McLeroy v. Commissioner of Social Security

Filing 23

OPINION AND ORDER affirming the Commissioner's decision. The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 2/24/2016. (ADM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROSE MCLEROY,
Plaintiff,
v.

CASE NO. 8:14-cv-2455-T-MCR

CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,
Defendant.
________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for Supplemental Security Income (“SSI”).
Plaintiff alleges she became disabled on April 1, 2007. (Tr. 117.) A video
hearing was held before the assigned Administrative Law Judge (“ALJ”) on
January 24, 2013, at which Plaintiff was represented by an attorney. (Tr. 40-71.)
The ALJ found Plaintiff not disabled since October 26, 2010, the date of her
application. (Tr. 23-32.)
In reaching the decision, the ALJ found that Plaintiff had the following
severe impairments: arthritis, anxiety, chronic back pain, and fractured right arm.
(Tr. 25.) The ALJ also found that Plaintiff had the residual functional capacity
(“RFC”) to perform a reduced range of light work. (Tr. 27.)

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The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 19, 20.)

Plaintiff is appealing the Commissioner’s decision that she was not
disabled since October 26, 2010. Plaintiff has exhausted her available
administrative remedies and the case is properly before the Court. The
undersigned has reviewed the record, the briefs, and the applicable law. For the
reasons stated herein, the Commissioner’s decision is AFFIRMED.
I.

Standard

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). 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); 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 v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
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835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
The ALJ is required to consider all the evidence in the record when making
a disability determination. See 20 C.F.R. § 416.920(a)(3). With regard to
medical opinion evidence, “the ALJ must state with particularity the weight given
to different medical opinions and the reasons therefor.” Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Substantial weight must be
given to a treating physician’s opinion unless there is good cause to do otherwise.
See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). “‘[G]ood cause’
exists when the: (1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records.”
Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
Although a treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion, see Wilson v. Heckler, 734 F.2d 513, 518
(11th Cir. 1984) (per curiam); 20 C.F.R. § 416.927(c)(2), “[t]he opinions of state
agency physicians” can outweigh the contrary opinion of a treating physician if
“that opinion has been properly discounted,” Cooper v. Astrue, 2008 WL 649244,
* 3 (M.D. Fla. Mar. 10, 2008). Further, “the ALJ may reject any medical opinion if
the evidence supports a contrary finding.” Wainwright v. Comm’r of Soc. Sec.
Admin., 2007 WL 708971, *2 (11th Cir. Mar. 9, 2007) (per curium); see also
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Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (same).
II.

Discussion

Plaintiff argues that the ALJ did not properly evaluate Dr. Daniel McIntire’s
opinions because the ALJ’s reasons for giving these opinions little weight are not
supported by substantial evidence. Plaintiff also argues that the ALJ did not
properly evaluate her knee impairment.
The ALJ found that Plaintiff had the RFC to perform light work except:
[S]he requires an alternating at-will sit/stand option and she cannot
climb stairs. She can only perform occasional fingering and handling
with her right (dominant) hand. She can only perform simple routine
tasks with no production rate or pace work. Due to pain, she will be
off task between 5%-10% of the workday.
(Tr. 27.)
In making this finding, the ALJ gave “little weight” to Dr. McIntire’s opinions.
(Tr. 30.) The ALJ explained:
Dr. [McIntire’s] treatment notes indicate only mild symptoms and he
consistently recommended the same treatment for two years. This
indicates that the claimant’s symptoms are milder than he attested
to. (Exhibits 8F, 28F). His examination before his opinion only noted
the claimant as limited, but did not note her for pain. (Exhibit 28F, p.
38). Also, the claimant’s consultative examination is inconsistent
with Dr. [McIntire’s] opinion. (Exhibit 11F).
(Id.) The consultative examination that the ALJ was referring to was performed
by Dr. Kutner, whose opinion the ALJ gave “great weight” because “it is
supported by his personal extensive examination of the claimant.” (Id.)
The ALJ’s consideration of Dr. McIntire’s opinions is supported by good
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cause and substantial evidence. Dr. McIntire was Plaintiff’s pain management
doctor since March 2010. (See Tr. 347.) On December 9, 2011, Dr. McIntire
completed a Treating/Examining Source Statement of Physical Capability,
opining, inter alia, that Plaintiff could stand/walk for one hour at a time and for a
total of two hours in an eight-hour workday; she could sit for one hour at a time
and for a total of three hours in an eight-hour workday; she could never climb,
balance, stoop, crouch, kneel, or crawl; she needed to elevate her feet when
sitting, change position frequently, and alternate between sitting and standing;
her pain would keep her from being able to sustain employment for eight hours a
day, five days a week; and her allegations of pain were supported by the bone
density exam and status post breast adenocarcinoma. (Tr. 472-74.)
First, Dr. McIntire’s opinion that Plaintiff would be unable to sustain
employment for eight hours a day, five days a week, was not entitled to any
special significance because whether Plaintiff is unable to work is an issue
reserved to the Commissioner. See 20 C.F.R. § 416.927(d). “[E]ven when
offered by a treating source, [such statements] can never be entitled to controlling
weight or given special significance.” SSR 96-5p. Therefore, the ALJ properly
rejected this opinion.
Moreover, the ALJ properly evaluated Dr. McIntire’s remaining opinions,
some of which the ALJ explicitly adopted in the RFC assessment. For example,
to the extent the ALJ determined that Plaintiff required an alternating at-will
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sit/stand option, she could not climb stairs, and she would be off task for 5%-10%
of the workday due to her pain, the RFC seems consistent with Dr. McIntire’s
opinions in the Treating/Examining Source Statement of Physical Capability. (Tr.
27.)
To the extent Dr. McIntire opined that Plaintiff was more limited than
determined by the ALJ, the ALJ provided specific reasons supported by
substantial evidence for giving Dr. McIntire’s opinions little weight. For example,
prior to completing the Treating/Examining Source Statement of Physical
Capability, Dr. McIntire’s examinations consistently showed that Plaintiff’s range
of motion of the cervical and lumbar spine was limited, not painful, and he
recommended essentially the same type of conservative treatment even when
Plaintiff requested an increase of her medications and/or when her symptoms
worsened. (Tr. 337-44, 346, 416-20, 422-25, 427, 1040-41.) Thus, the ALJ
properly inferred that Plaintiff’s symptoms were milder than Dr. McIntire
suggested. Although Plaintiff’s pain level at the initial visit was an eight and a half
on a scale of zero to ten, she was not taking medications at the time.2 (Tr. 347.)
Further, the ALJ properly observed that Dr. Kutner’s examination was

2

Although at times Plaintiff’s pain level was a seven or an eight, at that time
Plaintiff’s range of motion was noted as limited, not painful, and her gait was normal.
(Tr. 1036-39, 1041.) Also, when Dr. McIntire noted that Plaintiff’s pain was a nine,
Plaintiff had a temporary splint on her broken right arm, and her gait was still normal
and her cervical and lumbar range of motion was limited. (Tr. 1035; but see Tr. 103334 (painful cervical range of motion).)
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inconsistent with Dr. McIntire’s opinions. Dr. Kutner’s March 11, 2011
examination showed no abnormalities as to Plaintiff’s extremities or
musculoskeletal system. (Tr. 451.) Dr. Kutner noted that the X-rays of Plaintiff’s
lumbar spine and left hip were normal. (Id.) Dr. Kutner opined: “This claimant’s
physical examination reveals a rather thin, frail looking woman, but otherwise I
did not see any other physical problems. . . . Her functional assessment is such
that she probably would have difficulty doing physically strenuous type work.” (Tr.
452.) Although Dr. Kutner was a one-time examiner, the ALJ did not err in relying
on his examination when weighing Dr. McIntire’s opinions. The ALJ provided
specific reasons supported by substantial evidence to give little weight to Dr.
McIntire’s opinions, and Dr. Kutner’s examination was only one of those reasons.
Moreover, the ALJ’s RFC assessment was more restrictive than Dr. Kutner’s
functional assessment. In sum, the ALJ provided good cause for giving little
weight to Dr. McIntire’s opinions to the extent those opinions were more
restrictive than the RFC assessment.
Plaintiff’s second argument is that the ALJ did not properly evaluate her
knee impairment. With respect to Plaintiff’s knee impairment, the ALJ stated:
At [the] hearing, Ms. McLeroy testified she cannot work because she
has no car to drive and she has difficulties walking to the bus stop.
She stated her walking difficulties stem from knee and hip pain. . . .
In 2009, Ms. McLeroy developed occasional hip and knee pain.
(Exhibit 2F, p. 21). She was diagnosed with osteoarthritis in her left
knee. (Exhibit 2F, p. 22). At her most recent examination, her
doctor noted some swelling and effusion in her knee. (Exhibit 23F,
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pp. 8, 11). A 2012 X-ray noted her for moderate arthropathy.
(Exhibit 23F, p. 35). . . .
Based on her arthritis, pain, examinations and arm fracture, I find the
claimant limited to the light exertional level. . . . Her ability to shop in
Walmart alone indicates greater walking capabilities. She also
reported that she sweeps, does grocery shopping and does laundry.
(Hearing testimony, Exhibits 4E, 8E).
Consultative examiner, Dr. Morris Kutner, M.D., found no signs of
arthritis in her extremities. . . .
With regard to her knee pain, in 2009 he [referring to Dr. Bret
Henricks] only recommended she change her diet and exercise and
felt she only needed to follow up with him in 2 years. (Exhibit 2F, p.
25). Also, in 2012, when she complained of continuing knee pain,
her doctor noted she was doing a lot of moving the weekend before
she complained about pain. (Exhibit 23F, p. 9). This indicates that
her knee only mildly affects her and that she is capable of more
exertion than testified to. She also stated she has no difficulties with
her bathroom hygiene. (Exhibit 4E). Based on her mild back and
knee issues, I find no limitation with her bending. . . . Also, the
claimant recently submitted that she takes no medication except for
Ibuprofen. (Exhibit 17E). . . . In addition, her records note that she
had no pain symptoms except for her arm pain. (Exhibit 24F, p. 37.)
...
Therefore, based on her conservative treatment, her daily activities[,]
her examination notes and Dr. Kutner’s opinion, I find the claimant
does not have further limitations.
(Tr. 28-29.)
The ALJ properly considered Plaintiff’s knee impairment. The record
indicates that Plaintiff complained of left knee pain in October 2009. (Tr. 281.)
Her knee was “mildly swollen with effusion on the medial aspect and in the
popliteal fossa.” (Tr. 282.) She was diagnosed with left knee pain and left knee
osteoarthritis, among others, and was given a prescription for Tramadol. (Id.) As
reflected in Dr. McIntire’s records, Plaintiff complained of knee pain on March 5,

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2010, March 31, 2010, April 28, 2010, May 26, 2010, August 9, 2011, September
8, 2011, October 14, 2011, November 11, 2011, December 9, 2011, January 9,
2012, February 9, 2012, March 19, 2012, April 20, 2012, and May 18, 2012. (Tr.
344-47, 1033-43.)
On March 11, 2011, Dr. Kutner’s examination revealed no evidence of any
arthritis, inflammation, or tenderness, and normal range of motion in the knees,
spine, hips, and ankles, among others. (Tr. 451.) On October 10, 2011, Plaintiff
complained of pain in her left knee and ankle with swelling. (Tr. 691.) The X-ray
from that day showed: “1. Mild degenerative joint disease medial compartment
and patellofemoral compartment. 2. Joint effusion in the left knee.” (Tr. 687.)
On March 22, 2012, when Plaintiff presented to Watson Clinic with a
broken arm, she had “no other areas of pain.” (Tr. 489.) Earlier that month,
Plaintiff reported that she was not taking any medication, other than Valium. (Tr.
651.) On October 16, 2012, Plaintiff was seen at the Emergency Department at
Lakeland Regional Medical Center for left knee pain and swelling lasting for three
days. (Tr. 581.) She reported she “was doing a lot of moving over the weekend
but [did] not recall any specific trauma.” (Id.) She also reported having “similar
symptoms in the past which eventually resolved spontaneously.” (Id.) Plaintiff’s
pain was a three. (Tr. 596.) On examination, Plaintiff had “prepatellar swelling
and a palpable effusion,” “some mild erythema of the skin,” but “no significant
warmth,” and a “good range of motion of flexion extension.” (Tr. 583.) The X-ray
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of the knee was interpreted as showing mild degenerative changes. (Id.) The Xray report provided: “There is moderate arthropathy involving predominately the
medial joint compartment. Since the previous examination on 10/10/2011, there
has been interval progression of the arthropathy. No fracture or other acute
abnormalities appreciated.” (Tr. 607.)
On October 30, 2012, Plaintiff complained of knee pain, relieved by
medication. (Tr. 852, 945.) On examination, there was minimal swelling and
tenderness in her left knee. (Tr. 947-48.) Plaintiff was advised “to elevate and
rest [her] knee when swelling occurs” and “use Tylenol of Ibuprofen for pain or
fever.” (Tr. 948.) On November 10, 2012, she had a normal musculoskeletal
exam and reported no pain. (Tr. 909, 937.) On November 25, 2012, Plaintiff
complained of left knee pain, but she had normal gait and negative
musculoskeletal examination. (Tr. 951, 953.)
At the hearing, Plaintiff testified that she helped with household chores,
such as loading the dishwasher, preparing meals, and sweeping the floor, and
took care of dogs and chickens. (Tr. 48, 59.) She stated she could not work
because she had no vehicle and walking to the bus stop was very difficult given
her knee and hip pain. (Tr. 48.) Plaintiff testified her knee would swell for three
to five days anywhere from one to three times a month. (Tr. 50-51.) In a
Function Report, Plaintiff indicated that she went to church, Walmart, and
doctors’ offices on a regular basis, drove to the store, did laundry, and walked
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around the yard. (Tr. 156, 168-69.)
The ALJ considered the record evidence and limited Plaintiff to a reduced
range of light work. The ALJ acknowledged Plaintiff’s complaints of knee pain
and swelling and her diagnosis of osteorthritis, but given her daily activities, Dr.
Kutner’s examination findings, her conservative treatment, and her reports of no
pain symptoms and no medications at times, the ALJ concluded that further
limitations were not warranted. This conclusion is supported by substantial
evidence. Although the ALJ was apparently confused as to Dr. Henricks’s report,
which pertained to Plaintiff’s osteopenia, rather than osteoarthritis, this was only
one, among several, reasons that the ALJ considered with respect to Plaintiff’s
knee impairment.3 To the extent Plaintiff is asking the Court to re-weigh the
evidence, the Court cannot do so. The question on appeal is not whether the
Court would have arrived at the same decision on de novo review; rather, the
Court’s review is limited to determining whether the ALJ’s findings are based on
correct legal standards and are supported by substantial evidence. Based on the
foregoing, the Court finds that the ALJ’s consideration of Plaintiff’s knee
impairment is supported by substantial evidence.

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In December 2008, Plaintiff was diagnosed with osteopenia. (Tr. 285.) Dr. Bret
Henricks, who read the results of the bone density X-ray of the lumbar spine and left
hip, noted: “Treatment recommendations include risk factor modification, healthy diet,
moderate exercise, calcium supplements and multi-vitamins including vitamin D.
Medical therapy with hormone replacement should be considered.” (Id.) On July 20,
2011, Plaintiff underwent a whole body bone scan, the results of which were normal.
(Tr. 1031.)
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Accordingly, it is ORDERED:
1.

The Commissioner’s decision is AFFIRMED.

2.

The Clerk of Court is directed to enter judgment consistent with this

Order and close the file.
DONE AND ORDERED at Jacksonville, Florida, on February 24, 2016.

Copies to:
Counsel of Record

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