Clark v. Commissioner of Social Security
Filing
16
OPINION AND ORDER affirming the Commissioner's final Decision; directing Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James R. Klindt on 3/4/2013. (KAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MARK CLARK,
Plaintiff,
vs.
Case No. 3:12-cv-146-J-JRK
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.
_____________________________________/
OPINION AND ORDER2
I. Status
Mark Clark (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s final decision denying his claim for disability insurance benefits (“DIB”).
Plaintiff, who served in the military for about twenty four years before retiring in 2010, alleges
disability based upon “Stroke, ptsd, degen disc,[ ]spine bone spur, htn,[ ]obst sleep apn[.]”
Transcript of Administrative Proceedings (Doc. No. 9; “Tr.” or “administrative transcript”), filed
April 20, 2012, at 53-55, 199. On August 16, 2010, Plaintiff filed an application for DIB,
alleging an onset date of April 10, 2009. Tr. at 160-61. Plaintiff later amended his alleged
onset date to September 2, 2010. Tr. at 65. Plaintiff’s application was denied initially, see
Tr. at 100, 102-05, and was denied upon reconsideration, see Tr. at 101, 109-11.
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d)(1), Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this suit. No further action need be taken to continue
this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
2
The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 10), filed
April 23, 2012; Reference Order (Doc. No. 12), entered April 24, 2012.
On May 23, 2011, an Administrative Law Judge (“ALJ”) held a hearing at which
Plaintiff and a vocational expert (“VE”) testified. Tr. at 44-99. At the time of the hearing,
Plaintiff was fifty (50) years old. Tr. at 52. The ALJ issued a Decision on June 22, 2011,
finding Plaintiff not disabled through the date of the Decision. Tr. at 28-38. The appeals
council then received additional evidence in the form of a representative brief, a decision
letter from the Department of Veterans Affairs, and a letter from one of Plaintiff’s treating
physicians. Tr. at 5, 282-86, 1489-93. On December 9, 2011, the Appeals Council denied
Plaintiff’s request for review, Tr. at 1-4, thereby making the ALJ’s Decision the final decision
of the Commissioner.3 On February 10, 2012, Plaintiff commenced this action under 42
U.S.C.§ 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the
Commissioner’s final decision.
Plaintiff raises two issues on appeal. See Plaintiff’s Memorandum of Law in Support
of His Position (Doc. No. 14; “Pl.’s Mem.”), filed June 25, 2012. First, Plaintiff argues the ALJ
erred at step two of the sequential evaluation process by finding Plaintiff does not suffer from
a severe mental impairment. Pl.’s Mem. at 12-13. Second, Plaintiff contends the ALJ erred
when he discounted the opinion of treating physician Arkam Rehman, M.D. Id. at 13-16. On
August 3, 2012, Defendant filed a memorandum responding to Plaintiff’s arguments. See
Memorandum in Support of the Commissioner’s Decision (Doc. No. 15; “Def.’s Mem.”). After
a thorough review of the entire record and consideration of the parties’ respective
3
The Appeals Council originally had issued a notice on October 27, 2011 denying
Plaintiff’s request for review. Tr. at 8-11. Apparently because Plaintiff submitted additional medical
evidence on that same date, see Tr. at 7, the Appeals Council set aside the initial October 27, 2011
denial, received the additional evidence, and again denied Plaintiff’s request for review in a notice dated
December 9, 2011, Tr. at 1-4.
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memoranda, the Commissioner’s final decision is due to be affirmed for the reasons
explained herein.
II. The ALJ’s Decision
When determining whether an individual is disabled,4 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining
as appropriate whether the claimant (1) is currently employed or engaging in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment or combination of
impairments that meets or medically equals one listed in the Regulations; (4) can perform
PRW; and (5) retains the ability to perform any work in the national economy. 20 C.F.R.
§§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).
The claimant bears the burden of persuasion through step four and, at step five, the burden
shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 30-38. At step one,
the ALJ observed that Plaintiff “has not engaged in substantial gainful activity since
September 2, 2010, the amended alleged onset date.” Tr. at 30 (emphasis and citation
omitted). At step two, the ALJ found Plaintiff suffers from “the following severe impairments:
degenerative
disc
disease
and
s/p
cerebrovascular
accident,
dysphagia
and
gastroesophageal reflux disease (GERD).” Tr. at 30 (emphasis and citation omitted). At
step three, the ALJ ascertained Plaintiff “does not have an impairment or combination of
4
“Disability” is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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impairments that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.” Tr. at 32 (emphasis and citation omitted). The ALJ determined
Plaintiff has the following RFC:
[Plaintiff can] perform a restricted range of light work. He can lift/carry 20
pounds occasionally and 10 pounds frequently, stand and/or walk 6 hours, and
sit 6 hours in an 8-hour workday. He can occasionally climb ramps/stairs,
balance, stoop, kneel, crouch, and crawl; and frequently reach above shoulder
with both arms. He can never climb ladders, ropes, or scaffolds. He must
avoid hazards, moving mechanical parts, and high exposed places.
Tr. at 32. At step four, the ALJ found Plaintiff “is capable of performing past relevant work
as a personnel clerk.” Tr. at 38 (emphasis and citation omitted). Because the ALJ found
Plaintiff is capable of performing his past relevant work, the ALJ was not required to and did
not proceed to step five. The ALJ concluded that Plaintiff “has not been under a disability
. . . from September 2, 2010, the amended alleged onset date, through the date of th[e
D]ecision.” Tr. at 38 (emphasis and citation omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence’ . . . .”
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d
1320, 1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere
scintilla, but less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial
evidence standard is met when there is “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Falge, 150 F.3d at 1322 (quoting
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Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the
evidence; rather, the entire record is reviewed to determine whether “the decision reached
is reasonable and supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143,
1145 (11th Cir. 1991) (internal quotation and citations omitted); see also McRoberts v.
Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987). The decision reached by the Commissioner must be affirmed if it is supported
by substantial evidence–even if the evidence preponderates against the Commissioner’s
findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per
curiam).
IV. Discussion
As stated above, Plaintiff raises two issues, each of which is addressed in turn.
A.
Step Two Findings Regarding Plaintiff’s Mental Impairment
Plaintiff first contends the ALJ erroneously found at step two of the sequential
evaluation process that Plaintiff does not suffer from any severe impairments related to his
“severe anxiety, post-traumatic stress disorder, or any other diagnosis referable to his
mental condition[.]” Pl.’s Mem. at 12. Plaintiff recognizes that in making the nonsevere
finding at step two, the ALJ relied upon findings of social security examining psychologist
Diana M. Benton, Psy.D., and military examining psychiatrist William C. Keppler, III, M.D.
Id. Plaintiff argues, however, that the ALJ improperly deferred to Dr. Benton’s conclusion
that Plaintiff’s “memory impairments alone would not ‘prevent him from obtaining and
maintaining some form of employment.’” Id. (quoting Tr. at 1337).
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Defendant, recognizing that “the record contains evidence of [P]laintiff’s diagnoses
of anxiety and P[ost] T[raumatic] S[tress] D[isorder] [(“PTSD”)],” argues, “[T]here is no
evidence that either condition significantly limited Plaintiff’s ability to perform any of the
mental activities required by basic work.” Def.’s Mem. at 5. As such, according to
Defendant, “the ALJ properly concluded that Plaintiff’s anxiety and PTSD were not severe
impairments.” Id. at 10.
Step two of the sequential evaluation process requires the ALJ to determine if a
claimant suffers from a severe impairment. See 20 C.F.R. § 404.1520(a)(4)(ii). At this step,
“[a]n impairment can be considered as not severe only if it is a slight abnormality which has
such a minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work[.]” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984). “[T]he
‘severity’ of a medically ascertained disability must be measured in terms of its effect upon
ability to work, and not simply in terms of deviation from purely medical standards of bodily
perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). In the
context of a Social Security disability benefits case, a condition is severe if it affects a
claimant’s ability to maintain employment. See id. A claimant has the burden of proving
that allegations of mental health issues constitute severe impairments. See Bowen, 482
U.S. at 146 n.5 (recognizing the claimant’s burden of proof at step two to show “a medically
severe impairment or combination of impairments”); see also Nigro v. Astrue, No. 8:06-cv2134-T-MAP, 2008 WL 360654, at *3 (M.D. Fla. Feb. 8, 2008) (unpublished) (finding the
plaintiff “failed to meet her burden of showing that depression or anxiety were severe
impairments”). Further, “[t]he severe impairment either must have lasted or must be
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expected to last for at least 12 months.” Davis v. Barnhart, 186 F. App’x 965, 967 (11th Cir.
2006) (unpublished) (citing Barnhart v. Walton, 535 U.S. 212, 216 (2002)).
A severe impairment interferes with a claimant’s ability to perform “basic work
activities.” See Bowen, 482 U.S. at 141. The Code of Federal Regulations provides six
examples of “basic work activities”: (1) Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing,
and speaking; (3) Understanding, carrying out, and remembering simple instructions; (4)
Use of judgment; (5) Responding appropriately to supervision, co-workers, and unusual
work situations; and (6) Dealing with changes in a routine work setting. 20 C.F.R. §
404.1521(b); see also Davis, 186 F. App’x at 966-67.
With regard to mental limitations, an ALJ is required to rate degrees of limitation in
four broad functional areas: “Activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.” 20 C.F.R. § 404.1520a(c)(3). The
Regulations provide, “If we rate the degree of your limitation in the first three functional
areas as ‘none’ or ‘mild’ and ‘none’ in the fourth area, we will generally conclude that your
impairment(s) is not severe, unless the evidence otherwise indicates that there is more than
a minimal limitation in your ability to do basic work activities.” 20 C.F.R. § 404.1520a(d)(1);
see also 20 C.F.R. § 404.1521.
Here, at step two, the ALJ found Plaintiff has severe physical impairments, but the
ALJ declined to find that the PTSD and anxiety are severe. Tr. at 30-32. The ALJ explained
in detail why Plaintiff’s “[PTSD] and anxiety disorder do not cause more than minimal
limitation in [Plaintiff’s] ability to perform basic mental work activities[.]” Tr. at 30. The ALJ
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provided a comprehensive summary of the relevant evidence, including the findings of Dr.
Keppler and Dr. Benton. Tr. at 31-32. Addressing Dr. Keppler’s findings and opinion, the
ALJ correctly stated, “Dr. Keppler noted that a mental condition had been formally
diagnosed, but symptoms were not severe enough to interfere with occupational and social
functioning or to require continuous medication.” Tr. at 31 (citing Tr. at 287-5365). The ALJ
also correctly stated, “[A]lthough [Plaintiff] reported short term memory difficulties, based
on his presentation and performance on MSE tasks, it was not believed [by Dr. Benton] that
memory functioning alon[e] would prevent [Plaintiff] from obtaining and maintaining some
form of employment.” Tr. at 32 (citing Tr. at 1334-39).
As far as the four broad functional areas for evaluating mental disorders, the ALJ
found as follows. Plaintiff has no limitation in activities of daily living; Plaintiff has mild
limitation in social functioning; Plaintiff has mild limitation in maintaining concentration,
persistence, or pace; and Plaintiff has experienced no episodes of decompensation of
extended duration. Tr. at 32. The ALJ, therefore, found Plaintiff’s mental impairments “not
severe.” Tr. at 32, 30; see also 20 C.F.R. § 404.1520a(d)(1); 20 C.F.R. § 404.1521. These
findings are supported by substantial evidence.6
5
The ALJ actually cited “Exhibit 1F,” which is found in the administrative transcript at
pages 287 through 536. Exhibit 1F is quite voluminous because it contains most or all of Plaintiff’s
medical records from the Army Medical Center. The actual psychiatric evaluation to which the ALJ was
referring can be located in the administrative transcript at pages 379 through 389 (with a duplicate copy
located at pages 1204 through 1214).
6
The undersigned notes that one nonexamining psychologist, Michelle Butler, Psy.D.,
assigned moderate limitations in some of the broad functional areas, see Tr. at 1340-57, but the ALJ
assigned the opinion only “some weight[.]” Tr. at 37 (referring to Dr. Butler and others generally as
“physicians employed by the State Disability Determination Services”) (citing, e.g., Tr. at 1340-57).
Plaintiff does not quarrel with the weight assigned to Dr. Butler’s opinion.
-8-
Assuming merely for purposes of argument that the ALJ erred by finding Plaintiff’s
mental health impairments are not severe, any error would be harmless. “Nothing requires
that the ALJ must identify, at step two, all of the impairments that should be considered
severe.”
Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010)
(unpublished); see Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (recognizing that
“the finding of any severe impairment . . . whether or not it results from a single severe
impairment or a combination of impairments that together qualify as severe” is sufficient to
satisfy step two). Even if an ALJ’s finding that an impairment is not severe at step two is
considered error, such error is harmless if “the ALJ considered all of [the] impairments in
combination at later steps in the evaluation process.” Burgin v. Comm’r of Soc. Sec., 420
F. App’x 901, 903 (11th Cir. 2011) (unpublished); see Heatly, 382 F. App’x at 825 (stating
that an “ALJ is required to demonstrate that [he or she] has considered all of the claimant’s
impairments, whether severe or not, in combination”); Bowen v. Heckler, 748 F.2d 629, 635
(11th Cir. 1984) (finding that an ALJ must make “specific and well-articulated findings as to
the effect of the combination of impairments”).
Here, after making the step two findings, the ALJ proceeded to the next steps of the
sequential evaluation process by finding that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. at 32 (emphasis and citation omitted).
Then, the ALJ noted that he carefully considered the “entire record” in determining Plaintiff’s
RFC at a later step in the sequential evaluation process. Tr. at 32 (emphasis omitted); see
Burgin v. Comm’r of Soc. Sec., 420 F. App’x at 903; Heatly, 382 F. App’x at 825; see also
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Jones v. Dept. of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991)
(recognizing that a simple expression that the ALJ considered a claimant’s impairments in
combination constitutes a sufficient statement of such findings). Consequently, even if an
error could be identified at step two, the error would be harmless.
Plaintiff further contends the ALJ erred in determining Plaintiff’s RFC because the
RFC did not include any limitations from his mental conditions such as “impaired memory
and concentration[.]” Pl.’s Mem. at 13. As previously stated, however, Dr. Benton– whose
evaluation findings Plaintiff relies upon in contending he has an impaired memory– noted
that Plaintiff’s memory functioning should not preclude Plaintiff from working. Tr. at 1337.
Further, in light of the ALJ’s correct determination that the mental conditions do not affect
Plaintiff’s ability to perform work activities, the ALJ was not required to include any
limitations resulting from the mental conditions in the RFC.
B.
Opinion of Treating Physician Dr. Rehman
Plaintiff next contends the ALJ erred in assigning little weight to the opinion of
treating physician Dr. Rehman regarding the effects of Plaintiff’s spine impairment. Pl.’s
Mem. at 13-16. According to Plaintiff, the reasons set forth for discounting the opinion are
insufficient. Id. Defendant, on the other hand, contends the ALJ’s reasons are sufficient
and supported by substantial evidence. Def.’s Mem. at 11-16.
Dr. Rehman is one of several medical professionals at Sunshine Spine & Pain, P.A.
who treated Plaintiff for his spine impairment. See Tr. at 1279-1304, 1406-49. On January
4, 2011, Dr. Rehman completed a “Cervical Spine Impairment Questionnaire[.]” Tr. at 1428-
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34 (capitalization and emphasis omitted).7 In the questionnaire, Dr. Rehman stated that he
treated Plaintiff from September 21, 2010 through January 4, 2011, and the treatment
occurred once or twice per month. Tr. at 1428. According to Dr. Rehman, Plaintiff’s
symptoms and limitations had been occurring since 2009. Tr. at 1434.
Dr. Rehman wrote that Plaintiff has limited range of motion and mildly decreased
flexion. Tr. at 1428. Also, Dr. Rehman indicated Plaintiff has mild crepitus in the cervical
spine. Tr. at 1429. Dr. Rehman stated Plaintiff has “sharp/aching” pain that cannot be
treated without unacceptable side effects. Tr. at 1429-30. Dr. Rehman opined that
Plaintiff’s condition precludes him from keeping his neck in a constant position. Tr. at 1430.
Dr. Rehman further opined that Plaintiff is not capable of performing a full time job that
requires activity on a sustained basis. Tr. at 1431.
Dr. Rehman stated Plaintiff can sit zero to one hours per day; Plaintiff can stand or
walk zero to one hours per day; Plaintiff must not sit continuously; Plaintiff must get up and
move around every hour; and Plaintiff needs “1 hour at the most” before he can sit again.
Tr. at 1431. Dr. Rehman opined Plaintiff can lift zero to ten pounds occasionally, but never
any more than that. Tr. at 1431. Dr. Rehman noted Plaintiff can carry zero to ten pounds
occasionally, but never any more than that. Tr. at 1431.
According to Dr. Rehman, Plaintiff has significant limitations in repetitive reaching,
handling, fingering, or lifting, and marked limitations in grasping, using fingers for fine
7
The questionnaire is actually dated “1/4/10,” Tr. at 1434, but the undersigned surmises
it was completed on January 4, 2011 because Dr. Rehman indicated on the form that he had last
examined Plaintiff on January 4, 2011, Tr. at 1428.
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manipulations, and using arms for reaching. Tr. at 1433. Dr. Rehman opined Plaintiff can
never push, pull, kneel, bend, or stoop. Tr. at 1434.
Dr. Rehman also noted Plaintiff would need unscheduled breaks from work every
hour, Tr. at 1433, and Plaintiff would likely be absent from work more than three times per
month, Tr. at 1434. As far as medications and other treatment, Dr. Rehman stated that
Plaintiff is prescribed “Norco” and “Ativan,” and he has had “facet blocks (lumbar)” which
provided about fifty percent temporary relief. Tr. at 1432 (capitalization omitted).
The Regulations instruct ALJs how to properly weigh the medical opinions8 of treating
physicians.9 See 20 C.F.R. § 404.1527(c). Because treating physicians “are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s]
medical impairment(s),” a treating physician’s medical opinion is to be afforded controlling
weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence” in the record. Id.
When a treating physician’s medical opinion is not due controlling weight, the ALJ must
determine the appropriate weight it should be given by considering factors such as the
length of treatment, the frequency of examination, the nature and extent of the treatment
8
“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [a 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.” 20 C.F.R. § 404.1527(a)(2); see also
20 C.F.R. § 404.1513(a) (defining “[a]cceptable medical sources”).
9
A treating physician is a physician who provides medical treatment or evaluation to the
claimant and who has, or has had, an ongoing treatment relationship with the claimant, as established
by medical evidence showing that the claimant sees or has seen the physician with a frequency
consistent with accepted medical practice for the type of treatment and/or evaluation required for the
medical condition. See 20 C.F.R. § 404.1502.
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relationship, as well as the supportability of the opinion, its consistency with the other
evidence, and the specialization of the physician. Id.
If an ALJ concludes the medical opinion of a treating physician should be given less
than substantial or considerable weight, he or she must clearly articulate reasons showing
“good cause” for discounting it. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
Good cause exists when (1) the opinion is not bolstered by the evidence; (2) the evidence
supports a contrary finding; or (3) the opinion is conclusory or inconsistent with the treating
physician’s own medical records. Phillips, 357 F.3d at 1240-41; see also Edwards v.
Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991); Schnorr v. Bowen, 816 F.2d 578, 582 (11th
Cir. 1987) (stating that a treating physician’s medical opinion may be discounted when it is
not accompanied by objective medical evidence). The ALJ must “state with particularity the
weight he [or she] gave the different medical opinions and the reasons therefor.” Sharfarz
v. Bowen, 825 F.2d 278, 279-80 (11th Cir. 1987); see also Moore v. Barnhart, 405 F.3d
1208, 1212 (11th Cir. 2005); Lewis, 125 F.3d at 1440.
Here, after summarizing the medical evidence and Dr. Rehman’s opinion on the
questionnaire, the ALJ assigned “little weight” to the opinion of Dr. Rehman. Tr. at 34-35.
The ALJ provided the following reasons for assigning the opinion little weight:
. . . [Plaintiff] has a treatment history through Sunshine Spine & Pain beginning
in September 2010; however, Dr. Rehman only examined [Plaintiff] on two
occasions; other exams were performed by ARNPs. Furthermore, Dr. Rehman
opined that [Plaintiff]’s limitations had been present since 2009, but he fails to
explain how he arrived at this conclusion because [Plaintiff] did not begin care
there until September of 2010. Furthermore, Dr. Rehman’s opinion is not
supported by treatment notes from Sunshine Spine & Pain and it is inconsistent
with the evidence of record when considered in its entirety, including
statements/testimony from [Plaintiff] regarding activities of daily living. Indeed,
. . . [Plaintiff] sat through a 70-minute hearing without any problems, which is
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not consistent with Dr. Rehman’s opinion that [Plaintiff] could sit for just 60
minutes in an entire 8-hour workday.
Tr. at 35.
The ALJ’s reasons for discounting Dr. Rehman’s opinion amount to the requisite
“good cause” and are supported by substantial evidence in the record. The ALJ correctly
noted records from Sunshine Spine and Pain indicate that Dr. Rehman rarely examined
Plaintiff himself; instead, Plaintiff was often examined by nurse practitioners. See Tr. at
1279-1304, 1406-49; see also 20 C.F.R. § 404.1527(c) (stating that nature and extent of
treatment relationship are relevant factors to consider). The ALJ also correctly observed
that it is difficult to determine how Dr. Rehman arrived at his conclusion that Plaintiff’s
symptoms have been present since 2009, given that Plaintiff began treatment at Sunshine
Spine and Pain in September 2010. See Tr. at 1281 (intake questionnaire dated September
20, 2010). The ALJ’s finding that Dr. Rehman’s opinions are not supported by the treatment
notes is also supported by substantial evidence, given that the treatment was generally
conservative in nature. See Tr. at 1279-1304, 1406-49. Finally, the ALJ correctly observed
that Plaintiff’s statements and testimony about his activities and his ability to sit through a
sixty minute hearing erode the reliability of Dr. Rehman’s opinion. See, e.g., Tr. at 209-16
(Plaintiff indicating on a questionnaire dated September 2010 that he watches television,
gardens, helps clean the house, “tr[ies] to prepare supper,” mows the lawn with a riding
mower, drives, shops for food, goes to church, can lift twenty pounds, and can walk one half
mile of a mile), 257 (Plaintiff indicating on a questionnaire dated January 2011 that he
watches television, helps care for his disabled wife, helps prepare meals, cleans sometimes,
drives, shops for food, and can walk 100 feet without resting), 87-88 (Plaintiff testifying on
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May 23, 2011 that he can sit fifteen minutes at a time comfortably, stand thirty minutes at
a time comfortably, and walk to the parking lot). Accordingly, the undersigned finds no error
in the ALJ’s election to assign Dr. Rehman’s opinion little weight.
V. Conclusion
After a thorough review of the entire record, the undersigned finds that the ALJ’s
Decision is supported by substantial evidence. Accordingly, it is
ORDERED:
1.
The Clerk of Court is directed to enter judgment pursuant to sentence four of
42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
2.
The Clerk of Court is further directed to close the file.
DONE AND ORDERED at Jacksonville, Florida on March 4, 2013.
kaw
Copies to:
Counsel of Record
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