant filed an Answer (Doc. 14) on September 8, 2015. Both parties filed memoranda in
support of their positions. (Docs. 23, 24). The parties consented to proceed before a United
States Magistrate Judge for all proceedings. (See Doc. 18). This case is ripe for review.
C. Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Social Security, 542 F. App’x 890, 891
2
(11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must
determine whether the claimant: (1) is performing substantial gainful activity; (2) has a severe
impairment; (3) has a severe impairment that meets or equals an impairment specifically listed in
20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform past relevant work; and (5) can
perform other work of the sort found in the national economy. Packer, 542 F. App’x at 891
(citing 20 C.F.R. § 404.1520; Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th Cir. 2004)).
The claimant has the burden of proof through step four and then the burden shifts to the
Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913, 915 n.2
(11th Cir. 2013).
In this case, the ALJ found that Plaintiff met the insured status requirements through
December 31, 2012. (Tr. at 16). At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since March 27, 2007, the alleged onset
date. (Tr. at 16). At step two, the ALJ found that Plaintiff suffered from the following severe
impairments: headaches, left shoulder pains, left arm pains, back pains, and status-post breast
cancer removal. (Tr. at 16). At step three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (Tr. at 20).
Based on the evidence, the ALJ determined that Plaintiff had the residual functional
capacity (“RFC”) to
1
Unpublished opinions may be cited as persuasive on a particular point. The Court does not rely
on unpublished opinions as precedent. Citation to unpublished opinions on or after January 1,
2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
3
lift and carry up to twenty pounds frequently (between one-third and two-thirds of
the workday) with her right (dominant) hand and up to fifty pounds occasionally
(up to one-third of the workday) with her right hand. With her left (non-dominant)
hand, claimant can frequently lift up to ten pounds and occasionally lift up to twenty
pounds. Claimant can sit for four hours and stand or walk for two hours without
interruption. Claimant can sit, stand, or walk for up to six hours in an eight-hour
day. Claimant’s right hand can be used frequently for all activities such as reaching
overhead, reaching in all directions, handling, fingering, feeling, pushing, and
pulling. Claimant’s left hand may only be used occasionally for reaching overhead
but she may frequently reach in all other directions, handle, finger, feel, push, or
pull. Pushing and pulling are limited bilaterally to the extent of claimant’s ability
to lift and carry. Claimant’s feet can be used frequently for the operation of foot
controls. Claimant can frequently climb ramps and stairs or balance. Claimant may
occasionally stoop, kneel, crouch, or crawl. Claimant should avoid climbing
ladders or scaffolds. Claimant can frequently be exposed to humidity and wetness,
dusts, odors, fumes, pulmonary irritants, extreme heat, and vibration. Claimant is
limited to occasional exposure to unprotected heights, moving mechanical parts,
and extreme cold. Claimant may only occasionally be required to operate a motor
vehicle. Claimant may be exposed to moderate noise conditions such as in an
office. With regard to activities of daily living, claimant can perform shopping,
traveling without assistance, walking a block at a reasonable pace, using public
transportation, climbing stairs at reasonable pace with the use of a single handrail,
feeding herself and preparing simple meals, taking care of her personal hygiene,
and handling or sorting paper files.
(Tr. at 20-21).
At step four, the ALJ determined that Plaintiff is able to perform her past relevant work
as a cashier/checker, cashier, retail store manager, sales person, and sales clerk. (Tr. at 24). The
ALJ stated “[t]his work does not require the performance of work-related activities precluded by
the claimant’s residual functional capacity (20 CFR 404.1565 and 416.965).” (Tr. at 24). The
ALJ stated that “[t]he vocational expert testified that a hypothetical person with the residual
functional capacity outlined above would be able to perform the jobs of cashier/checker, cashier,
and sales clerk as generally performed, and retail store manager and sales person as performed
by the claimant.” (Tr. at 24). Thus, the ALJ determined that “in comparing the claimant’s
residual functional capacity with the physical and mental demands of this work, the undersigned
finds that the claimant is able to perform it as actually and generally performed.” (Tr. at 24).
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Additionally, even though the ALJ determined that Plaintiff could perform her past
relevant work, the ALJ made alternative findings for step five. (Tr. at 24-25). The ALJ stated
that “considering the claimant’s age, education, work experience, and residual functional
capacity, there are other jobs that exist in significant numbers in the national economy that the
claimant also can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).” (Tr. at
25). The vocational expert (“VE”) testified that, even with additional limitations inquired about
by the ALJ, an individual with Plaintiff’s age, education, work experience, and RFC would be
able to perform the requirements of representative occupations such as:
1. Receptionist, DOT #237.367-038, which is performed at the sedentary
level, has an SVP of 4
2. Typist, DOT #203.582-066, which is performed at the sedentary level, has
an SVP of 3
3. Order Clerk, DOT #249.362-026, which is performed at the sedentary level,
has an SVP of 4
(Tr. at 25). 2
Moreover, the ALJ determined that the VE’s testimony was consistent with the
information contained in the Dictionary of Occupational Titles. (Tr. at 25). Based on the
testimony of the VE, the ALJ concluded that “considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant is capable of making a successful
adjustment to other work that exists in significant numbers in the national economy.” (Tr. at 25).
Therefore, the ALJ stated that a finding of “not disabled” was appropriate. (Tr. at 25). The ALJ
concluded that Plaintiff was not under a disability from March 24, 2007, through the date of the
decision. (Tr. at 26).
2
“DOT” refers to the Dictionary of Occupational Titles, and “SVP” refers to the Specific
Vocational Preparation Code.
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D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla; i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Richardson, 402 U.S. at 401;
Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as the finder of fact,
and even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932
F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding the court must scrutinize
the entire record to determine reasonableness of factual findings).
II.
Analysis
Plaintiff argues two issues on appeal:
1. The Administrative Law Judge erred by substituting his opinion for expert
medical opinion evidence.
2. The Administrative Law Judge relied on a response from a vocational expert
to incomplete [sic] hypothetical.
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(Doc. 14 at 5-13). The Court addresses each of these issues below.
A. Incomplete Hypothetical
Plaintiff argues that “[a]n ALJ must pose a hypothetical question to the vocational expert
which comprehensively described the claimant’s impairments.” (Doc. 23 at 11 (citing Pendley v.
Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985)). Defendant, however, argues that “the ALJ’s
hypothetical question to the VE encompassed all the limitations the ALJ included in his RFC
assessment.” (Id. (citing Tr. at 20-21, 91-94)). Thus, Defendant argues that “the ALJ properly
relied on the VE’s testimony, which provided substantial evidence in support of his
determinations.” (Doc. 24 at 16).
Upon review, Defendant is correct that the ALJ’s hypothetical question to the VE
included all of the limitations that the ALJ included in his RFC assessment. (See Tr. at 20-21,
91-94). Thus, the ALJ’s hypothetical to the VE could only be incomplete if there are additional
limitations that the ALJ should have included in his RFC assessment. Accordingly, if the ALJ’s
RFC assessment is supported by substantial evidence, then the hypothetical is not incomplete and
there is no error. See Lee v. Comm’r of Soc. Sec., 448 F. App’x 952, 953 (11th Cir. 2011) (citing
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) for the proposition that
“[t]he ALJ is not required to include findings in a hypothetical to a vocational expert that the
ALJ has found to be unsupported”).
Moreover, as will be explained in greater detail below, the Court finds that (1) the ALJ’s
RFC assessment, including his review of the medical opinion evidence, is supported by
substantial evidence, and (2) Plaintiff has not met her burden of proving she is disabled. Thus,
the ALJ did not err by failing to include additional limitations in his hypothetical to the VE.
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B. The ALJ’s Review of the Medical Opinion Evidence
The Court next discusses the ALJ’s review of the medical opinion evidence of record.
i. The Parties’ Arguments
Plaintiff argues that it is apparent that the ALJ “arrived at the physical residual functional
capacity based on his own interpretation of medical data, rather than relying on medical opinion
evidence.” (Doc. 23 at 10). Plaintiff argues that “[a]lthough an Administrative Law Judge may
choose between conflicting medical opinion evidence, it is improper to disregard all medical
opinion evidence and instead substitute his opinion.” (Id.). Specifically, Plaintiff points to the
ALJ’s discussion regarding the opinions of Nancy Kelly, Psy.D. and Eshan Kibria, M.D. (Id. at
8-9). Plaintiff argues that, if the ALJ had sufficient medical opinion evidence upon which to
base his decision without the need for psychological or physical evaluations, then he would not
have expended taxpayer dollars for frivolous and unnecessary examinations. (Id. at 9). Plaintiff
argues that the ALJ had the ability to verify the mental and physical examinations but did not do
so. (See id. at 10). Instead, Plaintiff argues that the ALJ arrived at the mental and physical RFC
findings based upon his own interpretation of medical data. (Id.). Plaintiff argues that “[a]bsent
contradictory medical opinion evidence, the opinions of the medical consultants should be
accepted as a matter of law.” (Id.).
Defendant disagrees and argues that substantial evidence supports the ALJ’s assessment
of the medical evidence. (Doc. 24 at 7). Defendant argues that “the ALJ properly evaluated the
one-time consultative examining doctors’ (Nancy Kelly, Psy.D. and Eshan Kibria, M.D.)
opinions.” (Id.). Further, Defendant argues that “the opinion of a one-time examining doctor is
not entitled to any deference or special consideration.” (Id. (citing 20 C.F.R. §§ 404.1502,
404.1527(c)(2), 416.902, 416.927(c)(2); Eyre v. Comm’r of Soc. Sec., 586 F. App’x 521, 523
8
(11th Cir. 2014); Denomme v. Comm’r of Soc. Sec., 518 F. App’x 875, 878 (11th Cir. 2013);
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004))). Thus, Defendant
argues that because Dr. Kelly and Dr. Kibria were one-time consulting examining doctors, “their
opinions were not entitled to any deference or special consideration.” (Id. at 7-8).
Furthermore, Defendant argues that the ALJ properly afforded the correct weight to Dr.
Kelly’s and Dr. Kibria’s opinions. (Id. at 8-16). Defendant argues that the ALJ “properly
assessed Drs. Kelly and Kibria’s opinions and afforded their opinions weight, in accordance with
agency regulations and rulings . . . .” (Id. at 12). Defendant also argues that Plaintiff cites no
record facts or legal authority for her contention that “[a]bsent contradictory medical opinion
evidence, the opinions of the medical consultants should be accepted as a matter of law.” (Id.).
Moreover, Defendant argues that Plaintiff’s argument that “the ALJ could have obtained
additional information regarding Drs. Kelly and Kibria’s opinions is unavailing.” (Id. at 13).
Defendant argues that “there is nothing in the record to suggest the ALJ lacked sufficient
information to decide Plaintiff’s claim” and that Plaintiff, not the ALJ, had the burden to produce
evidence showing how Claimant’s impairments affected her functioning during the alleged
period of disability.” (Id. at 13-14).
Finally, Defendant argues that “Plaintiff’s argument suggesting the ALJ, in his RFC
assessment, substituted his own opinion for those of the medical sources is without merit.” (Id.
at 14 (internal citations omitted)). Defendant argues that the ALJ “considered the overall
evidence” and “properly assessed and afforded weight to the medical opinions of two, one-time
examining medical sources and properly assessed Plaintiff’s RFC . . . .” (Id. at 15-16).
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ii. Legal Standard
Medical opinions are statements from physicians, psychologists, or other acceptable
medical sources that reflect judgments about the nature and severity of impairments, including
symptoms, diagnosis and prognosis, what a claimant can still do despite impairments, and
physical or mental restrictions. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). For treating
physicians, the Eleventh Circuit has held that the opinion of a treating physician must be given
substantial or considerable weight unless “good cause” is shown to the contrary. Phillips, 357
F.3d at 1240-41 (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). The Court
notes, however, that the medical opinions of non-treating physicians and one-time examiners are
not entitled to any special deference. See McSwain v. Bowen, 814 F.3d 617, 619 (11th Cir.
1987).
Nevertheless, an ALJ is required to consider every medical opinion. Bennett v. Astrue,
No. 308-CV-646-J-JRK, 2009 WL 2868924, at *2 (M.D. Fla. Sept. 2, 2009) (citing 20 C.F.R. §§
404.1527(d), 416.927(d)). To evaluate any medical source, an ALJ must use the same criteria,
whether the medical source is treating or non-treating, considering the following elements: “(1)
the length of the treatment relationship and the frequency of examination; (2) the nature and
extent of any treatment relationship; (3) supportability; (4) consistency with other medical
evidence in the record; and (5) specialization.” Id. (citations omitted).
An “ALJ may reject any medical opinion if the evidence supports a contrary finding.”
Lacina v. Comm’r Soc. Sec. Admin., 606 F. App’x 520, 526 (11th Cir. 2015) (quoting Sharfarz v.
Bowen, 825 F.2d 278, 280 (11th Cir. 1987)). However, the ALJ must “state with particularity
the weight he gave the different medical opinions and the reasons therefor.” Id. (quoting
Sharfarz, 825 F.2d at 279). In situations where an ALJ “articulates specific reasons for failing to
10
accord the opinion of a treating or examining physician controlling weight and those reasons are
supported by substantial evidence, there is no reversible error.” Poellnitz v. Astrue, 349 F. App’x
500, 502 (11th Cir. 2009) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)).
iii. Analysis
In this case, the record is clear that the ALJ stated with particularity the weight he gave
the medical opinions of Dr. Kelly and Dr. Kibria and the reasons therefor. See Lacina, 606 F.
App’x at 526. Moreover, the ALJ articulated specific reasons for failing to accord the opinions
of Dr. Kelly and Dr. Kibria controlling weight, and those reasons are supported by substantial
evidence. See Poellnitz, 349 F. App’x at 502. Thus, there is no reversible error. See id.
1. The ALJ’s Review of Dr. Kelly’s Medical Opinion
As to Dr. Kelly, the ALJ described Dr. Kelly’s examination and findings. (Tr. at 19).
The Court notes that Plaintiff stated that “[f]or the sake of brevity and economy, the statements
of the testimony and of the documentary evidence as set forth in the ALJ’s decision (T. 11-32)
are accepted by the Plaintiff and incorporated, as if fully presented herein, except as specifically
alluded to, excepted, or expanded upon, below.” (Doc. 23 at 4). Nevertheless, as Defendant
points out, “Plaintiff did not ‘allude to, except, or expand upon’ any of the ALJ’s above
statements. . . .” (Doc. 24 at 9-10). Thus, Defendant is correct that, on appeal, “Plaintiff does
not object to the ALJ’s explanation of Dr. Kelly’s examination.” (See id. at 8).
The ALJ stated that “Dr. Kelly’s opinions regarding the claimant’s mental functioning
are given no weight as the totality of the medical record contradicts Dr. Kelly’s findings and the
claimant’s subjective reports are not credible to the extent that they conflict directly with the
contemporaneous medical observations over time.” (Tr. at 23 (emphasis added)). Thus, the
specific reasons given by the ALJ for affording Dr. Kelly’s opinion no weight are (1) the
11
“totality of the medical record contradicts Dr. Kelly’s findings” and (2) “the claimant’s
subjective reports are not credible to the extent that they conflict directly with the
contemporaneous medical observations over time.” (Tr. at 23).
On the first point, the ALJ noted that, in March 2013, Dr. Kelly’s examination found
Plaintiff “to have significant anxiety and mental health symptoms.” (Tr. at 23). Nevertheless,
the ALJ found that “the indications from this examination are simply not credible as the weight
of the entire record contradicts Dr. Kelly’s findings, not only records dating back several years,
but contemporaneous medical treatment notes from Drs. Kibria and Esch as well.” (Tr. at 23).
In reviewing the medical records regarding Plaintiff’s alleged mental impairments, the ALJ
stated:
Regarding the claimant’s alleged mental impairments, the undersigned also finds
that the claimant is not as limited as is alleged. In 2008, examination showed
claimant’s mood and affect to appear appropriate. In 2009, claimant reported living
a moderately active lifestyle and denied depression or anxiety. In 2010, claimant
again denied difficulties with depression, anxiety, or experiencing any symptoms.
Claimant sought and received no mental health treatment. Claimant reported living
amicably with others and having good relationships with peers, coworkers, and
supervisors. She had a boyfriend and got along well with her family. She showed
good recall of recent and remote events and appeared to have no difficulty with
memory. Notably, claimant appeared to attempt to manipulate the outcome of the
examination by asking the examiner to indicate that she has “no memory”. This
manipulation further suggests that the claimant is not as limited as is alleged and
that her subjective reports are not credible. Claimant indicated that she is able to
initiate and maintain friendships. She visits with friends and talks with neighbors
actively. She spends her days watching television, preparing simple meals, and
housecleaning. On multiple examinations in 2013, claimant’s understanding,
memory, concentration, social interaction, and adaptation appeared intact. She
further denied depression or anxiety.
(Tr. at 23).
A review of the medical records above supports the ALJ’s contention that the “totality of
the medical record contradicts Dr. Kelly’s findings.” (See Tr. at 23). For instance, in 2008, the
medical record, in fact, shows that Plaintiff’s mood and affect were appropriate. (Tr. at 482). In
12
2009, the medical records show that Plaintiff reported a moderately active lifestyle and that she
denied depression, anxiety, and suicide attempts. (Tr. at 532). In 2010, the medical records
show that Plaintiff “denied difficulties with depression, anxiety, or experiencing any symptoms.”
(Tr. at 23 (citing Tr. at 554)). Further, the ALJ’s description of the 2010 medical records is
accurate. (See Tr. at 23 (citing Tr. at 554-58)). Finally, medical records from 2013 indeed show
that “claimant’s understanding, memory, concentration, social interaction, and adaptation
appeared intact” (Tr. at 577) and that Plaintiff “denied depression or anxiety” (Tr. at 654-66,
709-38, 740-71). Thus, these records, which span over five years, provide substantial evidence
contradicting Dr. Kelly’s findings that Plaintiff has “significant anxiety and mental health
symptoms.” (See Tr. at 23). The Court, therefore, finds that the ALJ’s conclusion that the
totality of the medical evidence does not support Dr. Kelly’s findings is supported by substantial
evidence.
Additionally, the ALJ’s second reason for giving Dr. Kelly’s opinion no weight is that
“the claimant’s subjective reports are not credible to the extent that they conflict directly with the
contemporaneous medical observations over time.” (Tr. at 23). In fact, the ALJ specifically
found that Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her
symptoms were not entirely credible. (Tr. at 22). Upon review of the medical records cited
above, the ALJ’s finding that Plaintiff was not entirely credible is supported by substantial
evidence because the contemporaneous medical observations over time contradict Plaintiff’s
subjective reports.
Upon consideration, the Court finds that both reasons given by the ALJ for affording Dr.
Kelly’s medical opinion no weight are supported by substantial evidence. See Poellnitz, 349 F.
13
App’x at 502. Thus, the ALJ did not err by affording Dr. Kelly’s medical opinion no weight.
See id.
Furthermore, the ALJ’s citations to the record above also support the ALJ’s RFC findings
as to Plaintiff’s mental impairments. It is clear that the ALJ’s RFC findings as to Plaintiff’s
mental impairments are based on substantial medical evidence of record. Accordingly, the Court
finds that the ALJ’s RFC findings as to Plaintiff’s mental impairments are supported by
substantial evidence and, therefore, the ALJ did not err as to those findings. See Barnes, 932
F.2d at 1358.
2. The ALJ’s Review of Dr. Kibria’s Medical Opinion
As to Dr. Kibria, Plaintiff states in her Memorandum that “[f]or the sake of brevity and
economy, the statements of the testimony and of the documentary evidence as set forth in the
ALJ’s decision (T. 11-32) are accepted by the Plaintiff and incorporated, as if fully presented
herein, except as specifically alluded to, excepted, or expanded upon, below.” (Doc. 23 at 4).
Nevertheless, Defendant is correct that “Plaintiff did not ‘allude to, except, or expand upon’ any
of the ALJ’s” statements. (Doc. 24 at 12). Thus, Plaintiff did not object to the ALJ’s
explanation of Dr. Kibria’s examination on appeal. (See id.).
The ALJ stated that “Dr. Kibria’s opinion finding the claimant to be capable of less than
the full range of medium work is given some weight however the totality of the medical record
suggests that the claimant is not as limited as was indicated by Dr. Kibria.” (Tr. at 23). The ALJ
further stated that “Dr. Kibria’s opinion is of limited value as he was only a one time examining
physician” and that “[t]he combined record of the claimant’s treatment received from several
doctors suggested different limitations within a similar range.” (Tr. at 23). Thus, the reasons
given by the ALJ for only giving “some weight” to Dr. Kibria’s opinion are (1) the totality of the
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medical record suggests that Plaintiff is not as limited, (2) Dr. Kibria was only a one-time
examining physician, and (3) the combined record of Plaintiff’s treatment received from several
doctors suggested different limitations within a similar range. (Tr. at 23).
In evaluating these reasons, the Court first notes that Dr. Kibria, as a one-time examining
physician, is not entitled to any special deference. See McSwain, 814 F.3d at 619. Thus, the
Court finds that Dr. Kibria’s opinion could be afforded less weight for this reason.
Additionally, the Court further notes that the ALJ specifically evaluated the medical
records regarding Plaintiff’s physical limitations in the RFC analysis. (Tr. at 22-23). The ALJ
stated, “[i]n terms of the claimant’s alleged physical impairments, the longitudinal medical
record suggests that the claimant is not as limited as is alleged.” (Tr. at 22). On this point, the
ALJ stated:
Claimant’s subjective reports of pain are not supported by substantial medical
evidence, are contradicted by numerous clinical and diagnostic examinations, and
appear intermittent and requiring only conservative therapies throughout the record.
While claimant alleges severe back and arm pains and limitations, MR of the
lumbar spine from April 2007 was unremarkable but for a small disc protrusion
marginally encroaching into the right neural foramen at L4-5. No nerve
compression was observed. Claimant’s reported symptoms of radiating pain on her
left were not supported at all by the objective medical evidence. Physical
examination showed no point tenderness and good lower extremity strength.
Straight leg raising was negative. Notably in spring 2007, claimant noted having
no other complaints and did not report headache, mental, or arm difficulties. In
May, examination showed normal neurological function including gait, strength,
sensation, and reflexes. X-ray appeared essentially normal. Thereafter in March
2008, claimant reported that her back condition had improved. Her gait and station
were normal. While she complained at this time of shoulder and arm pains,
diagnostic imaging was unremarkable. Claimant’s shoulder range of motion
improved with treatment and conservative care was recommended. Claimant did
not follow up again until September 2009 at which time she reported a new onset
of shoulder pain three months earlier. Claimant denied numbness, tingling, or
weakness. Again, conservative physical therapy was recommended to the claimant
and again the claimant was generally non-compliant. Throughout this period,
claimant’s headaches appeared well controlled with Topamax use as prescribed. In
April 2011, claimant felt well enough to attempt to run for exercise. She denied
any back pain or injury at this time. DVT study and leg examination showed no
15
evidence of swelling despite claimant’s reports of diffuse leg pains. In 2012 and
into 2013, claimant’s breast cancer was in remission and she denied headache or
other symptoms. Examination showed a full range of motion in claimant’s upper
and lower extremities, she appeared well clinically and conservative therapies were
again recommended for left sided tenderness as no clear etiology could be found.
In March 2013, claimant reported atypical shoulder pains and limitations but was
observed with normal muscle bulk and tone and used her left arm and hand to blow
her nose while in the office.
(Tr. at 22-23). The ALJ concluded that “[a]ll of the foregoing tend to suggest that the claimant is
not as limited as is alleged.” (Tr. at 23).
The ALJ’s review of Plaintiff’s medical records as to Plaintiff’s physical impairments
spans a six-year time period. A review of these medical records shows that the ALJ’s
characterizations of those records are supported by substantial evidence. For instance, the MR of
the lumbar spine was, in fact, unremarkable but for a small disc protrusion marginally
encroaching into the right neural foramen at L4-5. (Tr. at 465-466). Additionally, in 2011, the
records show that Plaintiff attempted to run for exercise. (Tr. at 688). Further, the Court finds
that these medical records support the ALJ’s conclusion that the “totality of the medical record
suggests that the claimant is not as limited” as Dr. Kibria indicated. (See Tr. at 23). In fact, the
records largely show that conservative care was suggested and that Plaintiff was not as limited as
alleged.
Moreover, the above records were obtained from various doctors, including Dr. Esch, Lee
Memorial Health System, and Dr. Yuvienco. These records do not contradict the ALJ’s RFC
assessment. (See Tr. at 20-24). Thus, the Court finds that a review of these records supports the
ALJ’s conclusion that the combined record of Plaintiff’s treatment received from several doctors
only suggested different limitations within a similar range. (Tr. at 23).
Upon consideration, the Court finds that ALJ articulated specific reasons for failing to
accord the opinion Dr. Kibria controlling weight and that these reasons are supported by
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substantial evidence. See Poellnitz, 349 F. App’x at 502. Thus, there is no reversible error on
this ground. See id.
Furthermore, the ALJ’s citations to the record above also support the ALJ’s RFC findings
as to Plaintiff’s physical impairments. It is clear that the ALJ’s RFC findings as to Plaintiff’s
physical impairments are based upon substantial medical evidence of record. Accordingly, the
Court finds that the ALJ’s RFC findings as to Plaintiff’s physical impairments are supported by
substantial evidence and, therefore, the ALJ did not err as to those findings. See Barnes, 932
F.2d at 1358.
Finally, as in all cases, Plaintiff bears the burden of proving that she is disabled. See
Hines-Sharp, 511 F. App’x at 915 n.2. Here, Defendant is correct that Plaintiff cites no record
facts or legal authority for her contentions that the opinions of Dr. Kelly or Dr. Kibria should be
accepted as a matter of law. (Doc. 24 at 12). Furthermore, while Plaintiff argues that the ALJ
does not point to any medical opinion evidence in the record setting forth Plaintiff’s mental and
physical limitations, the record nevertheless demonstrates that the ALJ’s RFC findings were
based on substantial medical evidence of record. (See Tr. 16-20). Regardless, Plaintiff cites no
record facts to demonstrate that the ALJ should have made some other determination based on
the medical record. Thus, Plaintiff has failed to meet her burden of proving she is disabled. See
Hines-Sharp, 511 F. App’x at 915 n.2.
In this case, the Court finds that the ALJ applied the correct legal standard for his
assessments of the doctors’ medical opinions, see McRoberts, 841 F.2d at 1080, and that the
ALJ’s findings regarding those doctor’s medical opinions are supported by substantial evidence,
see Richardson, 402 U.S. at 390. Moreover, the ALJ cited specific medical records and
Plaintiff’s testimony in making his RFC assessment of Plaintiff. The Court, therefore, finds that
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the ALJ’s decision is supported by substantial evidence and that it is decided upon proper legal
standards.
II.
Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence and is decided
upon proper legal standards.
Accordingly, IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. §405(g). The Clerk is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the case.
DONE AND ORDERED in Fort Myers, Florida on September 16, 2016.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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