Taylor v. Commissioner of Social Security

Filing 22

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 3/2/2016. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CHRISTOPHER EUGENE TAYLOR,
Plaintiff,
v.

Case No: 6:15-cv-242-Orl-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause is before the Court on Plaintiff Christopher Eugene Taylor’s Complaint (Doc.
1) filed on February 17, 2015. Plaintiff seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying his claim for a period of
disability and disability insurance benefits. 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 his 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. Plaintiff bears the
burden of persuasion through step four, while the burden shifts to the Commissioner at step five.
Bowen v. Yuckert, 482 U.S. 137, 146 n5 (1987).
B.

Procedural History

On June 4, 2012, Plaintiff filed an application for disability insurance benefits asserting
an onset date of September 18, 2011. (Tr. at 95, 191-92). Plaintiff’s applications were denied
initially on August 14, 2012, and on reconsideration on August 30, 2012. (Tr. at 95, 113). A
hearing and supplemental hearing were held before Administrative Law Judge (“ALJ”) Mary C.
Montanus on March 6, 2013 and January 14, 2014 respectively. (Tr. at 47-91). The ALJ issued
an unfavorable decision on June 7, 2014. (Tr. at 26-40). The ALJ found Plaintiff not to be under
a disability from September 18, 2011, through the date of the decision. (Tr. at 39).
On September 12, 2014, the Appeals Council denied Plaintiff’s request for review. (Tr.
at 5-7). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on February 17,
2015. This case is ripe for review. The parties consented to proceed before a United States
Magistrate Judge for all proceedings. (See Doc. 15).
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 he is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must determine

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.

2

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 her past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (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).
The ALJ found that Plaintiff met the insured status requirements through December 31,
2016. (Tr. at 28). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since September 18, 2011, the alleged onset date. (Tr. at
28). At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
degenerative disc disease of the cervical and lumbar spine. (Tr. at 28). 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, and 404.1526). (Tr. at 29). At step four,
the ALJ determined that Plaintiff has the residual functional capacity (“RFC”) to perform less
than a full range of sedentary work. (Tr. at 29). The ALJ determined that Plaintiff could
perform the following:
lift 10 pounds occasionally and less than 10 pounds frequently. He can stand/walk
for 2 hours in an 8-hour workday. He can sit for 6 hours in an 8-hour workday for
one hour at a time before he would need the opportunity to alternate to standing for
approximately 5 minutes while on task. He cannot climb ladders, ropes or scaffolds
and cannot work at heights or with dangerous moving machinery. He cannot crawl
or perform overhead work. He can occasionally stoop, crouch, kneel, balance and
climb stairs. He must avoid work with temperature extremes and exposure to even
moderate vibration. He could not perform constant handling, fingering or feeling
with his left upper extremity.

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(Tr. at 29). The ALJ determined that Plaintiff is unable to perform any past relevant work. (Tr.
at 38). In considering Plaintiff’s age, education, work experience, and RFC, the ALJ determined
that there are jobs that exist in significant numbers in the national economy that Plaintiff is able
to perform. (Tr. at 38). With the assistance of a vocational expert, the ALJ found that Plaintiff
was able to perform the following jobs: table worker (DOT 739.687-182), sedentary, with an
SVP of 2; document preparer (DOT 249.587-018), sedentary, with SVP of 2; and lens inserter
(DOT 713.687-026), sedentary, with an SVP of 2. (Tr. at 39). 2 The ALJ concluded that Plaintiff
has not been under a disability from September 18, 2011, through the date of the decision. (Tr.
at 39).
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 Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) and Richardson, 402 U.S. at 401).

2

“DOT” refers to the Dictionary of Occupational Titles, and “SVP” refers to the Specific
Vocational Preparation Code found in the Dictionary of Occupational Titles.

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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 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); and 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) (court must scrutinize the
entire record to determine reasonableness of factual findings).
II.

Analysis

On appeal, Plaintiff raises two issues. As stated by Plaintiff, they are: (1) the ALJ failed
to properly weigh the medical evidence and failed to properly determine Mr. Taylor’s RFC; and
(2) the ALJ failed to properly evaluate Mr. Taylor’s credibility.
A. Weight of medical evidence and Plaintiff’s RFC
Plaintiff argues that the ALJ erred in not according significant weight to the opinions of
treating physician, Dr. Azmat, or examining physiatrist, Dr. Shea. Plaintiff contends that the
ALJ failed to consider the records as a whole when weighing the consistency of the opinions
from Dr. Azmat and Dr. Shea. Moreover, Plaintiff argues that reliance on the opinions from the
consultative examiner and non-examining consultants is not substantial evidence in this case.
Plaintiff asserts that reliance on the opinions from the examining consultant, Dr. Barber was
misplaced in that Dr. Barber examined Plaintiff on a single occasion and did so without the
benefit of reviewing any of Plaintiff’s medical records. Plaintiff argues that any reliance on nonexamining consultant Dr. Desai is misplaced because Dr. Desai conducted his review two years
prior to the date of the ALJ’s decision, the record relied upon by Dr. Desai was incomplete, and

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Dr. Desai’s opinion cannot override the well-supported opinions of treating physicians. Lastly,
Plaintiff argues that the ALJ determined that Plaintiff was able to perform less that a full range of
sedentary work, yet none of the opinions of the physicians to which the ALJ accorded significant
weight found that Plaintiff was as limited as determined by the ALJ. Thus, Plaintiff argues that
the ALJ’s RFC determination is not supported by substantial medical evidence.
The Commissioner responds that the ALJ properly weighed all of the medical evidence in
determining Plaintiff’s RFC. The Commissioner claims that the ALJ considered Dr. Azmat’s
treatment notes and found that these notes support the limitations found by the ALJ in Plaintiff’s
RFC. The Commissioner contends that the ALJ provided specific reasons for failing to accord
Dr. Azmat’s opinion significant weight. Those reasons included that Dr. Azmat’s treatment
notes did not support the limitations included in the medical source statement; the cervical spine
impairments do not document the severity of the limitations found by Dr. Azmat as to reaching,
handling, and fingering; Dr. Azmat’s limitation findings are inconsistent with Plaintiff’s reports
of his daily activities and his medical improvement; and even though Dr. Azmat’s findings are
consistent with Dr. Shea’s findings, Dr. Shea is a one-time examiner and is not entitled to any
special significance. Accordingly, the Commissioner concludes that the ALJ properly assessed
the medical evidence in determining Plaintiff’s RFC.
At the fourth step in the evaluation process, the ALJ is required to determine a
claimant’s RFC and based on that determination, decide whether the plaintiff is able to return to
his previous work. McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). The
determination of a claimant’s RFC is within the authority of the ALJ and along with the
claimant’s age, education, and work experience, the RFC is considered in determining whether
the claimant can work. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Weighing

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the opinions and findings of treating, examining, and non-examining physicians is an integral
part of the ALJ’s RFC determination at step four. See Rosario v. Comm’r of Soc. Sec., 877 F.
Supp. 2d 1254, 1265 (M.D. Fla. 2012).
“The Secretary must specify what weight is given to a treating physician’s opinion and
any reason for giving it no weight, and failure to do so is reversible error.” MacGregor v.
Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (citation omitted). The Eleventh Circuit has held
that whenever a physician offers a statement reflecting judgments about the nature and severity
of a claimant’s impairments, including symptoms, diagnosis, and prognosis, what the claimant
can still do despite his or her impairments, and the claimant’s physical and mental restrictions,
the statement is an opinion requiring the ALJ to state with particularity the weight given to it
and the reasons therefor. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir.
2011). Without 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.” Id. (citing Cowart v. Shweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
“Generally, the opinions of examining or treating physicians are given more weight than
non-examining or non-treating physicians unless ‘good cause’ is shown.” Poellnitz v. Astrue,
349 F. App’x 500, 502 (11th Cir. 2009) (citing 20 C.F.R. § 404.1527(d)(1), (2), (5); and Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). A doctor’s opinion may be discredited when it
is contrary to or unsupported by the evidence of record, or the opinion is inconsistent with the
doctor’s own medical records. Id. (citing Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th
Cir. 2004)). “Where an ALJ articulates specific reasons for failing to accord the opinion of a
treating or examining physician controlling weight and those reasons are supported by

7

substantial evidence, there is no reversible error.” Id. (citing Moore v. Barnhart, 405 F.3d 1208,
1212 (11th Cir. 2005)).
1. Opinions as to limitations of Dr. Azmat, Dr. Shea, and the ALJ’s RFC finding
After careful review and for ease of comparison, the Court will summarize the opinions
as to limitations found by Dr. Azmat and Dr. Shea, and then set forth the ALJ’s RFC finding.
Plaintiff argues that the ALJ erred in failing to give significant weight to the opinion of treating
physician, Hina Azmat, M.D., and consultative examiner, James K. Shea.
a. Dr. Azmat
On April 3, 2013, Dr. Azmat completed a Multiple Impairment Questionnaire. (Tr. at
589-96). Dr. Azmat’s diagnosis was lumbar myelopathy and disc protrusion, and cervical cord
impingement. (Tr. at 589). Dr. Azmat found Plaintiff’s prognosis to be guarded and
progressively severe. (Tr. at 589). To support her diagnosis, Dr. Azmat listed numbness and
decreased touch sensation in both hands, tenderness of the neck area, right leg weakness, and
straight leg raising positive on the right side. (Tr. at 589). Dr. Azmat based her diagnosis on the
MRI of the cervical area, and the MRI of the lumbar spine area. (Tr. at 590). Dr. Azmat listed
Plaintiff’s symptoms as pain in both arms and hands, numbness of the hands and legs, weakness
of the right lower extremity, and falls. (Tr. at 590). Dr. Azmat reported that Plaintiff’s pain was
constant and dull with a level of 4 out of 10 with medication, and 10 out of 10 without
medication. (Tr. at 590). Dr. Azmat found the following: Plaintiff could sit for 0 to 1 hour in an
8-hour workday; could stand/walk for 0 to 1 hour in an 8-hour workday; must rise and move
every 15 to 20 minutes; could not sit again for 15 minutes; can lift occasionally 0 to 10 pounds;
and can occasionally carry 0 to 5 pounds. (Tr. at 592). Dr. Azmat found Plaintiff to have
significant limitation in repetitive reaching, handling, fingering or lifting due to his anterior

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cervical cord impingement. (Tr. at 592). Dr. Azmat found Plaintiff to have marked limitations
bilaterally in grasping, turning, and twisting objects; in using fingers/hands for fine
manipulations; and using arms for reaching including overhead. (Tr. at 592-93). Dr. Azmat
found Plaintiff unable to keep his neck in a constant position. (Tr. at 593). Dr. Azmat found
Plaintiff to be experiencing pain constantly, and that his impairments will last at least 12 months.
(Tr. at 594). Dr. Azmat found Plaintiff needed to take breaks or rest every 15 minutes. (Tr. at
595).
b. Dr. Shea
The Court reviewed Dr. Shea’s records. (Tr. 857-869). Dr. Shea was a medical consult
and examined Plaintiff one time. Dr. Shea reviewed the records from Dr. Azmat, the MRIs dated
March 12, 2012 and April 23, 2012, the VA’s records, and the National Pain Institute records.
(Tr. at 865-66). Plaintiff complained of headaches, neck pain radiating into his arms with
numbness and tingling, low back pain radiating into his legs with numbness and tingling, and left
wrist pain. (Tr. at 866). Plaintiff rated his headaches as an 8, his neck pain as a 7-8, and his
back pain as a 5-6 on a scale of 1-10. (Tr. at 866). Dr. Shea found Plaintiff to have normal
posture and gait. (Tr. at 867). Dr. Shea found Plaintiff had moderate tenderness over occipital
nerves, supraspinous ligament, spinous processes, and trapezius muscles; and had mild
tenderness over the greater occipital nerves. (Tr. at 867). Dr. Shea found Plaintiff to have a
limited range of cervical motion, full manual muscle strength, limited lumbar range of motion,
and normal muscle bulk and tone in the lower extremities. (Tr. at 868-69). Dr. Shea assessed
Plaintiff with chronic neck pain, degenerative disc disease with resulting moderate central and
bilateral C5-6 foraminal stenosis, chronic low back pain, left lateral L5-S1 disc protrusion
recurrent after surgery, and status post lumbar spine surgery. (Tr. at 869).

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On December 16, 2013, Dr. Shea completed a Multiple Impairment Questionnaire. (Tr.
at 857-864). Dr. Shea found Plaintiff’s prognosis for future recovery was poor. (Tr. at 857). Dr.
Shea found that Plaintiff had severe muscle spasms and significant limitations in cervical and
lumbar range of motion. (Tr. at 857). Dr. Shea based his diagnosis on Plaintiff’s MRIs. (Tr. at
858). Dr. Shea found Plaintiff’s neck pain and low back pain to be always present, and wrist
pain to be present a couple of time per week. (Tr. at 859). Dr. Shea determined that Plaintiff’s
neck pain ranged from 4-8, and Plaintiff’s back pain ranged from 3-9 on a scale of 1-10. (Tr. at
859). Dr. Shea found Plaintiff’s level of fatigue to be 3-7 or 8 on a scale of 1-10. (Tr. at 859).
Dr. Shea found Plaintiff could sit for 2 hours, and stand/walk for 2 hours in an 8-hour day, and
needed to move around every 10 minutes. (Tr. at 859). Dr. Shea found Plaintiff able to lift and
carry 0-5 pounds frequently and 5-10 pounds occasionally. (Tr. at 860). Dr. Shea found Plaintiff
to have limitations in repetitive reaching, handling fingering or lifting, with minimal limitations
in grasping, turning, and twisting objects. (Tr. at 860-61). Dr. Shea found that Plaintiff would
have “good days” and “bad days,” and would be absent from work more than 3 times per month.
(Tr. at 863). Dr. Shea determined that Plaintiff would need to avoid wetness, temperature
extremes, humidity, heights, and could not push, pull, kneel, bend, and stoop. (Tr. at 863).
c. The ALJ’s RFC finding
The ALJ determined that Plaintiff could: lift 10 pounds occasionally and less than 10
pounds frequently; stand/walk for 2 hours in an 8-hour workday; and sit for 6 hours in an 8-hour
workday, for one hour at a time before he would need the opportunity to alternate to standing for
approximately 5 minutes while on task. (Tr. at 29). The ALJ found that Plaintiff could not:
climb ladders, ropes or scaffolds; work at heights or with dangerous moving machinery; and
crawl or perform overhead work. (Tr. at 29). The ALJ found Plaintiff could occasionally stoop,

10

crouch, kneel, balance and climb stairs, but must avoid work with temperature extremes and
exposure to even moderate vibration. (Tr. at 29). Finally, the ALJ found that Plaintiff could not
perform constant handling, fingering or feeling with his left upper extremity.
2. Dr. Azmat’ records
Plaintiff argues that the ALJ erred in failing to give significant weight to the opinion of
treating physician, Hina Azmat, M.D. In determining Plaintiff’s RFC, the ALJ did not adopt all
of the findings of Dr. Azmat. As Plaintiff’s treating physician, Plaintiff claims that Dr. Azmat’s
conclusions concerning Plaintiff’s limitations should have been given significant weight because
Dr. Azmat’s conclusions were based upon her examinations and the MRI results. Specifically,
Plaintiff asserts that the ALJ erred in finding Dr. Azmat’s opinion inconsistent with the medical
evidence as a whole, and with Dr. Azmat’s treatment records.
Dr. Azmat began treating Plaintiff on January 11, 2012, for injuries he received while
serving in the military in Iraq. (Tr. at 369-370). Plaintiff complained of injuries to his neck and
lower back, claiming that he was discharged from his work with the army at the time of the
appointment. (Tr. at 369). Dr. Azmat’s medical records concerning Plaintiff continue through
April 3, 2013. (Tr. 598). The Court carefully reviewed Dr. Azmat’s medical records. The Court
finds no inconsistencies among the actual records, and the review and summary by the ALJ.
Further, Plaintiff does not assert that the ALJ inaccurately reviewed or summarized Dr. Azmat’s
records.
The ALJ extensively reviewed and considered the medical records in this case. (Tr. at
31-38). Concerning Dr. Azmat, the ALJ accurately summarized and considered Dr. Azmat’s
treatment notes on January 11, 2012, February 8, 2012, February 27, 2012, March 22, 2012, June
22, 2012, January 17, 2013, and April 2013. (Tr. at 31-34). The ALJ acknowledged that on

11

January 11, 2012, Plaintiff complained of pain, numbness, weakness, and tingling in his leg, yet
he was able to sit comfortably and was in no acute distress. (Tr. at 31). The ALJ noted that Dr.
Azmat found a good range of motion, no spinal tenderness, no paraspinal spasms or tenderness,
normal muscle tone, gait was unremarkable, but straight leg raise tests were positive. (Tr. at 31).
In reviewing Dr. Azmat’s February 8, 2012 treatment notes, the ALJ acknowledged that Plaintiff
complained of pain, tingling and numbness in his right leg, and having difficulty walking. (Tr. at
31). Again, the ALJ found Plaintiff was reported to be calm, able to sit comfortably and be in no
acute distress. (Tr. at 31). While noting that the straight leg tests were positive, the ALJ also
noted that Plaintiff’s range of motion was good, no clubbing, no cyanosis, no edema, no spinal or
paraspinal tenderness or spasms, normal muscle tone, normal muscle strength, and unremarkable
gait. (Tr. at 31). The ALJ summarized Plaintiff’s February 27, 2012 visit noting that Dr. Azmat
found weakness and decreased sensation in his right lower extremity, positive straight leg raise
tests, but normal gait, no spinal tenderness or paraspinal spasms, and normal muscle tone and
strength. (Tr. at 31).
On the March 22, 2012 visit, the ALJ noted that the examination results were essentially
the same as the previous visits, with Plaintiff’s pain a 5 on a scale of 1-10. In contrast, the ALJ
also noted that Dr. Azmat completed a form indicating that Plaintiff could not run, bike or do
push-ups or sit-ups for a year; should not perform repetitive lifting or bending; could not carry
more than 40 pounds; but was allowed to swim and could walk 2.5 miles. (Tr. at 32). 3 The ALJ

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Plaintiff argued that there was no evidence that he went swimming or walked up to 2.5
miles. (Doc. 19 at 20). On March 22, 2012, Dr. Azmat completed a chronological Record of
Medical Care. (Tr. at 358). Dr. Azmat found Plaintiff unable to do push-ups, sit-ups, run, and
bike, but was able to walk for 2.5 miles and able to swim. (Tr. at 358).

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noted that Dr. Azmat determined on June 22, 2012, that Plaintiff’s pain was moderately wellcontrolled, he was exercising erratically, and no surgery was planned or needed. (Tr. at 33).
The ALJ summarized the January 17, 2013 visit to Dr. Azmat noting that Plaintiff
complained of headaches, reported numbness and weakness in his upper extremities, and some
loss of coordination. (Tr. at 33). Consistent with the prior examinations, Dr. Azmat found
Plaintiff to be able to sit comfortably and in no acute distress. (Tr. at 33). While his straight leg
raises continued to be positive on the right, his strength was 3/5 on the right, but there was no
spinal or paraspinal tenderness or spasms. (Tr. at 33). Finally, on Plaintiff’s visit in April 2013
to Dr. Azmat, the ALJ noted that Plaintiff denied joint pain, back pain, dizziness and vertigo, but
felt weakness and numbness. (Tr. at 33). The ALJ again noted that Plaintiff was able to sit
comfortably and appeared in no acute distress. (Tr. at 33). The ALJ acknowledged that Plaintiff
had weakness in his right leg with decreased touch, but normal muscle tone and normal reflexes
bilaterally, with normal gait and coordination. (Tr. at 34).
The ALJ accurately summarized Dr. Azmat’s results in her medical source statement, and
multiple impairment questionnaire. (Tr. at 36). In determining not to give Dr. Azmat’s opinions
significant weight, the ALJ carefully and thoroughly reviewed Dr. Azmat’s treating records. The
ALJ noted that Dr. Azmat assessed Plaintiff as being able to walk for 0 to 1 hour in an 8-hour
workday, however, in documents relating to Plaintiff’s military restriction, found Plaintiff able to
walk 2.5 miles and swim. (Tr. at 37). Further, throughout Dr. Azmat’s treating records, the ALJ
noted that, at times, Plaintiff was able to sit comfortably, had normal gait, and normal strength.
In addition, the ALJ noted that Dr. Azmat found that, at times, Plaintiff’s pain was moderately
well-controlled. Yet, Dr. Azmat determined that Plaintiff was only able to sit for 0 to 1 hour in
an 8-hour workday. The Court finds that the ALJ did not err in finding that Dr. Azmat’s

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treatment notes do not fully support the severe limitations she found relating to Plaintiff’s ability
to perform work.
3. Medical records as a whole
The ALJ found that Dr. Azmat’s opinion as well as Dr. Shea’s opinion were not
consistent with the medical records as a whole. While seeing Dr. Azmat, Plaintiff also went to
other medical providers, including the Veteran’s Administration. The ALJ carefully and
thoroughly reviewed the records from these other medical providers. Without repeating the
ALJ’s summary fully, the ALJ noted that Plaintiff went to the National Pain Institute on April 9,
2012, listed Plaintiff’s complaints, noted the examination results, and included that Plaintiff
received a lumbar injection. (Tr. at 32). In April 2012, the ALJ reviewed Plaintiff’s functional
status screen at the Orange City VA that found Plaintiff did not have a high level of dependence,
and Plaintiff had denied that he had gait or balance problems. (Tr. at 32). The ALJ summarized
Plaintiff’s visit to the Connie True, M.D. on April 18, 2012 at the Orange City VA. (Tr. at 32).
Dr. True found, after a physical examination that Plaintiff had mild tenderness in his upper left
trapezius, fair range of motion in his neck and strength of 5/5. (Tr. at 32). The ALJ reviewed the
findings of the MRI taken on April 23, 2012, noting that it showed degenerative disc and joint
disease, encroachment on the central and bilateral peripheral spinal canals, neural foramina, and
moderate right anterior cord impingement with chronic right L5 radiculopathy, but no acute
radiculopathic findings. (Tr. at 32).
Next, the ALJ reviewed Plaintiff’s June 12, 2012 treatment at Active Pain and Injury.
(Tr. at 32). The ALJ noted Plaintiff’s gait was normal with full range of cervical motion. (Tr. at
32). The ALJ noted that Plaintiff has some tenderness with full range of motion and normal
strength in his legs. (Tr. at 32-33). On June 14, 2012, Plaintiff returned to the Orange City VA

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with pain of 5-6 on a 1-10 scale, but indicated he received partial or complete relief of his pain
with the use of heat application, narcotics, muscle relaxants, and sleep. (Tr. at 33). Plaintiff
returned to Dr. True on August 14, 2012 and October 2, 2012, with pain of 5-6 on a 1-10 scale,
but no gait or balance problems, and a reduced range of motion in his spine with only mild
tenderness in his lower lumbar region. (Tr. at 33).
The ALJ reviewed the records from the Orange City VA from November 23, 2012 when
Plaintiff reported his pain level was a 4-5 on a 1-10 scale; from December 17, 2012, when his
pain was a 3-4; from December 20, 2012, when his pain was a 4-5; from January 10, 2013, when
his pain was only a 2, which was an acceptable pain range for him, and he was experiencing no
side effects from the medication; and from February 2013, when his pain was a 2, which was
within an acceptable range, and he was experiencing no side effects from his medication. (Tr. at
33). The ALJ continued to review and summarize Plaintiff’s visits to the Orange City VA from
May 1, 2013, July 31, 2013, August 5, 2013, September 3, 2013. (Tr. at 34-35). Within these
summaries, the ALJ noted that Plaintiff was using a cane in May, 2013 due to falls, but did not
use an assistive device at the evaluation, and his pain level was a 2-3 on a scale of 1-10. (Tr. at
34). The ALJ noted Plaintiff’s pain was a 2-4 on July 31, 2013, his pain was a 4 on August 5,
2013, and his medication was controlling his pain. (Tr. at 34).
The ALJ reviewed and summarized an examination of Plaintiff at the Orange City VA on
September 2013; an examination by Tricia Perez-Echevarria, M.D.; and an examination on
August 13, 2013 at the Veterans Medical Center. Further, the ALJ summarized the Veteran’s
Administration records from October 21, 2013 showing that Plaintiff had a combined disability
rating of 40%.

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Next, the ALJ summarized examining physician, James K. Shea, MD.’s records. (Tr. at
35-36). The ALJ noted that Plaintiff complained of headaches, neck pain radiating into his arms
that caused numbness and tingling, low back pain radiating into his legs causing numbness and
tingling, and left wrist pain. (Tr. at 35-36). The ALJ noted that Plaintiff had normal posture and
normal gait. (Tr. at 36). The ALJ noted that Plaintiff had moderate tenderness in certain areas,
and mild tenderness in others, but no tenderness over the cervical paraspinals and rhomboid
muscles. (Tr. at 36). The ALJ noted that Plaintiff had a reduced range of motion in the cervical
spine, but normal bulk, tone and strength in his upper extremities. (Tr. at 36). The ALJ noted
that Plaintiff had muscle spasms in his lumbar paraspinals and a reduced range of motion, but
straight leg raise tests were negative bilaterally. (Tr. at 36). The ALJ accurately summarized Dr.
Shea’s findings in his multiple impairment questionnaire. (Tr. at 37).
The ALJ summarized medical consultant Sharmishtha Desai, M.D.’s opinion. (Tr. at 36).
The ALJ noted that Dr. Desai found Plaintiff could lift/carry 20 pounds occasionally and 10
pounds frequently; could stand/walk and sit for 6 hours in an 8-hour workday; could frequently
crouch and kneel; could occasionally crawl, stoop, and climb ladders, ropes, scaffolds, ramps and
stairs. (Tr. at 36). The ALJ noted that Dr. Desai found that Plaintiff should avoid concentrated
exposure to humidity and extreme cold and moderate exposure to work hazards and vibration.
(Tr. at 36).
The ALJ also summarized consultative examiner Alvan Barber, M.D.’s medical source
statement. (Tr. at 36). Dr. Barber determined that Plaintiff could lift/carry up to 10 pounds
continuously; could lift/carry 11-20 pounds frequently; could lift/carry 21-50 pounds
occasionally; could sit for 8 hours; could stand/walk for 4 hours in and 8-hour workday; does not
require a cane for ambulation; could continuously handle, finger, and feel; could occasionally

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reach and push/pull; could frequently operate foot controls, climb ramps and stairs, and balance;
could occasionally stoop, kneel, and crouch; could never crawl or climb ladders or scaffolds;
could never work at unprotected heights or with pulmonary irritants or extreme temperatures;
could occasionally work with humidity/wetness and vibration; and could frequently work with
moving mechanical parts and operate a motor vehicle. (Tr. at 37). The ALJ noted that Dr.
Barber found that Plaintiff could shop; travel unassisted; walk a block at a reasonable pace on
rough/uneven surfaces; use public transportation; could climb a few steps using a single handrail;
prepare simple meals; feed himself; could take care of his own personal hygiene; and could sort,
handle, and use paper files. (Tr. at 37).
The ALJ did not afford significant weight to the opinions of treating physician Dr. Azmat
and examining physician Dr. Shea, finding that these physicians’ conclusion are not consistent
with the medical evidence of record as a whole. (Tr. at 37). The ALJ indicated that Dr. Shea’s
recent examination revealed that Plaintiff had a normal gait, had full strength in his extremities,
and straight leg raise tests were negative. (Tr. at 37) Further, the ALJ pointed to an evaluation
conducted by the VA in August 2013 that indicated Plaintiff had a normal gait, full strength
throughout his body, with the exception of his left finger. (Tr. at 37). The ALJ further reviewed
the records from the VA from October 2013 that revealed only mild dysesthesias, full muscle
strength in his upper and lower extremities, and full sensation throughout Plaintiff’s body. (Tr.
at 37). The ALJ reviewed the lumber MRI that did not show more than mild impingement, and
Plaintiff did not require the use of an assistive device for ambulation. (Tr. at 37).
The ALJ also considered the records and opinions of Dr. Barber and Dr. Desai. (Tr. at
37). The ALJ afforded the opinions of Dr. Barber and Dr. Desai significant weight, even though
the ALJ assessed greater limitations than found in their opinions. (Tr. at 37). The ALJ

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determined that the record as a whole supported the limitations found in Plaintiff’s RFC, and that
Dr. Barber’s opinion was more consistent with the record as a whole. (Tr. at 37).
The ALJ clearly reviewed and considered the record as a whole. The ALJ summarized a
great deal of the medical evidence in this case, and summarized it accurately. The ALJ stated
with particularity the weight afforded each of the different medical opinions and the reasons she
afforded them weight. Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 834 (11th Cir. 2011).
Further, the issue of whether Plaintiff is able to work is reserved to the Commissioner, and a
medical source statement that Plaintiff is unable to work does not mean that the Commissioner
will adopt it. Forsyth v. Comm’r of Soc. Sec., 503 F. App’x 892, 893 (11th Cir. 2013).
As noted by the ALJ, the record contained evidence that: Plaintiff’s gait was normal;
Plaintiff sat comfortably; at times, Plaintiff’s pain level was a 2 and well-controlled; Plaintiff had
full or near full strength in his extremities; his pain was controlled by heat treatments and
medication; and his pain was at an acceptable level. The ALJ considered all of the evidence of
record to determine Plaintiff’s RFC. The ALJ did not accept the limitations found by Dr. Barber,
but rather, found Plaintiff to be more limited based on the other medical evidence of record. The
ALJ included the limitations from the various medical opinions that were supported by the
medical record as a whole. Iordan v. Comm’r of Soc. Sec., 579 F. App’x 775, 777-78 (11th Cir.
2014). The ALJ determined that the opinions of Dr. Azmat and Dr. Shea were not supported by
the medical record as a whole, and articulated specific reasons to support these findings. Dr.
Azmat provided a conclusory opinion as to Plaintiff’s limitations in the Multiple Impairment
Questionnaire without tying the severe limitations to her treatment records. Further, the ALJ did
find that Plaintiff was able to perform less than sedentary work, allowing him to alternate to
standing for 5 minutes after one hour of work, precluding from climbing ladders, ropes or

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scaffold, and crawling, and precluding him from constant handling, fingering, or feeling with his
left upper extremity. The Court determines that the ALJ’s decision was supported by substantial
evidence and she did not err in finding that the opinions of Dr. Azmat and Dr. Shea should be
afforded less than significant weight. Further, the ALJ considered the medical records as a
whole in determining Plaintiff’s RFC, and her decision was supported by substantial evidence.
Additionally, she did not err in failing to fully adopt one physician’s opinion as to Plaintiff’s
limitations, but rather, considered the medical records as a whole to determine Plaintiff’s RFC.
B. Credibility
Plaintiff argues that the ALJ erred in finding that Plaintiff’s statements concerning the
intensity, persistence, and limiting effects of his symptoms were not entirely credible. Plaintiff
argues that the ALJ mischaracterized the medical evidence of record as to Plaintiff’s pain and
weakness by finding them not to be significant. Plaintiff asserts that the ALJ erred in relying on
evidence that Plaintiff did not consistently use an assistive device to ambulate, did not require
inpatient hospitalization, had no emergency room visits, had no prolonged physical therapy, and
in concluding that Plaintiff’s treatment overall was conservative. The Commissioner responds
that the ALJ appropriately considered all of the evidence in making a credibility determination.
To establish disability based on testimony of pain and other symptoms, a plaintiff must
satisfy two prongs of the following three-part test: “(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 v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt
v. Sullivan, 921 F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s
complaints of pain, the ALJ may reject them as not credible, and that determination will be

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reviewed to determine if it is based on substantial evidence. Moreno v. Astrue, 366 F. App’x 23,
28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)). If an ALJ
discredits the subjective testimony of a plaintiff, then he must “articulate explicit and adequate
reasons for doing so. [citations omitted]. Failure to articulate the reasons for discrediting
subjective testimony requires, as a matter of law, that the testimony be accepted as true.”
Wilson, 284 F.3d at 1225. “A clearly articulated credibility finding with substantial supporting
evidence in the record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995)). The factors an ALJ must consider in evaluating a plaintiff’s
subjective symptoms are: “(1) the claimant’s daily activities; (2) the nature and intensity of pain
and other symptoms; (3) precipitating and aggravating factors; (4) effects of medications; (5)
treatment or measures taken by the claimant for relief of symptoms; and other factors concerning
functional limitations.” Moreno, 366 F. App’x. at 28 (citing 20 C.F.R. § 404.1529(c)(3)).
The ALJ determined that Plaintiff’s allegations and testimony were only partially
credible. (Tr. at 38). The ALJ supported her credibility finding by referring to the medical
evidence, finding that it did not establish the degree of pain or weakness at a level and severity
that would result in debilitating limitations. (Tr. at 38). The ALJ noted that Plaintiff reported
low levels of pain with treatment and an increasing ability to function. (Tr. at 38). The ALJ
found that the medication prescribed did not establish any side effects that would result in
debilitating limitations, and the medical records support the lack of side effects as reported by
Plaintiff to various medical providers. (Tr. at 38). The ALJ acknowledged that there was a brief
reference to the use of a cane in the medical records, but the majority of the medical records do
not reference the use of an assistive device or Plaintiff denied the use of an assistive device. The
ALJ also noted that Plaintiff did not require repeated hospitalizations or emergency room visits,

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or prolonged physical therapy, and the treatment for his complaints was conservative. (Tr. at
38). Upon review of the medical records, the ALJ noted that Plaintiff’s complaints of pain
generally ranged from 2-5 on a scale of 1-10, but at the hearing he testified his pain was 7-8.
(Tr. at 38). As noted by the ALJ, Plaintiff also responded in documents that he was able to
prepare meals, drive, do laundry, do light house cleaning, and do light home maintenance. (Tr.
at 38). Lastly, the ALJ noted that no medical source restricted Plaintiff to staying at home all
day, lying down during the day, or limiting activities of daily living. (Tr. at 38).
Plaintiff argues that the fact that Plaintiff can engage in some activities does not mean
that he is disabled. In this case, however, the ALJ did not simply review Plaintiff’s daily
activities and determine he was partially credible. Rather, the ALJ reviewed the medical records
as a whole and cited to instances that caused the ALJ to determine that Plaintiff was only
partially credible. Plaintiff argues that the ALJ mischaracterized the record by finding the
Plaintiff did not have significant pain or weakness. The ALJ referred to the medical records that
support her findings that Plaintiff’s pain was 2-5 on a scale from 1-10 in the medical records, the
ALJ referred to the lack of side effects from the medication, lack of use of an assistive device,
and his daily activities to support the credibility finding. Lastly, Plaintiff argues that the ALJ
cannot assume Plaintiff’s course of treatment conflicts with a finding of disability. The ALJ
considered Plaintiff’s conservative course of treatment as one factor in determining Plaintiff’s
credibility. The ALJ carefully reviewed the medical evidence and other evidence in the record as
a whole in determining Plaintiff’s credibility. The Court finds that the ALJ did not err in finding
that Plaintiff was only partially credible, and her decision was supported by substantial evidence.
III.

Conclusion

Upon consideration of the submissions of the parties and the administrative record, the

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Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards.
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 March 2, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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