TATUM v. BERRYHILL

Filing 18

MEMORANDUM ORDER. The decision of the Commissioner is REVERSED on the limited bases set forth above, and the matter is REMANDED for explanations of the ALJsdecisions. The clerk shall enter judgment for the plaintiff and close the file.(See order). Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on 12/7/2018. (alb)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
MELANIE ANNE TATUM,
Plaintiff,
v.

Case No. 5:17cv262-CJK

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
______________________________/
MEMORANDUM ORDER
This matter is before the court pursuant to 42 U.S.C. § 405(g) for review of a
final determination of the Commissioner of Social Security (“Commissioner”)
denying Melanie Anne Tatum’s applications for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34, and
Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. §§
1381-83. The parties have consented to Magistrate Judge jurisdiction pursuant to 28
U.S.C. § 636(c) and FEDERAL RULE OF CIVIL PROCEDURE 73 for all proceedings in
the case, including entry of final judgment. Upon review of the record before the
court, I conclude certain findings of fact and determinations of the Commissioner are

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not supported by substantial evidence. The decision of the Commissioner, therefore,
will be reversed and the matter will be remanded for further proceedings consistent
with this order.
ISSUES ON REVIEW
Ms. Tatum, who will be referred to as claimant, plaintiff, or by name, raises 2
issues on appeal. She argues the ALJ erred in evaluating (1) the opinion evidence of
record; and (2) her credibility.
PROCEDURAL HISTORY
Ms. Tatum filed applications for DIB and SSI on October 1, 2014, alleging
disability beginning May 16, 2010. T. 219-32.1 She later amended the alleged onset
date to December 8, 2014. T. 251-52. Her claims were denied initially and on
reconsideration. T. 82-131, 146-56, 175-82. Ms. Tatum appeared for a hearing
before an Administrative Law Judge (“ALJ”) on October 12, 2016. T. 42-81. On
November 16, 2016, the ALJ issued a decision denying Ms. Tatum’s applications for
benefits. T. 7-31. Ms. Tatum petitioned the Appeals Council for review of the ALJ’s
decision. T. 1. The Appeals Council denied the request. T. 1-6. The ALJ’s decision

1

The administrative record, as filed by the Commissioner, consists of 10 volumes (docs. 14-1
through 14-10) and has 734 consecutively numbered pages. References to the record will be by “T.,”
for transcript, followed by the page number.
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thus became the final determination of the Commissioner.
FINDINGS OF THE ALJ
In her written decision, the ALJ made a number of findings relevant to the
issues raised in this appeal:
•

“The claimant meets the insured status requirements of the Social
Security Act through December 31, 2015.” T. 12.

•

“The claimant has not engaged in substantial gainful activity since
December 8, 2014, the amended alleged onset date (20 CFR 404.1571
et seq., and 416.971 et seq.).” T. 12.

•

“The claimant has the following severe impairments: lumbar scoliosis;
degenerative disc disease; and major depressive disorder, recurrent,
moderate (20 CFR 404.1520(c) and 416.920(c)).” T. 12.

•

“The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).”
T. 14.

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•

“[C]laimant has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) and 416.967(b) except that she can
frequently balance and climb ramps and stairs. She can occasionally
stoop, kneel, crouch, crawl and climb ladders, ropes or scaffolds. She
is limited to performing simple, routine tasks.” T. 18.

•

“The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).” T. 24.

•

“Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).” T. 25.

•

“The claimant has not been under a disability, as defined in the Social
Security Act, from December 8, 2014, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).” T. 26.
STANDARD OF REVIEW

A federal court reviews the “Commissioner’s decision to determine if it is
supported by substantial evidence and based upon proper legal standards.” Lewis v.
Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936
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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.”). Substantial evidence is “‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is something
‘more than a mere scintilla, but less than a preponderance.’” Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987)). 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).
When reviewing a Social Security disability case, 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) (quoting
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also Hunter v.
Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (“In determining
whether substantial evidence supports a decision, we give great deference to the
ALJ’s factfindings.”) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d
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1079, 1082 (11th Cir. 1996)). A reviewing court also may not look “only to those
parts of the record which support the ALJ[,]” but instead “must view the entire record
and take account of evidence in the record which detracts from the evidence relied on
by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). Review is
deferential to a point, but the reviewing court conducts what has been referred to as
“an independent review of the record.” Flynn v. Heckler, 768 F.2d 1273 (11th Cir.
1985).2
The Social Security Act defines 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 plaintiff not only is 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).
To be eligible for disability benefits, a claimant must prove she became disabled prior
2

The Eleventh Circuit not only speaks of an independent review of the administrative record,
but it also reminds us that it conducts a de novo review of the district court’s decision on whether
substantial evidence supports the ALJ’s decision. See Ingram v. Comm’r of Soc. Sec. Admin., 496
F.3d 1253, 1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
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to the expiration of her date last insured. See 42 U.S.C. §§ 416(i)(3), 423(a) and (c);
20 C.F.R. §§ 404.101, 404.130, 404.131; Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005).
Pursuant to 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the Commissioner
analyzes a disability claim in 5 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 12 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 performing past
relevant work, she is not disabled.3

3
Claimant bears the burden of establishing a severe impairment that keeps her from
performing past work. Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir. 1986).

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5. Even if the claimant’s impairments prevent her from performing past
relevant work, if other work exists in significant numbers in the national economy
that accommodates the claimant’s residual functional capacity and vocational factors,
she is not disabled.
Step 5 (or step 4 in cases in which the ALJ decides a claimant can perform past
work) is generally where the rubber meets the road. At that point, the ALJ formulates
the all-important residual functional capacity. The ALJ establishes RFC, utilizing the
impairments identified at step 2, by interpretation of (1) the medical evidence; and (2)
the claimant’s subjective complaints (generally complaints of pain). Residual
functional capacity is then used by the ALJ to make the ultimate vocational
determination required by step 5.4 “[R]esidual functional capacity is the most [a
claimant] can still do despite [claimant’s] limitations.5 20 C.F.R. §§ 404.1545(a)(1),
4

“Before we go from step three to step four, we assess your residual functional capacity. (See
paragraph (e) of this section.) We use this residual functional capacity assessment at both step four
and step five when we evaluate your claim at these steps.” 20. C.F.R. §§ 404.1520(a)(4),
416.920(a)(4).
5

In addition to this rather terse definition of RFC, the Regulations describe how the
Commissioner makes the assessment:
(3) Evidence we use to assess your residual functional capacity. We will assess your
residual functional capacity based on all of the relevant medical and other evidence.
In general, you are responsible for providing the evidence we will use to make a
finding about your residual functional capacity. (See § 416.912(c).) However,
before we make a determination that you are not disabled, we are responsible for
developing your complete medical history, including arranging for a consultative
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416.945(a)(1). Often, both the medical evidence and the accuracy of a claimant’s
subjective complaints are subject to a degree of conflict and that conflict leads, as in
this case, to the points raised on judicial review by the disappointed claimant.
FACT BACKGROUND6
Ms. Tatum was 52 years old on the alleged onset date and 54 years old on the
date of the ALJ’s decision. T. 26, 219, 252. She has at least a high school education
and past work experience as a bookkeeper, family associate at child protective
services, and clerk/stocker/cleaner at a convenient store. T. 274-88, 304, 443. She
alleged disability due to pancreatitis, back problems, shortness of breath, a right knee
issue, a right hip/pelvic area issue, a neck issue, a right shoulder issue, and
examination(s) if necessary, and making every reasonable effort to help you get
medical reports from your own medical sources. (See §§ 416.912(d) through (f).)
We will consider any statements about what you can still do that have been provided
by medical sources, whether or not they are based on formal medical examinations.
(See § 416.913.) We will also consider descriptions and observations of your
limitations from your impairment(s), including limitations that result from your
symptoms, such as pain, provided by you, your family, neighbors, friends or other
persons. (See paragraph (e) of this section and § 416.929.)[.]
20 C.F.R. § 416.945(a)(3).
6

The plaintiff included no factual recitation in her memorandum, and the government’s
factual recitation is scant. Given the issues raised, the undersigned discerns no utility in setting forth
a detailed factual/medical history and, instead, will address the pertinent facts in the Analysis section
below.

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depression. T. 303. The ALJ found plaintiff had severe impairments of lumbar
scoliosis, degenerative disc disease, and major depressive disorder. T. 24. The ALJ
limited plaintiff to light work with postural restrictions to accommodate for lumbar
scoliosis and degenerative disc disease and simple, routine tasks in order to
accommodate for pain distraction and major depressive disorder. T. 24.
ANALYSIS
1.

Opinion Evidence

Plaintiff claims the ALJ erred in evaluating the opinion evidence of record
when determining RFC. Specifically, plaintiff alleges the ALJ erred with regard to
the weight given the opinions of 3 consultative examiners – Dr. Murali Krishna
Maddipati and Dr. Efren Baltazar, both of whom assessed plaintiff at the
Commissioner’s request, and Dr. Kamel Elzawahry, who examined plaintiff at her
counsel’s request. As recognized in the regulations, an ALJ “may . . . ask for medical
evidence from expert medical sources” and “will consider this evidence . . . as
appropriate.” 20 C.F.R. § 404.1513a(b)(2). When considering medical opinions, the
ALJ looks to (1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship; (3) medical

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evidence supporting the opinion; (4) consistency with the record as a whole; (5)
specialization in the medical impairments at issue; and (6) other factors which tend
to support or contradict the opinion. 20 C.F.R. § 404.1527(c); 416.927(c)(3)-(6).
Although an ALJ is required to give medical opinions of treating sources substantial
or considerable weight absent good cause, see Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1179 (11th Cir. 2011); see also 20 C.F.R. § 404.927(c)(2), the opinion of
a non-treating doctor, such as a one-time examiner, is not entitled to deference or
special consideration. See Crawford, 363 F.3d at 1160; McSwain v. Bowen, 814 F.2d
617, 619 (11th Cir. 1987). Hence, an ALJ need not demonstrate good cause for the
weight assigned to such opinions. See Denomme v. Comm’r, Soc. Sec. Admin., 518
F. App’x 875, 877-78 (11th Cir. 2013); cf. 20 C.F.R. § 416.927(c)(2) (requiring ALJs
to provide good reasons for the weight assigned treating doctors’ opinions).
In addition, where a physician has merely made conclusory statements, the ALJ
may afford them such weight as is supported by clinical or laboratory findings and
other consistent evidence of a claimant’s impairments. See Wheeler v. Heckler, 784
F.2d 1073, 1075 (11th Cir. 1986); see also Schnorr v. Bowen, 816 F.2d 578, 582
(11th Cir. 1987). In determining whether an ALJ gave proper weight to a physician’s

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opinion, the court “will not second guess the ALJ about the weight the treating
physician’s opinion deserves so long as [s]he articulates a specific justification for it.”
Hunter v. Comm’r of Soc. Sec., 808 F.3d 818, 823 (11th Cir. 2015) (citation omitted).
An ALJ may choose to accept some conclusions – or restrictions – within an
opinion while rejecting others. If such a choice is made, in addition to explaining the
overall weight given to a particular medical opinion, the ALJ must explain “‘with at
least some measure of clarity the grounds for [her] decision’” to adopt particular
aspects of a medical opinion. Winschel v. Comm’r Soc. Sec., 631 F.3d 1176, 1179
(11th Cir. 2011) (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984)).
Failure to explain the rationale for crediting only certain aspects of an opinion will
result in a reviewing court “declin[ing] to affirm ‘simply because some rationale
might have supported the ALJ’s conclusion.’” Id.
A.

Dr. Maddipati

Dr. Maddipati examined plaintiff at the Commissioner’s request. He found
plaintiff suffered from chronic back, neck, and bilateral shoulder pain and could sit
for up to 30 minutes at a time before having to change position and stand for up to 15
minutes. T. 347. He noted plaintiff’s “range of motion [was] normal in all joints,

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except lower back and neck, where [s]he has some restricted flexion and extension
due to pain.” T. 347. He found claimant “[a]ble to perform repetitive activities
related to upper extremities with no difficulty,” but to have “moderate difficulty to
perform repetitive movements . . . involving lower back and neck, including lifting,
bending, and carrying.” T. 347. Dr. Maddipati found normal strength and tone in all
extremities. T. 347. He also found “no impairment in cognitive functions related to
work like concentration, understanding, and memory” and good thought process. T.
347. He advised Ms. Tatum to take anti-inflammatory medications as needed for pain
and opined she had “mild to moderate functional limitations for work requiring
moderate to severe physical effort, involving duties requiring repeated movements
of lower back and knees.” T. 347.
The ALJ gave Dr. Maddipati’s opinion great weight, finding it “consistent with
the overall evidence of record and . . . supported by personal clinical observations and
examinations.” T. 23. The ALJ also noted Dr. Maddipati specialized in internal
medicine. T. 23. Plaintiff now says that in giving great weight to Dr. Maddipati’s
opinion, the ALJ failed to acknowledge, much less incorporate, the sitting and
standing limitations Dr. Maddipati imposed. Plaintiff’s position is well-taken.

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Although the ALJ gave great weight to Dr. Maddipati’s opinion and incorporated
portions thereof in the RFC, she did not explain the failure to include the sitting and
standing restrictions Dr. Maddipati imposed.7 The ALJ thus erred, and the matter
must be remanded for an explanation of the ALJ’s decision in that regard.
B.

Dr. Baltazar

The ALJ also gave great weight to the opinion of Dr. Baltazar, a nonexamining physician, finding it “supported with a relevant explanation and . . .
consistent with the record as a whole.” T. 23. Upon review of the record, Dr.
Baltazar found plaintiff could occasionally lift and/or carry 20 pounds; frequently lift
and/or carry 10 pounds; stand and/or walk and sit about 6 hours in an 8-hour
workday; push and/or pull without limitation; frequently climb ramps and stairs;
occasionally climb ladders, ropes, and scaffolds; frequently balance; and occasionally
stoop, kneel, crouch, and crawl. T. 112-13. Claimant argues the ALJ erred in giving
great weight to Dr. Baltazar’s opinion because Dr. Baltazar failed to address Dr.
Maddipati’s opinion, including the sitting and standing limitations Dr. Maddipati
imposed, and indicated there was no medical opinion evidence in the record despite
being provided a copy of Dr. Maddipati’s opinion. The ALJ’s decision to give great
7

The ALJ imposed far less restrictive sitting and standing limitations. T. 24.

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weight to Dr. Baltazar’s opinion is unsupported by substantial evidence in the record,
because Dr. Baltazar’s opinion appears to have been based on an incomplete review
of the record. On remand, therefore, the ALJ also shall address the decision to give
great weight to Dr. Baltazar’s opinion, where Dr. Baltazar did not address Dr.
Maddipati’s opinion and, instead, indicated there was no opinion evidence of record.
C.

Dr. Elzawahry

Dr. Elzawahry, who examined plaintiff at her counsel’s request, completed a
Medical Source Statement in which he indicated Ms. Tatum could occasionally lift
less than 10 pounds, rarely lift 10 pounds, never lift 20 pounds, occasionally twist,
rarely stoop, and never crouch or squat. T. 463. He said she could sit for up to 30
minutes at a time, stand for up to 10 minutes at a time, and sit/stand/walk for less than
2 hours in an 8-hour workday. T. 462. He also said plaintiff would be required to
take unscheduled breaks often and be “off task” 25 percent or more of the workday
due to symptoms interfering with attention and concentration. T. 463-64. He found
plaintiff incapable of even low stress work and opined she would be absent from
work more than 4 days per month due to impairments. T. 464.

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The ALJ afforded only partial weight to Dr. Elzawahry’s opinion, declaring,
“ it [was] based on a single examination and appears to rely heavily on the claimant’s
self-reports, and makes very specific findings about off-task behaviors and absences
that are unsupported elsewhere in the record.” T. 23. “Additionally,” the ALJ
explained, “the preprinted non-standard form, ostensibly supplied to Dr. Elzawahry
by the claimant’s attorney, only contains check-box options” for “never,” “rarely,”
“occasionally,” and “frequently,” with no options for “no restriction” or
“continuously.” T. 23. In the ALJ’s view, “use of this form calls into question the
accuracy of the assessment and renders it less persuasive.” T. 23.
Plaintiff argues “[t]he ALJ’s first stated reason for giving little weight to this
opinion is inconsistent with the ALJ’s earlier finding that the December 2014
consultative report of Dr. Maddipati was entitled to ‘great weight’ despite also being
based upon a single examination . . . .” Doc. 16 at p. 8. The ALJ’s decision to give
only partial weight to Dr. Elzawahry’s opinion because Dr. Elzawahry examined
plaintiff only once – while giving great weight to the opinion of Dr. Maddipati, who
also examined plaintiff only once – is not erroneous, as the ALJ weighted the
opinions based on other factors as well. In particular, Dr. Elzawahry appeared to rely

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heavily on Ms. Tatum’s self-reports and made “very specific findings about off-task
behaviors and absences that are unsupported elsewhere in the record.” T. 23.
According to Ms. Tatum, “[t]he ALJ’s next reason for giving only ‘partial
weight’ to Dr. Elzawahry’s opinion is that his findings, regarding the percentage of
time Ms. Tatum would likely be off-task’ during a typical workday and the number
of days she would likely be absent from work in a typical month, are ‘unsupported
elsewhere in the record.’” Doc. 16 at p. 9. Ms. Tatum contends “Dr. Elzawahry’s
opinion in this respect is supported by his examination of Ms. Tatum and review of
her objective records which supports his findings of severe ongoing neck and back
pain . . . .” Doc. 16 at p. 9. Ms. Tatum posits that even if that were not the case, “the
remainder of Dr. Elzawahry’s findings regarding functional limitations are not
addressed by this rationale and would support a far more limited . . . [RFC]
assessment than the assessment made by the ALJ in this case, which on their own
would eliminate the ability to perform any substantial gainful activity.” Doc. 16 at
p. 9.
Substantial evidence supports the ALJ’s decision to afford little weight to Dr.
Elzawahry’s opinion. Although the record contains evidence of impairments,
substantial evidence in the record supports the ALJ’s conclusion any such

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impairments were not of the severity Dr. Elzawahry opined. As the ALJ observed,
at the December 2014 consultative examination with Dr. Maddipati, claimant was
alert, fully oriented, and in no acute distress. T. 21, 346. Her chest and lung exam
revealed no wheezes or crackles, and she had “quiet, even and easy respiratory effort
with no use of accessory muscles.” T. 21, 346. Cardiovascular auscultation revealed
regular heart rate and rhythm, normal heart sounds, and no murmurs. T. 21, 346. She
had some restricted range of motion in the lower back and neck related to flexion and
extension, but range of motion otherwise was normal in all joints. T. 21, 346-47. She
was able to perform repetitive activities related to the upper extremities with no
difficulty, but had moderate difficulty performing repetitive movements involving the
lower back and neck. T. 347. She had normal strength and tone in all extremities.
T. 21, 347. She had no impairment in cognitive function related to work-like
concentration, understanding, and memory. T. 21, 347. She had good thought
process. T. 21, 347. She was taking Aleve and Tylenol for pain and not seeing a
doctor. T. 21, 347.
At the August 2016 examination with Dr. Elzawahry, Ms. Tatum was pleasant,
cooperative, and in no acute distress. T. 22, 467. She had a normal mood and affect.
T. 22, 467. She followed simple and complex commands. T. 22, 467-68. She had

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normal immediate recall and short- and long-term memory. T. 22, 468. Her ability
to calculate and abstract, attention span, and judgment were normal. T. 22, 468. She
demonstrated normal naming, repetition, and spelling. T. 22, 468. Although Dr.
Elzawahry noted neurological deficits, including decreased memory, difficulty with
concentration, headaches, incoordination, numbness, a spinning sensation, tingling,
unsteadiness, and weakness in the extremities, as well as pain in the neck, pelvis,
back, joints, muscles, and abdomen, his opinion appears to be based in substantial
part on plaintiff’s subjective complaints, and the restrictions he imposed are
unsupported by objective medical evidence in the record.
Turning to the ALJ’s final reason for giving little weight to Dr. Elzawahry’s
opinion – the fact it was expressed on a pre-printed form – the law concerning
conclusory statements is particularly applied where a doctor expresses opinions on
a preprinted or “check-off” form.

Such opinion evidence will not bind the

Commissioner. Indeed, courts have found such preprinted forms do not provide
persuasive evidence of the validity of the opinions expressed therein.

See

Hammersley v. Astrue, No. 5:08-cv-245-Oc-10GRJ, 2009 WL 3053707, at *6 (M.D.
Fla. Sept. 18, 2009) (“Check-off forms . . . have limited probative value because they

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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); Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993))). Although such
forms are admissible, “they are entitled to little weight and do not constitute
‘substantial evidence’ on the record as a whole.” O’Leary v. Schweiker, 710 F. 2d
1334, 1341 (8th Cir. 1983). These pronouncements certainly suggest that where a
party wishes to rely upon those opinions expressed on a check-off form, that party
would be well-served to scour the record for actual, supportive medical evidence,
consistent with the short-hand conclusions. The absence of such medical evidence
may weaken or obliterate the probative value of the form.
As set forth above, the ALJ specified certain limitations of the pre-printed
Medical Source Statement that she found called into question the accuracy of Dr.
Elzawahry’s assessment and rendered it less persuasive. Ms. Tatum argues the
limitations specified by the ALJ are of no consequence to this case. Even if that is
true, the ALJ’s decision to discount Dr. Elzawhary’s opinion on that basis is harmless
error as such forms are generally entitled to little weight and, in any event, the ALJ’s
decision to give only partial weight to Dr. Elzawhary’s opinion is supported by other
substantial evidence in the record.

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2.

Credibility Determination

Ms. Tatum also challenges the ALJ’s credibility determination. A claimant
who attempts to prove disability based on subjective complaints must provide
evidence of an underlying medical condition and either objective medical evidence
confirming the severity of her alleged symptoms or evidence establishing her medical
condition could reasonably be expected to give rise to the alleged symptoms. See 20
C.F.R. §§ 404.1529(a), (b), 416.929(a), (b); SSR 96-7p; Wilson, 284 F.3d at 1225-26.
If the objective medical evidence does not confirm the severity of the claimant’s
alleged symptoms, but the claimant establishes she has an impairment that could
reasonably be expected to produce the symptoms alleged, the ALJ must evaluate the
intensity and persistence of the claimant’s alleged symptoms and their effect on the
claimant’s ability to work. See 20 C.F.R. §§ 404.1529(c), (d), 416.929(c), (d); SSR
96-7p; Wilson, 284 F.3d at 1225-26. Notably, in determining whether substantial
evidence supports an ALJ’s credibility determination, “[t]he question is not . . .
whether [the] ALJ could have reasonably credited [claimant’s] testimony, but whether
the ALJ was clearly wrong to discredit it.” Werner v. Comm’r of Soc. Sec., 421 F.
App’x 935, 939 (11th Cir. 2011).

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The ALJ found Ms. Tatum’s medically determinable impairments could
reasonably be expected to produce the symptoms alleged but Ms. Tatum’s “statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record . . . .”
T. 22. Plaintiff argues that, pursuant to SSR 16-3p, before an ALJ finds a claimant’s
statements inconsistent with the evidence of record based on lack of treatment, the
ALJ should consider reasons the claimant may not have sought treatment, including
finances and access to free or lost-cost medical care. According to Ms. Tatum, “the
ALJ was required to consider [her] explanation regarding . . . lack of health insurance
and income in evaluating the consistency of her testimony with the evidence of
record.” Doc. 16 at p. 13. Plaintiff also complains the ALJ “did not ‘articulate
explicit and adequate reasons’ for her evaluation of Ms. Tatum’s testimony or explain
which of her symptoms the ALJ found inconsistent with the evidence of record and
why.” Doc. 16 at p. 14.
The ALJ’s reasons for discounting plaintiff’s credibility are supported by
substantial evidence in the record. Contrary to plaintiff’s assertion, the ALJ expressly
considered plaintiff’s statements about inability to afford treatment and reviewed
records predating the alleged onset date for that reason. T. 19. As the ALJ noted,

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however, despite Ms. Tatum’s alleged symptoms and claimed inability to afford
treatment, in April 2013, she was still smoking cigarettes and marijuana. T. 20, 394.
In August 2013, she was smoking 1.5 packs of cigarettes per day. T. 20, 423. In
December 2013, she was smoking cigarettes every day. T. 20, 721. In March 2014,
she went to the emergency room with a cough, congestion, and shortness of breath.
T. 21, 384. She was still smoking cigarettes every day and using marijuana. T. 21,
385. She continued smoking daily as of January 2015. T. 21, 335. If Ms. Tatum’s
breathing issues or inability to afford treatment were as severe as alleged, one could
reasonably expect she would have stopped smoking, due to the same economic
constraints she now says limited her ability to obtain medical care.
Also contrary to plaintiff’s contention, the ALJ set forth portions of plaintiff’s
testimony she found lacking in credibility. Specifically, the ALJ recounted plaintiff’s
testimony that she “experiences chronic back and knee pain, as well as headaches that
occur every other day and are worsening.” T. 22. The ALJ also noted Ms. Tatum
“claims to lie down for most of the day and says that she is only productive (up and
moving around) for about 3 hours each day” and testified she “still receives no
treatment for any of her complaints because of limited income and lack of health
insurance coverage.” T. 22.

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The ALJ set forth medical evidence she found inconsistent with plaintiff’s
testimony in that regard. For example, in April 2013, Ms. Tatum went to the
emergency department complaining of back and flank pain.

T. 20, 393.

A

musculoskeletal examination was negative for lumbar, midline, and paraspinous
spasm. T. 20, 395. There was no limited range of motion, costovertebral angle
tenderness, or tenderness to palpation. T. 20, 395. Ms. Tatum had a negative straight
leg raise test and benign neurological examination. T. 20, 395. Lumbar X-rays were
normal, except for scoliosis. T. 20, 395. Ms. Tatum was treated for back pain and
released in good/stable condition. T. 20, 396.
As set forth above, in December 2014, plaintiff was alert, fully oriented,
well-groomed, well-developed, and in no acute distress. T. 21, 346. Her chest and
lung, cardiovascular, and abdominal exams revealed no abnormalities. T. 21, 346.
There was no edema. T. 346. Although there was restricted range of motion in the
lower back and neck related to pain in flexion and extension, range of motion
otherwise was normal in all joints. T. 21, 346-47. Ms. Tatum had normal strength
and tone in the extremities. T. 21, 347. There was no noted impairment in cognitive
function. T. 21, 347. Dr. Maddipati noted chronic back, neck, and bilateral shoulder
pain, but lumbar x-rays showed only mild lumbar scoliosis. T. 21, 347, 349. Ms.

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Tatum was taking Aleve and Tylenol for pain and seeking no medical treatment. T.
21, 347. Dr. Maddipati found only “mild to moderate functional limitations for work
requiring moderate to severe physical effort, involving duties requiring repeated
movements of lower back and knees.” T. 347.
Although Dr. Elzawahry noted certain pain and abnormalities in August 2016,
Ms. Tatum was pleasant, cooperative, well-developed, well-nourished, and in no
acute distress. T. 22, 467. She had normal muscle bulk, contour, and tone, and her
strength was 5/5 throughout. T. 22, 468. She also had normal coordination,
sensation, and reflexes. T. 22, 468. And her mental status was normal. T. 22, 46768. Hence, as the ALJ found, although the medical findings may provide an objective
basis for some of plaintiff’s impairments and other symptoms, they do not reflect
symptoms of the severity alleged, and the ALJ articulated explicit and adequate
reasons for her decision in that regard.
CONCLUSION
In sum, the ALJ erred in 2 respects: (1) failing to explain the reason for giving
great weight to Dr. Maddipati’s opinion but not incorporating in the RFC the sitting
and standing limitations Dr. Maddipati imposed; and (2) giving great weight to Dr.
Baltazar’s opinion despite the fact Dr. Baltazar did not address Dr. Maddipati’s

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opinion and, instead, indicated there was no opinion evidence of record. Substantial
evidence otherwise supports the ALJ’s decision, including the ALJ’s credibility
determination.8 See 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.”).
ACCORDINGLY it is ORDERED:
1.

The decision of the Commissioner is REVERSED on the limited bases

set forth above, and the matter is REMANDED for explanations of the ALJ’s
decisions to (1) give great weight to Dr. Maddipati’s opinion but not incorporate in
the RFC the sitting and standing limitations Dr. Maddipati imposed; and (2) give
great weight to Dr. Baltazar’s opinion despite the fact Dr. Baltazar did not address Dr.
Maddipati’s opinion and, instead, indicated there was no opinion evidence of record.
2.

The clerk shall enter judgment for the plaintiff and close the file.

8

The court notes that, to the extent it reviewed the legal principles upon which the ALJ’s
decision is based, it conducted a de novo review. See Gilson v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005).
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DONE and ORDERED this 7th day of December, 2018.

/s/

Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE

Case No. 5:17cv262-CJK