SOBER v. ASTRUE
Filing
22
MEMORANDUM DECISION AND ORDER. The docket shall reflect that Carolyn W. Colvin has been substituted as the Dft in this action. The decision of the Commissioner is AFFIRMED, and this action is DISMISSED. The clerk is directed to close the file. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on September 19, 2013. CAROLYN W COLVIN added. MICHAEL ASTRUE (COMMISSIONER OF SOCIAL SECURITY) terminated. (kvg)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
CHERYL YVONNE SOBER,
Plaintiff,
vs.
Case No.: 5:12cv135/EMT
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.
______________________________/
MEMORANDUM DECISION AND ORDER
This case has been referred to the undersigned magistrate judge for disposition pursuant to the
authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the parties’ consent to magistrate
judge jurisdiction (see docs. 9, 10). It is now before the court pursuant to 42 U.S.C. § 405(g) of the
Social Security Act (“the Act”), for review of a final decision of the Commissioner of the Social
Security Administration (“the Commissioner”) denying Plaintiff’s application for disability insurance
benefits (“DIB”) under Title II of the Act, 42 U.S.C. §§ 401–34.2
Upon review of the record before this court, it is the opinion of the undersigned that the
findings of fact and determinations of the Commissioner are supported by substantial evidence and
comport with proper legal principles. The decision of the Commissioner is therefore affirmed.
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant
to Fed. R. Civ. P. 25(d), she is therefore automatically substituted for Michael J. Astrue as the Defendant in this case.
2
The record reflects that Plaintiff also filed an application for supplemental security insurance (“SSI”)
benefits under Title XVI of the Act, 42 U.S.C. §§ 1381–83 (tr. 152–55; 162–65), but the ALJ’s decision and the
parties’ briefs make no mention of an SSI application. As Plaintiff’s SSI application is not at issue in this appeal, the
court does not discuss it further.
Page 2 of 28
I.
PROCEDURAL HISTORY
On May 15, 2008, Plaintiff filed an application for DIB in which she alleged disability
beginning June 27, 2007 (tr. 15).3 Her application was denied initially and on reconsideration.
Thereafter Plaintiff requested a hearing before an administrative law judge (“ALJ”), who conducted
a hearing on May 20, 2010, at which Plaintiff, who was represented by counsel, testified; a vocational
expert (“VE”) also testified. On September 22, 2010, the ALJ issued a decision in which he found
that Plaintiff was “not disabled,” as defined under the Act, at any time through the date of his decision
(tr. 15–22). The Appeals Council subsequently denied Plaintiff’s request for review. Thus, the
decision of the ALJ stands as the final decision of the Commissioner, subject to review in this court.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007). This appeal followed.
II.
FINDINGS OF THE ALJ
In his September 22, 2010, decision the ALJ made the following findings:
1.
Plaintiff meets the insured status requirements of the Act through December 30, 2012.4
2.
Plaintiff has not engaged in substantial gainful activity since June 27, 2007, her alleged
disability onset date.5
3.
Plaintiff has the following severe impairments: degenerative disc disease and asthma.
4.
Plaintiff does not have an impairment or combination of impairments that meets or
medically equals a listed impairment.
3
All references to “tr.” refer to the transcript of Social Security Administration record filed on August 20,
2012 (doc. 12). In addition, the page numbers refer to those found on the lower right-hand corner of each page of the
transcript, as opposed to those assigned by the court’s electronic docketing system or any other page numbers that may
appear.
4
To be qualified to receive DIB, a claimant must accumulate twenty or more calendar “quarters of coverage”
within the forty calendar quarters prior to filing for benefits. 42 U.S.C. § 423(c)(1)(B)(i). A “quarter of coverage”
is a period of three months during which one earns a certain amount of money in either wages or self-employment
income. 42 U.S.C. § 413(a). Pursuant to § 413(a)(1), “[t]he term ‘quarter’, and the term ‘calendar quarter’, mean a
period of three calendar months ending on March 31, June 30, September 30, or December 31.” (emphasis added).
Accordingly, in this case it appears the ALJ’s decision contains a clerical error with respect to the date through which
Plaintiff meets the insured status requirements of the Act. Based on § 413(a)(1), the date should be December 31,
2012, rather than December 30, 2012.
5
The relevant period in this case therefore is June 27, 2007 (date of alleged disability onset), through
September 22, 2010 (date of the ALJ’s decision), even though Plaintiff is insured for DIB purposes through December
2012.
Case No.: 5:12cv135/EMT
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5.
Plaintiff has the residual functional capacity (“RFC”) to perform light work, with
certain restrictions.6
6.
Plaintiff is capable of performing her past relevant work as a manger (retail store),
work that does not require the performance of activities precluded by her RFC.
7.
Plaintiff has not been under a disability, as defined in the Act, from June 27, 2007,
through the date of the decision.
III.
STANDARD OF REVIEW
Review of the Commissioner’s final decision is limited to determining whether the decision
is supported by substantial evidence from the record and was a result of the application of proper
legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may reverse
the decision of the [Commissioner] only when convinced that it is not supported by substantial
evidence or that proper legal standards were not applied.”); see also Lewis v. Callahan, 125 F.3d
1436, 1439 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A
determination that is supported by substantial evidence may be meaningless . . . if it is coupled with
or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),
superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214
(11th Cir. 1991). As long as proper legal standards were applied, the Commissioner’s decision will
not be disturbed if in light of the record as a whole the decision appears to be supported by substantial
evidence. 42 U.S.C. § 405(g); Falge, 150 F.3d at 1322; Lewis, 125 F.3d at 1439; Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a scintilla, but not a
preponderance; it is “such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d
6
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls.” 20 C.F.R. § 404.1567(b).
Plaintiff is restricted to lifting and carrying twenty pounds occasionally and ten pounds frequently (tr. 18).
Plaintiff can sit for six hours and stand for six hours in an eight-hour workday. Plaintiff cannot climb. Plaintiff should
not perform tasks involving hazards or unprotected heights. Plaintiff can occasionally balance, stoop, kneel, crouch
and crawl. Plaintiff should have only occasional exposure to pulmonary irritants and chemicals. Plaintiff can
frequently perform gross manipulation tasks bilaterally. Plaintiff can frequently perform fine manipulation tasks
bilaterally. Plaintiff is limited to occasional exposure to wetness and humidity.
Case No.: 5:12cv135/EMT
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842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L. Ed.
126 (1938)); Lewis, 125 F.3d at 1439. The court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990) (citations omitted).
Even if the evidence preponderates against the
Commissioner’s decision, the decision must be affirmed if supported by substantial evidence. Sewell
v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
The Act defines a disability as an “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). To qualify as a disability the physical or mental impairment must
be so severe that the claimant is not only unable to do her previous work, “but cannot, considering
[her] age, education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy.” Id. § 423(d)(2)(A). Pursuant to 20 C.F.R. § 404.1520(a)–(g),7 the
Commissioner analyzes a disability claim in five steps:
1.
If the claimant is performing substantial gainful activity, she is not disabled.
2.
If the claimant is not performing substantial gainful activity, her impairments must be
severe before she can be found disabled.
3.
If the claimant is not performing substantial gainful activity and she has severe
impairments that have lasted or are expected to last for a continuous period of at least twelve months,
and if her impairments meet or medically equal the criteria of any impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1, the claimant is presumed disabled without further inquiry.
4.
If the claimant’s impairments do not prevent her from doing her past relevant work, she
is not disabled.
5.
Even if the claimant’s impairments prevent her from performing her past relevant work,
if other work exists in significant numbers in the national economy that accommodates her RFC and
vocational factors, she is not disabled.
7
In general, the legal standards applied are the same regardless of whether a claimant seeks DIB or SSI, but
separate, parallel statutes and regulations exist for DIB and SSI claims (see 20 C.F.R. §§ 404, 416). Therefore,
citations in this Order should be considered to refer to the appropriate parallel provision. The same applies to citations
of statutes or regulations found in quoted court decisions.
Case No.: 5:12cv135/EMT
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The claimant bears the burden of establishing a severe impairment that keeps her from
performing her past work. 20 C.F.R. § 404.1512. If the claimant establishes such an impairment, the
burden shifts to the Commissioner at step five to show the existence of other jobs in the national
economy which, given the claimant’s impairments, the claimant can perform. MacGregor v. Bowen,
786 F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner carries this burden, the claimant must then
prove she cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987).
IV.
HEARING TESTIMONY AND MEDICAL HISTORY8
A.
Hearing Testimony
Plaintiff testified at the May 20, 2010, administrative hearing that she is 5’5” and weighs 212
pounds (tr. 31). Born on June 16, 1959, Plaintiff was fifty years of age at the time of the hearing (id.).
Plaintiff stated that she has a Florida driver’s license and drives “around town” (tr. 32). She
completed the tenth grade and later obtained a General Equivalency Diploma (id.). Her past work
includes jobs as a shoe salesperson and a retail store manager (tr. 34–37).
Plaintiff stated that she stopped working after being involved in an automobile accident in June
2007 which caused a whiplash injury to her neck and the aggravation of a pre-existing back problem
(tr. 33). According to Plaintiff, she suffers constant, severe pain in her back and legs (tr. 33; 42–43);
pain in her neck (tr. 33; 44); and pain, numbness, and cramping in her hands (tr. 44–45). Plaintiff
stated that she had been seeing “Dr. Stringer . . . [for her back problems] under workman’s comp and
then I settled . . . with workman’s comp last year and I haven’t seen him since” (tr. 39). Plaintiff
explained that she had spent most of the $8000.00 in the Worker’s Compensation settlement money
on dental expenses rather than on continued treatment with Dr. Stringer because she had limited funds
(tr. 41); also, she could obtain pain and muscle relaxant medications (which she “live[s] on” (tr. 40))
from a different physician, Dr. Sullivan (tr. 39). Additionally, the treatments from Dr. Stringer, which
consisted mainly of repeated injections, had only helped her “for a little while and that’s it” (tr. 40).
Plaintiff agreed that she had continued under Dr. Stringer’s care only until reaching a settlement with
8
The information in this section is largely derived from references to the record contained in the ALJ’s
opinion and the parties’ briefs.
Case No.: 5:12cv135/EMT
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Worker’s Compensation because, as the ALJ put it, “somebody else was paying the bill” (id.). In
addition to her neck and back problems, Plaintiff has shortness of breath; she has been told to stop
smoking but admits she continues to smoke one pack of cigarettes per day (tr. 41). According to
Plaintiff, her breathing problems are exacerbated by strong smells, exertion, and extreme temperatures
(tr. 52).
With respect to her daily activities, Plaintiff testified that she shops, cooks and bakes, does
laundry, and goes to bingo about once a week (tr. 46–47). She does not do any cleaning or yard work
(tr. 47). Plaintiff does not regularly participate in social activities outside her home (tr. 48). In May
2010 Plaintiff traveled from Chipley, Florida, to Pensacola, Florida, to attend her son’s graduation
(tr. 47), and in 2008 she accompanied her family on a trip to Pennsylvania (tr. 48). She has not
recently traveled outside her local area, other than to attend doctors’ appointments in Panama City,
Florida (id.). Plaintiff does not exercise, but she does walk the family’s dog twice a day on a leash
in her yard (id.). Plaintiff is able to walk up to an hour if she is able to hold onto something (tr. 46)
but otherwise can only stand approximately fifteen to thirty minutes, with some movement (tr. 50).
After Plaintiff’s testimony concluded, the ALJ posed several hypothetical questions to the VE.
In the first hypothetical question, the ALJ asked the VE to assume an individual of the same age and
education as Plaintiff with a similar vocational background (tr. 57). The individual could lift up to
twenty pounds occasionally and lift up to ten pounds frequently; in an eight-hour work day she could
sit six hours and stand six hours (id.). The individual could never climb and could occasionally
balance, stoop, kneel, crouch, and crawl (id.). She could never be exposed to heights or hazards (id.).
She could only occasionally be exposed to pulmonary irritants, chemicals, and wetness and humidity
(tr. 57–58). The individual was capable of frequent gross and fine manipulation bilaterally (tr. 58).
The VE testified that such an individual would be able to perform the work activities required of a
retail store manager, as defined in the Dictionary of Occupational Titles (id.). She would not be able
to perform the work activities required of a shoe salesman (id.).
B.
Relevant Medical History
1.
Case No.: 5:12cv135/EMT
Treating Sources
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The transcript contains numerous records from neurologists Douglas L. Stringer, M.D., and
Merle P. Stringer, M.D. For the sake of simplicity, the court refers to these physicians as one
individual, “Dr. Stringer”9 (tr. 39; 519).10
In February 2006 Plaintiff underwent an electromyogram and nerve conduction velocity
(“EMG-NCV”) study. The NCV study of the right leg was normal (tr. 290). The EMG study of the
back muscles revealed findings “consistent with posterior primary rami root irritation in the lower
lumbar paraspinous region suggestive of radiculopathy”; clinical correlation was suggested (id.).
Also in February 2006, magnetic resonance imaging (“MRI”) of the lumbar spine showed
degenerative changes, facet hypertrophy of L4-5 and L5-S1, and a possible small synovial cyst;
lumbar x-rays were normal (tr. 518). In a June 2006 examination, Dr. Stringer found marked
tenderness in the mid and lower lumbar area, marked muscle spasm, and limited bending (id.).
Straight leg raising resulted in low back and SI [sacroiliac] joint pain, with no radicular component
(id.). Dr. Stringer diagnosed Plaintiff with “[l]umbar disc disease, low back pain, no evidence of
nerve root compression” and “[l]umbar fact pain, with trigger point tenderness, SI pain, worst pain
is the SI pain” (id.). Some improvement reportedly resulted from the facet injection Plaintiff
underwent in July (tr. 516). In August 2006 Dr. Stringer found evidence of paravertebral muscle
spasm, with some moderate limitation of flexion and extension due to low back pain that was
nonradicular (tr. 512). Straight leg raising resulted in mild low back pain (tr. 511). Plaintiff wished
to proceed with SI joint and lumbar trigger point injections (id.). In November 2006 Dr. Stringer
noted that Plaintiff’s pain reportedly had decreased following the injections “from a 9 to a 2” (tr. 502).
Plaintiff reported an increase in back pain in December 2006 (tr. 501). Noting parasthesias, pain,
and numbness in Plaintiff’s left leg and foot, Dr. Stringer recommended EMG-NCV studies and the
use of pain and muscle relaxant medications (tr. 499).
9
Dr. Merle P. Stringer and Dr. Douglas L. Stringer work in the same facility. Plaintiff saw each of them
frequently and, it appears, interchangeably as their records are co-mingled. For these reasons, the court does not
distinguish between the two physicians in describing the treatment she received from them.
10
The date of the first office treatment note by Dr. Stringer that is included in the transcript appears to be
May 2006 (tr. 519). Plaintiff was last seen by Dr. Stringer in May 2009 (tr. 788–90) but apparently was considered
to be a patient at least until July 2009 (see tr. 787). The record also reflects that Plaintiff reached a settlement with
Worker’s Compensation in June 2009, which was finalized in August 2009 (see, generally, tr. 126–51).
Case No.: 5:12cv135/EMT
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In January 2007, Dr. Stringer noted that an EMG-NCV study of Plaintiff’s left leg performed
in December 2006 was normal, with no evidence of nerve root compression (tr. 495; 287 (stating
there was no “evidence of lumbosacral radiculopathy”)). Physical examination revealed moderate
tenderness in the lumbar area and both SI joints and moderate muscle spasm (tr. 495). Forward
bending was 70% of normal, and straight leg raising caused low back pain (id.). Plaintiff reported
improvement following physical therapy and the use of a transcutaneous electrical nerve stimulation
(“TENS”) device (tr. 496). Plaintiff reported increased pain, mostly in the low back, in February
2007 and March 2007 (tr. 490; 492). An MRI obtained in March 2007 showed minimal facet
degenerative changes at L4-5 and L5-S1, with no nerve root compression (tr. 486). Physical
examination showed back tenderness, some paravertebral muscle spasm, and moderate limitation of
flexion and extension due to pain that was nonradicular (tr. 489). On a follow-up visit in April 2007
Plaintiff reported that her back pain was worse with increased activity and the traveling required of
her job (tr. 487). Dr. Stringer found moderate tenderness and muscle spasm in the lumbar spine and
moderate tenderness over the SI joints (tr. 486). Forward bending was good at 70% of normal;
straight leg raising caused low back pain with no radicular component (id.). In May 2007 Plaintiff
reported some low back pain to Dr. Stringer (tr. 485), who noted that Plaintiff was able to work and
should continue doing her back exercises on a daily basis (tr. 483).
On June 26, 2007, the date Plaintiff alleges she became disabled, Plaintiff was involved in
what was described in a hospital emergency room report as a slow speed motor vehicle accident
resulting in mild property damage in which her car was rear-ended by another vehicle (tr. 309).
Plaintiff initially reported moderate pain; an examination was mostly normal, other than a finding of
back tenderness (id.). Plaintiff presented to Dr. Stringer shortly after the accident with complaints of
pain in her arms, neck, back, and legs; thoracic pain; and paresthesias of the upper extremities (tr.
482). Radiographs taken in June 2007 revealed minimal spondylosis of Plaintiff’s thoracic spine and
“very minimal” spondylosis of her cervical spine (tr. 293). Lumbar spine x-rays showed degeneration
but no acute changes (tr. 480). Dr. Stringer recommended that Plaintiff attend outpatient physical
therapy, “stay off of work,” and obtain various radiological studies (id.). An MRI of the cervical
spine revealed some mild disc bulge at C4-5 but was otherwise unremarkable; there was no
significant nerve root compression or spinal stenosis (tr. 477). An MRI of the lumbar spine was
normal (id.). A NCV study obtained in early July 2007 was indicative of bilateral carpal tunnel
Case No.: 5:12cv135/EMT
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syndrome, worse on the right; clinical correlation was suggested (tr. 284). An EMG study of both
upper extremities that was conducted several weeks later was normal and showed no clear evidence
of cervical radiculopathy (tr. 607).
During a July 2007 visit to Dr. Stringer, Plaintiff again complained of pain in her neck, arms,
lower back and legs, as well as numbness and tingling in her hands (tr. 479). On examination, Dr.
Stringer found some evidence of paracervical muscle spasm of the neck, with moderate limitation of
flexion and extension (id.). Tinel’s sign and Phalen’s manuever were positive11 (tr. 478). There was
some evidence of thoracic and lumbar paravertebral muscle spasm, with moderate limitation of
flexion and extension, secondary to pain which was nonradicular (id.). Straight leg raising tests
resulted in some mild low back pain (id.). Among other recommendations, Dr. Stringer encouraged
Plaintiff to follow through with physical therapy, to wear bilateral wrist splints at night, and to remain
off work until she returned in two weeks (tr. 477). Plaintiff continued to complain of pain when she
saw Dr. Stringer on her next visit (tr. 476). He recommended that she continue with physical therapy
and that she stay off work for one more week, then return to half-days on light duty (tr. 474). Dr.
Stringer also prescribed pain and muscle relaxant medications (id.). In August 2007 Plaintiff reported
to Dr. Stringer that she was still off work because her employer was not willing to have her work halfdays (tr. 473). On examination, Dr. Stringer found some evidence of paracervical muscle spasm, with
moderate limitation of flexion and extension (tr. 472). Extremities had good peripheral pulses; there
was no mention of positive tests for carpal tunnel syndrome (id.). There was some evidence of
thoracic and lumbar paravertebral muscle spasm, with moderate limitation of flexion and extension,
secondary to pain which was nonradicular (id.). Straight leg raising tests resulted in some mild low
back pain (id.). Dr. Stringer noted that Plaintiff continued to be symptomatic although she had
improved with physical therapy (tr. 471). Also in August 2007 Dr. Stringer recommended a series
of cervical facet injections, following which he advised Plaintiff to try to return to work (tr. 468).
Plaintiff reported in September 2007 to Dr. Stringer that her neck pain was significantly improved but
11
The website of the U.S. National Library of Medicine, National Institutes of Health, states that Tinel’s sign
and Phalen’s test “are two provocative tests used in the diagnosis of carpal tunnel syndrome.” See
http://www.ncbi.nlm.nih.gov/pubmed/1461811 (last visited September 18, 2013).
Case No.: 5:12cv135/EMT
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her back pain had increased (tr. 467). Dr. Stringer recommended that Plaintiff undergo lumbar facet
injections (tr. 323).
A discharge note dated October 22, 2007, from the Northwest Florida Wellness Center, where
Plaintiff was given physical therapy from July to September 2007 (tr. 310–13), indicates good
progress with respect to neck pain but low back pain that had not changed and continued to be
problematic (tr. 311).
In November 2007 Plaintiff presented for a follow-up visit to Dr. Stringer, reporting neck pain
and low back pain which had improved with lumbar facet injections (tr. 464). On examination, Dr.
Stringer found marked tenderness of the neck, with increased pain on extension (id.). Extremities had
good peripheral pulses, with no mention of positive tests for carpal tunnel syndrome (id.). There was
moderate tenderness to palpation in the mid and lower lumbar area and both SI joints, with moderate
muscle spasm and good forward bending to 70% of normal (id.). Straight leg raising caused low back
and SI joint pain, with no radicular component (id.). Dr. Stringer prescribed medications for pain and
muscle spasms and advised a return visit in one month (tr. 463).
In January 2008, Plaintiff reported to Dr. Stringer that she was experiencing pain in her neck,
upper and lower extremities, and low back; she also had some numbness of the hands and feet (tr.
462). On examination, Dr. Stringer found some evidence of paracervical muscle spasm, with
moderate limitation of flexion and extension (tr. 461). Extremities had good peripheral pulses; there
was no mention of positive tests for carpal tunnel syndrome (id.). There was some evidence of
paravertebral muscle spasm, with moderate limitation of flexion and extension, secondary to pain
which was nonradicular (id.). A neurological examination was unremarkable (id.). Dr. Stringer
indicated that trigger point injections of the SI and lumbar spine would be scheduled (tr. 460). After
completing the injections Plaintiff reported to Dr. Stringer in March 2008 that her back pain had
diminished from “a 10 to about a 3–4,” though she still had some pain in her neck and arms and
numbness of the hands and feet (tr. 454). Dr. Stringer found some evidence of paracervical muscle
spasm, with moderate limitation of flexion and extension (id.). Extremities had good peripheral pulses
(tr. 453). There was some evidence of thoracic and lumbar paravertebral muscle spasm, with
moderate limitation of flexion and extension, secondary to pain which was nonradicular (id.). Straight
leg raising tests resulted in some mild low back pain (id.). Plaintiff did not want to try further
Case No.: 5:12cv135/EMT
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physical therapy but did want to undergo cervical injections. Dr. Stringer advised her to continue her
neck and back exercises daily, prescribed pain and muscle relaxant medications, and agreed to
schedule cervical facet injections (tr. 452). Plaintiff was seen by Dr. Stringer in April 2008, when
Dr. Stringer noted that the cervical facet injections had been effective in decreasing Plaintiff’s neck
pain “from a 9.5 to a 10 to approximately a 3” (tr. 450); he recommended continuing the injections and
he also prescribed pain and muscle relaxant medications (tr. 449). Following an additional injection
Plaintiff’s neck pain reportedly was approximately “a 2–3” (tr. 446). Dr. Stringer agreed to continue
the cervical facet injections (tr. 444). In May 2008, after a third cervical facet injection, Plaintiff’s
neck pain was described by Dr. Stringer as being “about a 3–4”; she had some lower back pain but
no radicular leg pain (tr. 440). Dr. Stringer found some evidence of paracervical muscle spasm on
examination of Plaintiff neck, with moderate limitation of flexion and extension (id.). Extremities had
good peripheral pulses, and there was no mention of positive tests for carpal tunnel syndrome (tr.
441). There was evidence of paravertebral muscle spasm, with moderate limitation of flexion and
extension, secondary to pain which was nonradicular (id.). Straight leg raising tests resulted in some
mild low back pain (id.). Dr. Stringer again agreed to continue the injections as Plaintiff requested
(tr. 442). Dr. Stringer noted in June 2008 that Plaintiff had completed her cervical facet injections
with an overall improvement in neck pain (tr. 578). She also reported some pain involving her low
back but no radicular leg pain (id.). Plaintiff advised Dr. Stringer that she was in the process of filing
for Social Security disability. Dr. Stringer found some evidence of paracervical muscle spasm, with
moderate limitation of neck flexion and extension (id.). He also found paravertebral muscle spasm,
with moderate limitation of back flexion and extension that was nonradicular (tr. 577). Straight leg
raising resulted in mild low back pain (id.). Dr. Stringer prescribed medications for pain and muscle
spasms (id.). Several weeks later, when Plaintiff again saw Dr. Stringer, he noted that her neck pain
was “much better” but that she had increasing pain in her back and muscle spasms (tr. 576). Dr.
Stringer recommended lumbar facet injections (tr. 572). He also advised that a functional capacity
evaluation (“FCE”) that had been completed in February 2008 be repeated as the examiner felt
Plaintiff had “not exhibit[ed] maximum effort” (id.).
In July 2008 Plaintiff underwent the FCE advised by Dr. Stringer (tr. 567–71). The examiner
reported that Plaintiff had given “maximum, consistent effort” (tr. 567). The FEC report indicates that
Case No.: 5:12cv135/EMT
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Plaintiff’s work capabilities met the light to low medium physical demand level, except for overhead
lifting and right-handed carrying (tr. 567).12
Plaintiff saw Dr. Stringer a few days after completing the July 2008 FCE, at which time Dr.
Stringer released Plaintiff to return to light-duty work within the restrictions designated in the FCE
(tr. 564). On examination, Dr. Stringer found some evidence of paracervical muscle spasm, with
moderate limitation of flexion and extension (tr. 566). Extremities had good peripheral pulses, with
no mention of positive tests for carpal tunnel syndrome (tr. 565). There was evidence of lumbar
paravertebral muscle spasm, with moderate limitation of flexion and extension, secondary to pain
which was nonradicular (id.). Straight leg raising tests resulted in some mild low back pain (id.).
Dr. Stringer prescribed medications for pain and muscle spasms (tr. 564). He noted that Plaintiff had
reached maximum medical improvement with a 3% impairment rating to the whole person based on
her cervical spine symptomatology and a 3% impairment to the whole person based on her lumbar
spine impairment, for a total of a 6% impairment rating for Worker’s Compensation purposes (id.).
In August 2008 Plaintiff reported to Dr. Stringer improvement in her back pain following a lumbar
facet injection (tr. 561). Plaintiff wished to continue the lumbar injections, and Dr. Stringer agreed
to schedule them (tr. 559). He also prescribed pain and muscle relaxant medications (id.). He noted
Plaintiff was not working (tr. 556). By early September 2008 Plaintiff had completed her lumbar facet
injections “with improvement in her back pain”; she experienced only occasional leg pain and some
pain in the SI joints (tr. 551). On physical examination, Dr. Stringer found some evidence of
paracervical muscle spasm, with moderate limitation of flexion and extension (id.). Extremities had
good peripheral pulses; there was no mention of positive tests for carpal tunnel syndrome (tr. 550).
There was some evidence of lumbar paravertebral muscle spasm, with moderate limitation of flexion
and extension, secondary to pain which was nonradicular (id.). Straight leg raising tests resulted in
some mild low back pain (id.). Dr. Stringer agreed to continue the injections and prescribed pain and
muscle relaxant medications (tr. 549). At her second September 2008 visit, Plaintiff reported
increased back and leg pain (tr. 546). On examination, Dr. Stringer found mild to moderate tenderness
12
The FCE also limits Plaintiff’s crawling, standing, and stair climbing to a maximum of 2/3 of the workday;
kneeling is limited to 1/3 of the workday (tr. 570). Plaintiff can perform the following tasks up to 100% of the
workday: sitting, walking, stepladder climbing, balancing, and right and left upper extremity coordination (Plaintiff was
not able to complete the assessment for crouching and squatting due to lower back pain and leg pain) (id.).
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to palpation of the cervical spine, with mild to moderate muscle spasm; neck movement was 70% of
normal (tr. 547). Extremities had good peripheral pulses, with no mention of positive tests for carpal
tunnel syndrome (id.). There was minimal tenderness in the thoracic area of the spine, with no muscle
spasm and flexion and extension 80–90% of normal (id.). There was marked tenderness in the lumbar
area and marked muscle spasm, with bending and extension significantly restricted (id.). Straight leg
raising tests resulted in low back pain (id.). Dr. Stringer recommended outpatient physical therapy,
an MRI scan of the lumbar spine, and an EMG-NVC study of the lower extremities (tr. 548).
In early October 2008 Plaintiff complained of back and leg pain and paresthesias in her lower
extremities, neck and arm pain, headaches, and muscle spasm (tr. 543). On examination, Dr. Stringer
found marked tenderness of the cervical spine and limitation of range of motion of the neck to 60%
of normal (tr. 544). There was minimal tenderness of the thoracic spine and mild tenderness of the
lumbar spine (id.). Bending was 80% of normal with very little pain on extension; there was marked
tenderness over the SI joints and marked lumbar paraspinous muscle tenderness (id.). Straight leg
raising tests resulted in low back and SI joint pain (id.). Dr. Stringer recommended lumbar, SI, and
trigger point injections; he also prescribed pain and muscle relaxant medications (tr. 545). An EMGNCV study taken in late October 2008 was normal, with no clear electro-physiological evidence of
a lumbosacral radiculopathy (tr. 777). An MRI of the lumbar spine showed no focal disc protrusion,
spinal canal compromise, or foraminal stenosis (tr. 778). There was early degenerative disease at
levels L3-4 and L4-5, with suspected subtle annular tears at those levels (id.). Plaintiff reported less
back pain at a November 2008 visit (tr. 775); her physical therapy and medications were continued
(tr. 773), and a few days later she underwent an additional lumbar injection (tr. 777). Dr. Stringer
diagnosed probable carpal tunnel syndrome in November 2008 (tr. 768). His physical examination
revealed positive signs for carpal tunnel syndrome (tr. 769). There was moderate tenderness in the
lumbar area and moderate muscle spasm, with good forward bending (id.). Straight leg raising tests
resulted in some mild low back pain (id.). Following facet and SI joint injections, Plaintiff reported
a dramatic improvement in her back and leg pain (tr. 765). Additional injections were planned (tr.
763). After two more lumbar injections, Plaintiff reported in December 2008 to Dr. Stringer that she
had minimal back pain and no leg pain (tr. 760). She also had no numbness, weakness, or
paresthesias. She could stand, sit, and walk more with less discomfort and required less medication
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(tr. 703). There is no mention of findings or symptoms related to carpal tunnel syndrome (id.). An
EMG/NCV study of the lower extremities was normal (tr. 701).
In January 2009 Plaintiff complained of pain in her back and legs (tr. 703). Examination
revealed marked tenderness and muscle spasm in the cervical spine, with good range of motion (tr.
701). There was also marked tenderness and muscle spasm in the lumbar area and both SI joints (id.).
Straight leg raising caused back pain and right leg pain (id.). Dr. Stringer recommended lumbar
diagnostic facet block injections (tr. 700). After the lumbar diagnostic facet block injections Plaintiff
exhibited a “dramatic improvement” in February 2009 (tr. 751). Neurological and extremities
examinations were unremarkable, including no mention of any findings related to carpal tunnel
syndrome (tr. 750). There was minimal tenderness and muscle spasm in the cervical spine and good
range of motion of the neck (id.). There was marked tenderness in the lumbar area and both SI joints,
however, as well as marked muscle spasm; bending was significantly restricted (id.). Straight leg
raising caused low back and SI joint pain, without radiculopathy (id.). More injections were planned
(tr. 695). Improvement was again noted in March 2009 after additional injections (id.); Plaintiff
wished to proceed with radio frequency thermocoagulation lesioning for her lumbar pain on the right
side, as well as SI joint and right lumbar trigger point injections (tr. 690). On examination, Dr.
Stringer made no findings concerning the cervical spine; he noted evidence of lumbar paravertebral
muscle spasm and SI joint tenderness, with moderate limitation of flexion and extension (tr. 692).
Straight leg raising tests resulted in mild low back pain in the sitting position (id.). There is no
mention of positive findings related to carpal tunnel syndrome (tr. 693). After undergoing
thermocoagulation lesioning therapy Plaintiff reported significant improvement in her right-side back
pain but pain in both SI joints and left-side lumbar pain remained, with occasional leg pain (id.).
Plaintiff wished to proceed with right-side SI and trigger point injections as well as left-side lumbar
diagnostic facet blocks (tr. 684). She was also prescribed pain medications (id.). Plaintiff’s rightside facet and SI joint pain was significantly decreased in April 2009 following the injections, but she
still had some pain; she also had moderate to severe SI joint and facet pain on the left side (tr. 737;
738). Dr. Stringer reported that Plaintiff would follow through with the left and right-side trigger
point injections and left-side SI joint injections and undergo diagnostic facet blocks on the left side
(tr. 736). After her injections and radiofrequency thermocoagulation therapy, during another April
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2009 visit to Dr. Stringer Plaintiff reported very little pain on the right side (tr. 733). Plaintiff’s “main
difficulty now is pain in her left side,” but the recommended diagnostic lumbar facet blocks had not
yet been authorized (id.). Examination of the cervical spine revealed minimal tenderness and muscle
spasm; there was also minimal tenderness of the thoracic area without muscle spasm and good flexion
and extension (tr. 732). There was moderate tenderness in the lumbar spine and both SI joints, with
muscle spasm that was worse on the left and minimal on the right (id.). Lumbar flexion was 50–60%
of normal, with lateral bending and extension 20% of normal (id.). Straight leg raising caused low
back and SI joint pain, with no radicular component (id.). There was no mention of a diagnosis of
carpal tunnel syndrome (tr. 731). Dr. Stringer prescribed pain medication and discontinued Plaintiff’s
muscle relaxant medication; he also noted that Plaintiff would contact her insurance company to obtain
authorization for the left-side diagnostic lumbar facet blocks (tr. 731). In May 2009 Plaintiff reported
some pain involving her low back and right foot and some foot numbness (tr. 790). Dr. Stringer did
not record any findings with respect to the cervical spine; as to the lumbar spine he found some
evidence of lumbar paravertebral muscle spasm, with moderate limitation of flexion and extension and
lateral rotation, secondary to pain which was nonradicular (tr. 789). Plaintiff was tender in the left
SI joint and lumbar facet joints, with increased discomfort on extension and bending to the left (id.).
Straight leg raising tests resulted in some mild low back pain and right leg pain (id.). Carpal tunnel
syndrome is not included among Plaintiff’s diagnoses (tr. 788). Dr. Stringer indicated that Plaintiff
wished to proceed with a diagnostic left lumbar facet block (id.). Plaintiff was to work with her
attorney to try to obtain authorization for these procedures (id.). Additional notations, in late May
2009 to early July 2009 indicate that Plaintiff had called about her medications but had not come in
for examinations; additionally, the records reflect that Dr. Stringer’s office had contacted Worker’s
Compensation for authorization of Plaintiff’s lumbar injections but the calls had not been returned (tr.
787).
The record contains a pre-printed Clinical Assessment of Pain (“CAP”) form which is
undated and bears an illegible signature with no printed name below it to clearly identify the signer
(tr. 785). The CAP was supplied to the Office of Disability and Adjudication and Review by
Plaintiff’s counsel on May 11, 2009 (tr. 784), and the signature appears to match others belonging to
Dr. Douglas Stringer (see tr. 785; 495; 499). The court therefore assumes that the CAP was prepared
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in approximately May 2009 by Dr. Douglas Stringer.13 In response to the question, “To what extent
is pain of significance in the treatment of this patient?” Dr. Stringer circled the response indicating that
Plaintiff had pain to such an extent as to be distracting to adequate performance of daily activities or
work. Dr. Stringer also circled the response that indicated physical activity (such as walking,
standing, sitting, bending, stooping, moving of extremities, etc.) would greatly increase Plaintiff’s pain
and to such a degree a to cause distraction from tasks or total abandonment of task (tr. 785). Dr.
Stringer also indicated that the side effects of prescribed medication would present some limitations
but not to such a degree as to create serious problems in most instances (id.).
Plaintiff also was treated by general practitioner James S. Sullivan, M.D., apparently some
time prior to December 2004 through February 2010 (see tr. 392; 804). Dr. Sullivan’s records reflect
that he assessed Plaintiff with various ailments, including flu symptoms in January 2005 (tr. 392);
acute asthmatic bronchitis and laryngitis in November 2005, April 2006, and October 2006 (tr.
390–91; 387; 388); and sinus congestion in February 2006 (tr. 390). Dr. Sullivan also noted in
October 2006 that Plaintiff had degenerative disc disease of the lumbar spine with sciatica but there
is no indication he evaluated or treated her for this condition on that date (tr. 387). In April 2007 Dr.
Sullivan treated Plaintiff for chest pain (tr. 386), again noting that she had lumbar disc disease and
also noting that she was obese (id.). When Plaintiff injured her right elbow in a fall in April 2007,
Dr. Sullivan ordered an x-ray and prescribed pain medication (tr. 385). Plaintiff next saw Dr.
Sullivan in January 2008, when he assessed atypical pneumonia (tr. 384). A February 2008 office
note reflects that Plaintiff was doing well at that time but had been hospitalized with bilateral
pneumonia and adult respiratory distress syndrome after her previous office visit; while hospitalized
Plaintiff was diagnosed with diabetes, which would be monitored (id.).
The next office note from Dr. Sullivan is dated November 2008, when he diagnosed Plaintiff
with asthmatic bronchitis and sinusitis (tr. 729). In April 2009 Dr. Sullivan assessed Plaintiff with
chronic asthmatic bronchitis; chronic cigarette abuse; hypotension; and lumbar disc disease with
13
In her memorandum the Commissioner makes no mention of Dr. Douglas Stringer, referring only to Dr.
Merle Stringer. She also appears to conclude that Dr. Stringer completed a CAP on April 14, 2009, and Dr. Sullivan
completed one on May 11, 2009 (see doc. 21 at 9). It seems these dates should be reversed. In any event, the parties
appear to agree that either Dr. Douglas Springer or Dr. Merle Springer prepared a CAP for Plaintiff and did so in April
or May 2009.
Case No.: 5:12cv135/EMT
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degenerative arthritis, chronic sciatica, and disabling pain. Dr. Sullivan noted Plaintiff’s subjective
complaints concerning her back, her description of her back condition and limitations, and her
statements that she had “been disabled since she was in a car accident in 2004 with lumbar disc
disease” and was applying for disability benefits (id.). Dr. Sullivan conducted a general examination,
noting some upper respiratory tract symptoms as well as tenderness of the lumbosacral area and
positive straight leg raising tests bilaterally (id.). Plaintiff’s deep tendon reflexes were decreased,
and Dr. Sullivan noted that Plaintiff was unable to get on or off the table without severe pain and,
although ambulatory, she “seem[ed] to be in pain [in] just a short distance” (id.). Dr. Sullivan
prescribed steroid and antibiotic medications, as well as medications for Plaintiff’s asthma (id.). He
noted that he had completed disability forms and that he recommended Plaintiff be approved “for
chronic disability” (id.).
One of the disability forms completed by Dr. Sullivan on April 14, 2009, is a CAP form, the
same pre-printed form completed by Dr. Springer (tr. 727). Dr. Sullivan indicated that pain “is
present to such an extent as to be distracting to adequate performance of daily activities of work” (id.);
that physical activity greatly increased the degree of pain (id.); and that the side effects of prescribed
medication could be expected to be severe and to limit effectiveness due to distraction, drowsiness,
etc. (id.). Dr. Sullivan also completed a pre-printed Physical Capacities Evaluation (“PCE”) for
Plaintiff (tr. 728). He opined that Plaintiff could only lift five pounds occasionally and one pound
frequently, and she could sit two hours in an eight-hour workday. She could never push/pull with her
arms or legs; climb; perform gross or fine manipulation; bend; stoop; be exposed to environmental
hazards; operate motor vehicles; or work around hazardous machinery (id.). Plaintiff could rarely
reach (id.). She would likely miss more than four days of work per month due to her impairments
(id.). Dr. Sullivan did not complete the section of the form that asked him to explain and describe the
degree and basis for the restrictions he had checked.
Plaintiff next presented to Dr. Sullivan in October 2009 for asthmatic bronchitis, and he
prescribed various medications for this condition as well as an antidepressant (tr. 799). Plaintiff
obtained a flu vaccination in October 2009 (tr. 806). In January 2010 she called in to report that the
pain medication she was taking did not help her back and leg pain very much. Dr. Sullivan apparently
authorized the use of Darvocet only (id.). Dr. Sullivan saw Plaintiff twice in January 2010, once for
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acute gastritis (tr. 805) and once for asthmatic bronchitis and laryngitis (id.). These records reflect
that he prescribed medications for Plaintiff’s gastric and respiratory conditions. Notes from February
2010 reflect that Plaintiff called in to inquire about her medications, including to request a
prescription for more than twenty Darvocet tablets at a time; her prescription was increased to thirty
tablets (id.). Also in February 2010 Plaintiff obtained refills for several medications from Dr.
Sullivan, including a muscle relaxant (tr. 804).
2.
Non-Treating Sources
On August 7, 2008, Jerold A. Derkaz, M.D., examined Plaintiff consultatively after reviewing
the records of Dr. Stringer (tr. 520–27). Dr. Derkaz noted that Plaintiff’s height was 5.42 inches and
her weight was 202.01 pounds, resulting in a body mass index (“BMI”) of 33.57 (tr. 522).14 Based
on his review of the records, Dr. Derkaz’ diagnoses included distant history of respiratory arrest;
severe chronic obstructive pulmonary disease; diabetes mellitus; cervical disc disease; lumbar
degenerative disc disease; bilateral carpal tunnel syndrome; hypertension; and obesity (tr. 523). Dr.
Derkaz’ physical examination of Plaintiff’s back was unremarkable, with the exception of tenderness
to moderate palpation over L4 to S1 with a slight decrease in forward flexion and positive straight
leg raising (id.). Range of motion in the cervical and lumbar spine was normal (tr. 525). Dr. Derkaz
stated that he agreed with the functional restrictions imposed by Dr. Stringer, which he described as
including the inability to lift more than ten pounds; additionally, Dr. Derkaz agreed that Plaintiff should
not squat, climb, bend repetitively, push, pull or engage in overhead work15 (tr. 524). He also opined
that Plaintiff should be limited to sitting, standing, and walking for periods no longer than thirty
minutes (tr. 524).
14
The website of the Centers for Disease Control and Prevention provides a BMI scale which shows that a
BMI of 30.0 and above results in a weight status of “obese.”
www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/index.html
(last visited September 18, 2013).
15
Plaintiff does not point to, nor could the court locate, where in the record such restrictions—imposed at
the express direction of Dr. Stringer—could be found. The ALJ notes, correctly it seems, that when Dr. Derkaz
prepared his assessment in August 2008 the only functional restrictions made by a treating doctor were those set by
Dr. Stringer based on the July 2008 FCE (tr. 20). The only reference to lesser restrictions given by Dr. Stringer that
the court could find in the transcript were those reported by Plaintiff in a May 2008 pain questionnaire (see tr. 196).
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Robert Steele, M.D., a non-examining consultant, completed a RFC assessment of Plaintiff on
August 15, 2008 (tr. 533–40). Dr. Steele concluded that Plaintiff was capable of occasionally lifting
and/or carrying twenty pounds and frequently lifting and/or carrying ten pounds (tr. 534). She could
sit, stand and/or walk about six hours in an eight-hour workday (id.). She had no limitations with
respect to pushing or pulling (id.). Plaintiff could frequently climb ramps and stairs, balance, stoop,
kneel, crouch, and crawl and occasionally climb ladders, ropes, and scaffolds (tr. 535). She had no
manipulative, visual, communicative, or environmental limitations (tr. 536–37).
A second non-examining consultant, Edward Holifield, M.D., prepared an RFC assessment
of Plaintiff on December 3, 2008 (tr. 675–82). Dr. Holifield determined that Plaintiff was capable
of occasionally lifting and/or carrying twenty pounds and frequently lifting and/or carrying ten pounds
(tr. 676). She could sit, stand and/or walk about six hours in an eight-hour workday (id.). Dr.
Holifield imposed no limitation on Plaintiff’s pushing or pulling, but he limited Plaintiff to only
occasionally climbing ramps/stairs, balancing, stooping, kneeling, crouching, and crawling (tr. 677).
Plaintiff should never climb ladders, ropes, or scaffolds (id.). Plaintiff should avoid concentrated
exposure to humidity and fumes, odors, dusts, gases, and poor ventilation (tr. 679).
V.
DISCUSSION
Plaintiff’s grounds for relief, in the order in which the court addresses them, are that the ALJ
erred by (1) failing to consider whether her condition of obesity was a severe impairment; and (2)
failing to properly evaluate the disability opinions of treating physicians Dr. Sullivan and Dr. Stringer.
Plaintiff seeks reversal and remand for an award of benefits or, alternatively, for further proceedings.
The Commissioner responds that the decision denying benefits should be affirmed as there was no
reversible error in the ALJ’s failure to include Plaintiff’s obesity as a severe impairment or in his
assessments of the opinions of Dr. Sullivan and Dr. Stringer.
1.
Obesity as a Severe Impairment
Plaintiff submits that the following evidence documents her struggle with obesity: from Dr.
Derkaz reflecting that at 202 pounds she had a BMI that placed her in the classification of “obese”;
from Dr. Stringer showing that her weight was as high as 217 pounds, that he routinely described her
as “somewhat overweight,” and that he repeatedly advised her to reduce her weight; and from the
hearing when she testified that her weight was 212 pounds. According to Plaintiff, based on this
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evidence the ALJ should have found her obesity to be a severe impairment and should have considered
the limitations this impairment imposes in assessing her RFC.
At step two of the sequential analysis, the ALJ must determine whether a claimant's
impairments are severe. See 20 C.F.R. § 404.1520. This is a “threshold” inquiry that allows only
claims based on the slightest abnormality to be rejected. Brady v. Heckler, 724 F.2d 914, 920 (11th
Cir. 1984). An impairment is not severe only if the abnormality is so slight and its effect so minimal
that it would clearly not be expected to interfere with the individual's ability to work, irrespective of
age, education, or work experience. Id. Nevertheless, the finding of any severe impairment, whether
or not it qualifies as a disability and whether or not it results from a single severe impairment or a
combination of impairments that together qualify as severe, is enough to satisfy the requirement at step
two. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). Furthermore, as with other impairments,
obesity is a severe impairment only if the record evidence demonstrates that it affected Plaintiff’s
ability to perform basic work activities. See McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.
1986).
In this case, although the Commissioner contends that no physician ever diagnosed Plaintiff
with obesity, that is not correct. The examining physician, Dr. Derkaz, diagnosed obesity as did
treating physician Dr. Sullivan, each on one occasion (tr. 386; 523).16 A diagnosis of obesity alone,
however, does not equate with a finding of severity. See, e.g., Wind v. Barnhart, 133 Fed. App’x 684,
690–91 (11th Cir. 2005) (concluding that ALJ correctly determined obesity was non-severe because
it did not cause further reduction in plaintiff’s RFC). Other than speculatively, Plaintiff has not
alleged—and she has not demonstrated—that her obesity affects her ability to perform basic work
activities or that the condition in combination with her back impairment and asthma affect her
functional ability. Additionally, Plaintiff points to nothing in the record which indicates that a
physician imposed functional restrictions based on her weight. Nor has Plaintiff identified anything
in the record that shows that, prior to this appeal, she claimed her weight or obesity affected her
functional abilities, including in her application for benefits, hearing testimony, or arguments presented
to the Appeals Council (see tr. 29–41; 205; 278–81). An ALJ is under no “obligation to investigate
16
Dr. Stringer never used the term “obese” although he frequently described Plaintiff as being “somewhat
overweight” and noted weights varying from 202 pounds in June 2006 (tr. 519) to 217 pounds in September 2007 (tr.
467).
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a claim not presented at the time of the application for benefits and not offered at the hearing as a basis
for disability.” Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996) (citation and internal quotation
marks omitted).
While it would have been preferable for the ALJ in this case to have specifically addressed
Plaintiff’s weight, the court concludes that the ALJ did not err by failing to do so. See McNamara v.
Astrue, 590 F.3d 607, 611 (8th Cir. 2010) (finding no error in ALJ’s failure to specifically discuss
claimant’s obesity where nothing in the medical records indicated that a physician ever placed
physical limitations on the claimant’s ability to perform work-related functions because of her obesity,
and claimant failed to testify at her hearing as to any work-related limitations due to her obesity);
James v. Barnhart, 177 F. App’x 875, 878 n.2 (11th Cir. 2006) (indicating that the ALJ did not err by
failing to find obesity a severe impairment, where plaintiff did not claim that her obesity was a
functional impairment during her hearing testimony and physician who noted plaintiff’s obesity did
not elaborate on the severity of the condition or conclude that it was a functional impairment. “Thus,
there was no medical evidence from which the ALJ could have concluded that [plaintiff’s] obesity
was a severe impairment.”); Ingram v. Astrue, No. 8:07-cv-1591-T-27TBM, 2008 WL 2943287, at
*7 (M.D. Fla. July 30, 2008) (concluding that ALJ did not err in failing to specifically address
plaintiff’s obesity where plaintiff pointed to no evidence, including his own testimony, that suggested
his capacity for sedentary work was further reduced by his obesity). Compare Early v. Astrue, 481
F. Supp. 2d 1233, 1239–40 (N.D. Ala. 2007) (ALJ erred in failing to consider obesity as a factor in
determining claimant’s RFC where her treating physicians repeatedly listed “obesity” in their
treatment notes).
In sum, for the reasons stated above the court concludes that Plaintiff’s claim of error at step
two for the failure to identify obesity as a severe impairment is without merit.
2.
Opinions of Treating Physicians Dr. Sullivan and Dr. Stringer
Plaintiff argues that the ALJ erred by refusing to give any weight to Dr. Sullivan’s records, in
particular his April 14, 2009, CAP form and PCE, which reflect his opinion that Plaintiff is unable
to work. Plaintiff further contends that, although the ALJ stated he gave Dr. Stringer’s opinion great
weight, the ALJ failed to discuss Dr. Stringer’s May 11, 2009, CAP form which indicates that Plaintiff
suffers disabling pain.
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Substantial weight must be given to the opinion, diagnosis, and medical evidence of a treating
physician unless there is good cause to do otherwise. See Lewis v. Callahan, 125 F.3d 1436, 14391441 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991); Sabo v. Chater,
955 F. Supp. 1456, 1462 (M.D. Fla. 1996); 20 C.F.R. § 404.1527(c). “‘[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) (citation
omitted). Thus, an ALJ may discount a treating physician’s opinion or report regarding an inability
to work if it is unsupported by objective medical evidence or is wholly conclusory. But, if an ALJ
elects “to disregard the opinion of a treating physician, the ALJ must clearly articulate [his] reasons”
for doing so. Id. at 1241; see also Edwards, 937 F.2d 580 (finding that the ALJ properly discounted
treating physician’s report where the physician was unsure of the accuracy of his findings and
statements). If a treating physician’s opinion on the nature and severity of a claimant’s impairments
is well supported by medically acceptable clinical and laboratory diagnostic techniques, however,
and it is not inconsistent with the other substantial evidence in the record, the ALJ must give it
controlling weight. 20 C.F.R. § 404.1527(c)(2).
The ALJ gave no weight to Dr. Sullivan’s opinions concerning Plaintiff’s musculoskeletal
impairments, citing two reasons: (1) there was “no significant, objective evidence in the record” to
support the opinions, including “clinical and laboratory abnormalities” and “objective diagnostic
examination”; and (2) Dr. Sullivan’s treatment appeared to relate primarily to Plaintiff’s respiratory
impairments, not her spinal or wrist impairments (tr. 20–21).
In support of Plaintiff’s contention that the record evidence supports her allegations of
disabling pain and, apparently, therefore is supportive of Dr. Sullivan’s opinions, Plaintiff points to
the July 3, 2007, report which shows an abnormal NCV study indicative of bilateral carpal tunnel
syndrome, worse on the right. While the July 3 study does suggest bilateral carpal tunnel syndrome
(tr. 284), Dr. Sullivan’s records contain no mention whatsoever of examinations for or a diagnosis of
carpal tunnel syndrome. Dr. Stringer did make a diagnosis of “probable” carpal tunnel syndrome in
November 2008, but his records from December 2008, February 2009, March 2009, April 2009, and
May 2009 (see tr. 703; 750; 693; 731; 788) do not mention signs or symptoms of carpal tunnel
syndrome, much less make a definitive diagnosis of this condition. Thus, with respect to Plaintiff’s
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carpal tunnel syndrome, the ALJ’s refusal to credit Dr. Sullivan’s opinion is supported by the record.
Similarly, with respect to Plaintiff’s lumbar spine condition, although Plaintiff cites the
February 2006 EMG report (which was obtained more than one year prior to her alleged onset date,
during which time she continued to work) that shows “findings consistent with posterior primary rami
root irritation in the lower lumbar paraspinous region suggestive of radiculopathy,” no mention of such
diagnosis can be found in Dr. Sullivan’s records. Dr. Stringer’s records do discuss this condition;
however, his notes from February 2006 through April 2009 consistently report that Plaintiff’s back
pain was nonradicular (tr. 518; 512; 287; 495; 486; 478; 472; 464; 461; 453; 440; 578; 565; 550; 777;
750; 732). Moreover, an EMG/NCV study of Plaintiff’s left leg conducted in December 2006 was
normal (tr. 495), and an EMG/NCV of both legs obtained in December 2008 was also normal (tr.
701).
Plaintiff also points to the June 2007 x-rays of her thoracic and cervical spine and an October
2008 MRI of the lumbar spine. Neither of these studies, however, provides significant, objective
evidence which support Dr. Sullivan’s disability opinion. The June 2007 x-rays shows only minimal
spondylosis of Plaintiff’s thoracic spine and “very minimal” spondylosis of her cervical spine (tr.
293). And, while the October 2008 MRI shows degenerative disease at levels L3-4 and L4-5, the
disease was considered to be in an “early” stage and any annular tears were “suspect[ed]” and
“subtle” (tr. 778). Furthermore, there was no focal disc protrusion, spinal canal compromise, or
foraminal stenosis (id.). The numerous other objective tests that Plaintiff underwent between 2006
and 2009 also do not support Dr. Sullivan’s disability opinion. These include the normal lumbar xrays obtained in February 2006 (tr. 518); the March 2007 MRI of the lumbar spine that shows only
minimal facet degenerative changes with no nerve root compression (tr. 486); the June 2007 lumbar
spine x-rays that show degeneration but no acute changes (tr. 480); the July 2007 MRI of the cervical
spine that reveals no acute process and only minimal disc bulge at C4-5 (tr. 477); the July 2007 MRI
of the lumbar spine that is normal (id.); and the October 2008 EMG-NCV study that is normal.
Additionally, as the ALJ observed, Dr. Sullivan mostly treated Plaintiff for respiratory
complaints (see tr. 392; 390–91; 387; 388; 390; 729; 384; 805). While Dr. Sullivan noted in October
2006 (tr. 387), and again in April 2007 (tr. 386), that Plaintiff had degenerative disc disease of the
lumbar spine, there is no evidence that he evaluated or treated her for this condition at those times.
Also, it appears that the only time that Dr. Sullivan conducted an examination of Plaintiff’s spine was
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in April 2009, when he noted tenderness of the lumbosacral area, positive straight leg raising tests
bilaterally, decreased deep tendon reflexes, and pain with movement (tr. 729). Although there are
several references to his writing prescriptions for pain and muscle relaxant medication (see tr. 804;
806),17 there is no evidence that Dr. Sullivan conducted any additional examinations related to
Plaintiff’s spinal conditions, conducted any examinations at all related to her carpal tunnel condition,
or requested or reviewed the results of any objective tests on which he might have based his disability
opinion.
For the above reasons, and in light of the record as a whole, the court is satisfied that the
objective medical evidence of Plaintiff’s neck, back, and wrist conditions, including diagnostic tests
and clinical examinations, does not support Dr. Sullivan’s opinions of total disability. The ALJ had
good cause, and gave adequately articulated reasons which are supported by substantial evidence, for
rejecting Dr. Sullivan’s disability opinions concerning Plaintiff’s musculoskeletal complaints. See
Phillips, 357 F.3d at 1241.18
Plaintiff also complains that in rejecting Dr. Sullivan’s opinion the ALJ was required, but
failed, to consider the factors specified in 20 C.F.R. § 404.1527(c). When an ALJ determines that a
treating physician’s opinion is not entitled to controlling weight, the ALJ nevertheless must give it
appropriate weight considering the factors set out in § 404.1527(c)(2–6). These factors include (1)
the length of the treatment relationship and the frequency of examination; (2) the nature and extent of
17
Plaintiff contends that the evidence of the pain and muscle relaxant prescriptions she was given—not just
from Dr. Sullivan but also from Dr. Stringer—and the high number of lumbar, SI joint, and cervical injections she
submitted to by Dr. Stringer provide support for Dr. Sullivan’s opinion of total disability. The court concludes,
however, this evidence is supportive of a finding that these frequently prescribed conservative measures were generally
successful in controlling Plaintiff’s symptoms which, in any event, were most often found to be mild to moderate in
severity.
18
The ALJ’s rejection of Dr. Sullivan’s disability opinion encompasses the recommendation that Plaintiff
should never be exposed to environmental hazards. Despite the vagueness of this restriction, given the evidence of
Dr. Sullivan’s familiarity with and treatment of Plaintiff’s respiratory ailments, the court believes the ALJ should have
discussed this aspect of his disability opinion separately. His failure to do so is not reversible error, however. The
record reflects that Dr. Sullivan’s treatment of Plaintiff’s respiratory problems generally was conservative. Also, for
several years of the period Dr. Sullivan provided care, Plaintiff was able to continue to work, and—notwithstanding
one serious episode in January/February 2008 that required hospitalization from which Plaintiff quickly
recovered—her respiratory condition does not appear to have generally worsened after she alleges she became
disabled in June 2007. Moreover, the ALJ took Plaintiff’s respiratory condition into account, at step two by finding
she has the severe impairment of asthma, and at step four when he relied on the VE’s testimony that an individual of
Plaintiff’s description who could only occasionally be exposed to pulmonary irritants, chemicals, and wetness and
humidity (tr. 57–58), was able to work as a retail store manager.
Case No.: 5:12cv135/EMT
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the treatment relationship; (3) the medical evidence and explanation supporting the opinion; (4)
consistency with the record as a whole; (5) specialization in the pertinent medical issues; and (6) other
factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2–6). Nevertheless,
“[n]ot every factor for weighing opinion evidence will apply in every case.” Social Security Ruling
(“SSR”) 06–03p, 2006 WL 2329939, at *5 (S.S.A. 2006).
Here, the ALJ stated that he considered the opinion evidence “in accordance with 20 CFR
404.1527” as well as various Social Security Rulings, including SSR 06–03p (tr. 18), and the court
therefore accepts that he did. Moreover, there is no per se rule that requires an articulation of each
of the six factors listed in § 404.1527(c)(2)–(6). Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
2007) (stating that plaintiff “cites no law, and we have found none, requiring an ALJ’s decision to
apply expressly each of the six relevant factors in deciding what weight to give a medical opinion.”).
In the instant case, where the ALJ adequately explained his reasoning for rejecting Dr. Sullivan’s
disability opinion, the ALJ did not err by failing to explicitly apply each of the six factors set out in
§ 404.1527(c) (2)-(6). See Tilley v. Comm’r, 394 F. App’x 216, 222 (6th Cir. 2010) (where ALJ
clearly described his reasoning for discounting treating physician’s opinion, it was not error for the
ALJ to fail to address each of the regulatory factors under § 404.1527(c) (2)–(6)).19
For all of the reasons stated above, Plaintiff’s argument for reversal on the ground that the ALJ
improperly discounted Dr. Sullivan’s opinions fails.
Plaintiff also argues that, although the ALJ stated he gave Dr. Stringer’s opinion great weight,
the ALJ failed to discuss Dr. Stringer’s May 11, 2009, CAP form which indicates that Plaintiff suffers
disabling pain. Furthermore, Plaintiff contends, because Dr. Stringer was a treating physician, his
records are entitled to substantial weight and, to the extent the ALJ did not give Dr. Stringer’s opinions
controlling weight, he should have applied the factors in § 404.1527(c)(2)–(6). These arguments also
fail.
19
The court further notes that Dr. Sullivan’s CAP form and PCE—both of which were prepared on pre-printed
forms—contain no written explanation for the reasoning behind the choice of circled or checked-off options. Preprinted forms do not provide persuasive evidence of the validity of the opinions expressed therein. See, e.g.,
Hammersley v. Astrue, No. 5:08cv245–Oc–10GRJ, 2009 WL 3053707, at *6 (M.D. Fla. Sept.18, 2009) (“check-off
forms . . . have limited probative value because they are conclusory and provide little narrative or insight into the
reasons behind the conclusions.”) (citing Spencer ex rel. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985)
(rejecting opinion from a non-examining physician who merely checked boxes on a form without providing any
explanation for his conclusions); Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (noting that “[f]orm reports
in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best.”)).
Case No.: 5:12cv135/EMT
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As an initial matter, because the factors in § 404.1527(c)(2)–(6) only apply where the ALJ has
decided to accord a treating physician’s opinion less than controlling weight, and here the ALJ gave
Dr. Stringer’s opinion great weight, the ALJ did not need to address them. Moreover, as noted above,
even where a treating physician’s opinion is discounted the ALJ need not go through a factor-by-factor
analysis if the ALJ adequately explains his reasoning. Oldham, 509 F.3d at 1258; Tilley, 394 F.
App’x at 222. In this case, the ALJ adequately explained and supported his reasoning for rejecting
Dr. Sullivan’s CAP form, which in significant part is identical to Dr. Stringer’s.
The first two responses given by Dr. Stringer on his CAP form are the same as the responses
given by Dr. Sullivan, which the court has found the ALJ was entitled to reject due, in part, to a lack
of supporting objective diagnostic tests. Moreover, Dr. Stringer’s office notes reflect conservative,
generally successful treatment in the form of injections, medications, and other therapies for what are
most frequently described as mild to moderate physical findings (see, e.g., tr. 512; 511; 495; 489; 486;
309; 479; 478; 472; 464; 461; 460; 440; 578; 577; 566; 565; 551; 550; 547; 544; 769; 701; 751; 692;
732; 789).20 Dr. Stringer’s response to the third statement in the CAP form differs considerably from
Dr. Sullivan’s response. Dr. Stringer indicated that medication side effects could impose “some
limitations” on Plaintiff’s ability to work but not to such a degree as to create serious problems,
whereas Dr. Sullivan opined that side effects for Plaintiff could be expected to be “severe” enough
to limit effectiveness due to distraction, etc. (tr. 727; 785). The more conservative opinion offered
by Dr. Stringer is consistent with his medical records, and it is consistent with a finding that the
individual described is able to perform work activities.
Thus, even if the ALJ had addressed Dr. Stringer’s CAP form, it would not have changed the
ALJ’s conclusion that Plaintiff does not suffer disabling pain. Furthermore, the ALJ’s RFC assessment
and the hypothetical question he posed to the VE adequately accounted for Plaintiff’s limitations and
are supported by substantial evidence.21 The ALJ was therefore entitled at step four to rely on the
20
To be sure, the record also reflects physical findings of “severe” or “marked” pain or other symptoms with
respect to Plaintiff’s cervical and lumbar spine condition (see, e.g., tr. 737; 738; 729; 703; 544; 701; 518; 464; 547;
750). In the context of the numerous findings made by Dr. Stringer over the course of several years, however, the
reports reflecting findings of a greater degree of pain appear with significantly less frequency than the reports showing
“mild” or “moderate” findings.
21
The court notes that those limitations are the same, or greater, than those which Dr. Holifield, one of the
State examiners, found (tr. 675–82). State agency medical consultants are considered experts in the Social Security
disability programs, and the ALJ does not err by assigning their opinions greater weight where, as in this case, the
Case No.: 5:12cv135/EMT
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VE’s testimony that Plaintiff could perform her past relevant work as a retail store manager. Thus,
assuming the ALJ erred by failing to address Dr. Stringer’s CAP form, the court concludes that any
such error was harmless because the ALJ’s ultimate conclusion of “not disabled” would not be
altered. See Caldwell v. Barnhart, 261 F. App’x 188, 190 (11th Cir. 2008) (stating that “[w]hen . .
. an incorrect application of the regulations results in harmless error because the correct application
would not contradict the ALJ’s ultimate findings, the ALJ’s decision will stand.”); East v. Barnhart,
197 F. App’x 899, 901 n.3 (11th Cir. 2006) (indicating that failure to mention psychologist’s report
was harmless where findings in report were consistent with ALJ’s ultimate determination); Pichette
v. Barnhart, 185 F. App’x 855, 856 (11th Cir. 2006) (finding that ALJ’s erroneous statements were
harmless where ALJ applied proper legal standard); Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.
1983) (concluding that misstatements were harmless where ALJ applied correct legal standard despite
the first misstatement, and the second misstatement was irrelevant).
VI.
CONCLUSION
Plaintiff has failed to show that the ALJ applied improper legal standards, erred in making his
findings, or that any other ground for reversal exists. The Commissioner’s decision is supported by
substantial evidence on the record as a whole and should not be disturbed, 42 U.S.C. § 405(g); Lewis,
125 F. 3d at 1439; Foote, 67 F.3d at1560.
Accordingly, it is ORDERED that:
1.
The docket shall reflect that Carolyn W. Colvin has been substituted as the Defendant
in this action.
2.
The decision of the Commissioner is AFFIRMED, and this action is DISMISSED.
The clerk is directed to close the file.
opinions are supported by the evidence. See 20 C.F.R. § 404.1527(f)(2); Jones v. Bowen, 810 F.2d 1001, 1005 (11th
Cir. 1986) (indicating it was not improper for ALJ to consider reports from nonexamining, nontreating physicians
when treating physician’s opinion was properly discounted); see also Ogranaja v. Comm’r of Social Sec., 186 F. App’x
848, 850–51 (11th Cir. 2006) (noting that ALJ may assign greater weight to the opinion of a non-examining physicians
that is contrary to the opinion of a treating physician, provided the ALJ properly discounts the treating physician’s
opinion and the opinion of the non-examining physician is well supported and consistent with the record as a whole).
Case No.: 5:12cv135/EMT
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At Pensacola, Florida this 19th day of September 2013.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
UNITED STATES MAGISTRATE JUDGE
Case No.: 5:12cv135/EMT
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