Kramerman v. Commissioner of Social Security Administration
Filing
24
ORDER denying 20 Motion for Summary Judgment; granting 21 Motion for Summary Judgment. The Clerk of the Court is directed to close this case and enter final judgment in favor of the Commissioner. Signed by Magistrate Judge Jonathan Goodman on 3/4/2015. (lpr) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 13‐20333‐CIV‐GOODMAN
JEAN ANN KRAMERMAN,
Plaintiff,
vs.
CAROLYN W. COLVIN
Acting Commissioner of Social Security
Administration,1
Defendant.
______________________________________/
ORDER ON CROSS‐MOTIONS FOR SUMMARY JUDGMENT
This Cause is before the Undersigned on cross‐motions for summary judgment
by Plaintiff Jean Ann Kramerman (“Kramerman”) [ECF No. 20], and Defendant Carolyn
W. Colvin, Acting Commissioner of the Social Security Administration (the
“Commissioner”) [ECF No. 21].
An Administrative Law Judge (the “ALJ”) determined that Kramerman was not
disabled. Kramerman seeks judicial review of the ALJ’s decision, arguing that (1) the
Carolyn W. Colvin became the Acting Commissioner of the Social Security
Administration on February 14, 2013. Under Federal Rule of Civil Procedure 25(d),
Carolyn W. Colvin should be substituted for Michael J. Astrue as the defendant in this
suit. Section 405(g) of the Social Security Act specifically allows Social Security appeals
cases to continue when there is a change in Commissioners. 42 U.S.C. § 405(g).
1
1
ALJ committed reversible error in failing to properly consider Kramerman’s medically
determinable impairment of vulvodynia and in purportedly requiring medical findings
that do not exist with this type of impairment; (2) the ALJ committed reversible error in
failing to set forth the requisite good cause for rejecting the opinion of Dr. Perry, a
treating physician; and (3) the ALJ committed reversible error in failing to properly
assess Kramerman’s subjective complaints and credibility. [ECF No. 20, p. 1].
For the reasons outlined below, the Undersigned finds that the ALJ applied the
proper legal standards in making his decision and that substantial evidence supports
the ALJ’s determination that Kramerman is not disabled. Accordingly, the Undersigned
affirms the Commissioner’s decision, denies Kramerman’s summary judgment motion
[ECF No. 20], grants the Commissioner’s summary judgment motion [ECF No. 21], and
the Clerk of the Court is directed to enter final judgment in favor of the Commissioner.
2
I.
BACKGROUND
A. Procedural History
Kramerman filed an application for Supplemental Security Income disability
benefits on August 12, 2010, alleging disability beginning August 29, 2007 due to
vulvodynia vestibulitis2 and chronic pain. (R. 136‐39, 144, 166, 170, 183‐85).3
Her application was denied initially by the state agency and then, upon
reconsideration, denied again. (R. 32‐35). Kramerman then requested a hearing before
an ALJ to review her claim. The ALJ held that hearing on May 31, 2012, and issued his
written decision on June 21, 2012. (R. 16‐34). The ALJ found that Kramerman’s
vulvodynia is a severe impairment, but that she has the residual functional capacity
(“RFC”) to perform light exertional work, which allows her to perform her past relevant
work (“PRW”) as a medical office coordinator. (R. 17‐27).
The ALJ also found Kramerman’s allegations that the condition caused disabling
symptoms “not credible to the extent they are inconsistent with” the RFC
determination. In reaching this conclusion, the ALJ noted that her disability claim was
Vulvodynia is chronic pain or discomfort of the vulva. It is usually described as a
burning, stinging, irritation, or rawness. Vulvar vestibulitis is vulvodynia that occurs in
the vestibular region of the vulva, or the entry point to the vagina. “Vulvodynia:
Condition Information,” National Institution of Child Health and Human Development
(“NICHD”),
http://www.nichd.nih.gov/health/topics/vulvodynia/conditioninfo/Pages/default.aspx
(last visited February 27, 2015).
3
References to “R. _” are to pages of the transcript of the administrative record.
2
3
based on her subjective complaints, but medical records did not reveal the “type of
significant abnormalities one would expect if the claimant were in fact disabled,” and
because Kramerman “has an idiopathic condition.” (R. 22, 24). The ALJ gave little
weight to the opinions of Dr. Perry, one of Kramerman’s treating physicians, and
afforded “great weight” to the November 2010 RFC assessment of a non‐examining
State agency physician. (R. 25, 26).
Kramerman requested review of the ALJ’s decision in June 2012. (R. 115, 205‐43).
The Appeals Council denied that request via a Notice issued on December 14, 2012,
making it the final decision of the Commissioner. (R. 1‐5).
Kramerman then filed this action seeking judicial review of the Commissioner’s
decision. [ECF No. 1]. The Commissioner answered. [ECF No. 9]. Kramerman filed her
summary judgment motion and the Commissioner filed a competing summary
judgment motion, which also doubled as a response to Kramerman’s summary
judgment motion. [ECF Nos. 20; 21; 22]. Kramerman then responded to the
Commissioner’s competing summary judgment motion. [ECF No. 23]. This matter is
now ripe for review.
B. Factual Background
From 1996 to 2007, Kramerman worked as a medical office coordinator. (R. 145).
She dates her vulvar and periurethral pain to 2006. (R. 249, 257). Kramerman also has a
history of recurrent herpes and urinary tract infections. (R. 247, 380, 383). Kramerman
4
sought treatment from OB/GYN Dr. Gregory A. Skipitis in 2007, and then from his
partner, OB/GYN Dr. Thomas Perry, in 2008. (R. 380‐87, 465‐66).
On March 24, 2008, Dr. Perry reported that Plaintiff had “extreme vestibulitis
pain” and an “atrophic looking vaginal area.” (R. 380). Plaintiff reported that she did
not have pain all the time with intercourse, but she sometimes had pain around the
urethra and around the Skene glands. (R. 380‐81). Dr. Perry diagnosed Kramerman
with, among other things, vestibulitis and chronic vulvitis and prescribed Timovate gel
and Celexa, an antidepressant. (R. 381). Dr. Perry also noted that all of Kramerman’s
previous doctors “have given her a diagnosis of vulva dinea.” (R. 380).
On March 28, 2008, Dr. Perry noted that Plaintiff’s vulva was nontender, but
there was some “periurethra tenderness to point touch” and some areas on her urethra
that were “somewhat tender.” (R. 382). Dr. Perry stated that Plaintiff’s vestibule was
“exquisitely tender and that just touching it with a Q‐tip made her jump off the table.”
(Id.). Plaintiff followed‐up with Dr. Perry through December 2008 for vaginal pain,
urinary tract infections, and herpes management. (R. 373‐79). On June 17, 2008, Dr.
Perry opined that Plaintiff had disabling vulvodynia and that multiple medications and
modalities had failed her, except for topical creams, ice therapy, and sitz baths in cool
water. (R. 375).
On August 8, 2008, at Dr. Perry’s request, Deborah D. Kamali, M.D., evaluated
Kramerman. (R. 257). Dr. Kamali reported that Plaintiff’s “vulvar exam [was] notable
5
for normal structures; that is, she [did] not have any loss of vulvar architecture.” (R.
258). Kramerman had normal sensation on the Q‐tip examination administered by Dr.
Kamali and did not have marked vestibular gland tenderness. (R. 258). She also did not
have pelvic floor muscle spasm or pain in her pelvic floor muscles. (Id.). Dr. Kamali’s
assessment was that Plaintiff had vulvodynia, but not of the vestibulodynia type. (Id.).
She recommended an estrogen vaginal ring and frequent application of bland
emollients. (R. 258).
Between December 2008 and June 2009, Jerome M. Weiss, M.D., treated Plaintiff
for vulvodynia by administering a series of pudendal nerve blocks. (R. 262‐83). Dr.
Weiss noted that Plaintiff had some days of improvement following the nerve blocks,
but that the pain relief was only temporary. (R. 262, 264, 266, 268, 270, 272). He also
noted that Kramerman’s pain level “fluctuates,” with both good and painful days. (R.
266).
Kramerman engaged in pelvic floor therapy with Brande Moffatt, M.P.T.,
between January and May 2009, on referral from Dr. Weiss. (R. 310‐14, 358‐59). In
February 2009, Kramerman reported to Ms. Moffatt that her symptoms had decreased
with 50% improvement during the daytime and approximately 30% improvement at
night, with occasional flare‐ups of “10+ burning vaginal pain.” (R. 310). At that time,
Kramerman described her episodes as intermittent, not chronic. (Id.). In her last report
in May 2009, Ms. Moffatt reported that Kramerman had consistent improvement up
6
until the week of April 15, 2009, but that Plaintiff reported a large increase in her
symptoms around that time. (R. 358). Ms. Moffatt noted that over the previous month,
Plaintiff had significantly reduced her physical therapy treatments, and that she had
started a new medication, Premarin, during that month as well. (R. 358‐59).
Dr. Perry continued to see Kramerman intermittently between January 2009 and
May 2009. (R. 370‐72). In January 2009, he noted Kramerman was doing well on Effexor
and Valtrex and that she had some positive results with the nerve block injections. (R.
372). In April 2009, Plaintiff reported that her vulvodynia treatment was “working
now” and that she did not have to take Vicodin often. (R. 371). In contrast to the
information provided by Ms. Moffet, in May 2009, Dr. Perry stated that Plaintiff’s
vulvodynia was “stable” with Ms. Moffatt and Dr. Weiss. (R. 370).
In February 2010, Stephanie A. Prendergast, M.P.T., a physical therapist,
reported that Plaintiff had de‐estrogenized vulvar tissue and poor connective tissue
integrity in her peri‐urethral region. However, Ms. Prenergast did not believe
Kramerman had vulvodynia or pudendal neuralgia. (R. 353). Ms. Prendergast opined
that Kramerman would benefit from regulation of her hormone levels. (R. 353). Ms.
Prendergast also noted that while Dr. Perry diagnosed Kramerman with vulvodynia,
Drs. Kamali and Joanna Badger did not think that Kramerman had vulvodynia. (R. 352).
7
Between February 2010 and October 2010, Ricki Pollycove, M.D., treated
Kramerman for her vulvodynia as well. (R. 285‐87, 322‐23). Dr. Pollycove prescribed
several medications for treatment, including estrogen. (R. 316‐18).
On April 1, 2010, an ultrasound of Kramerman’s pelvis revealed an adnexal
mass/cyst on her left ovary. (R. 293). On April 15, 2010, Dr. Pollycove referred
Kramerman to Andrew J. Brill, M.D., a gynecological surgeon, for evaluation. (R. 303‐
04). Dr. Brill noted that Kramerman had no significant chronic pelvic pain or pelvic
pressure. (R. 303). Dr. Brill reported that Kramerman’s external genitalia were normal.
(R. 304). Her vaginal vault was also clear and relatively well supported. (R. 304). Her
rectovaginal exam confirmed a cystic left adnexal mass. (Id.).
On April 16, 2010, Kramerman returned to Dr. Perry complaining of vaginal pain
(R. 368). She had vaginitis, which was treated, and she then reported she was feeling
better. (Id.).
On June 8, 2010, Dr. Brill performed a laparoscopic excision of endometriosis and
excision of Kramerman’s left ovarian cyst. (R. 411). On June 23, 2010, Dr. Perry reported
that Kramerman was doing well with “min problems,” following that surgery. (R. 366).
Dr. Perry also noted that Kramerman’s vulvodynia was still a problem and that she was
receiving treatment from Dr. Pollycove. (R. 366). Dr. Perry’s notes show that
Kramerman was going to move to Florida around this time too. (R. 366).
8
On November 19, 2010, David L. Hicks, M.D., a State agency medical consultant,
reviewed the record and determined that Kramerman had chronic vulvodynia and
chronic pain. (R. 418, 425). However, Dr. Hicks opined that, notwithstanding these
impairments, Kramerman was capable of performing a full range of light work (R. 419‐
22, 425).
On November 29, 2010, Dr. Perry wrote a letter to Kramerman’s counsel in
support of her disability application. (R. 427). Dr. Perry stated that Kramerman had
extreme idiopathic vulvodynia which made her unable to work, unable to perform
routine functions around the house, and caused her extreme pain. (Id.). Dr. Perry noted
that Kramerman took multiple medications and therapies, but the only treatment that
worked for her was ice therapy performed three to four times a day. (Id.). Dr. Perry
recommended that Kramerman be granted complete disability. (Id.). According to Dr.
Perry’s letter, Kramerman had been his patient since 2002. (R. 427). However, in a 2012
sworn statement Dr. Perry provided to Kramerman’s counsel in support of her
disability application, he stated that he first saw Kramerman in 2008. (R. 466).
After Kramerman moved to Florida, she initially went to Amanda M. Richards‐
Bullock, M.D., for a June 11, 2011 gynecological examination. (R. 433). On July 21, 2011,
Dr. Richards‐Bullock reported that Plaintiff had no erythema, tenderness, or bleeding
around her vagina. (R. 435). Her vulva appeared normal. (R. 436). Her periurethra and
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hymen were erythematous and swollen and she had a positive Q‐tip test on the vaginal
examination. (R. 436). Her examination revealed no other issues. (R. 435‐36).
Dr. Richards‐Bullock prescribed an estrogen/progesterone cream for treatment
and renewed Kramerman’s request for Vicodin. (R. 436). On September 8, 2011,
Kramerman complained of panic attacks and urine leakage to Dr. Richards‐Bullock. (R.
443). However, no abnormalities were found on the urodynamic test for urinary
incontinence. (R. 443).
On January 17, 2012, Kramerman changed physicians to Peter M. Dayton, M.D.,
another OB/GYN. (R. 458). Kramerman’s physical examination was mostly normal. (R.
460‐61). Kramerman described vulvar burning of the vestibule, which Dr. Dayton noted
appeared normal. (R. 461). Kramerman’s vagina was normal without lesions or masses.
(R. 461). Dr. Dayton diagnosed Kramerman with, among other things, vulvodynia, and
referred her to a vulvodynia clinic for further evaluation and treatment. (R. 461). Dr.
Dayton prescribed several medications, including progesterone, Valtrex, and Vicodin.
(R. 462).
On March 7, 2012, Kramerman returned to Dr. Dayton complaining of vaginal
irritation and pain. (R. 453). Dr. Dayton noted that Kramerman had moderate to severe
atrophy at that time and that there was a small ulcer in her urethral area. (R. 454). Her
vagina was otherwise normal without lesions or masses. (R. 454). Dr. Dayton added
estrogen to Kramerman’s medication regimen. (R. 454). On April 3, 2012, Kramerman
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returned with continued complaints of vulvar pain, but she described it as episodic
occurring in the early morning. (R. 448). According to Dr. Dayton’s notes, Kramerman’s
intravaginal symptoms improved with the addition of estrogen replacement therapy.
(R. 448). On examination, Kramerman’s external genitalia appeared normal with no
ulcerative lesions or discolorations. (R. 449). She had some tenderness over her urethral
areas. (R. 449). Her vaginal vault, otherwise, showed improvement. (R. 449). Dr. Dayton
added Lyrica and Trazodone to Kramerman’s regimen. (R. 449).
In a follow‐up examination with Dr. Dayton on May 1, 2012, Kramerman
reported that her condition had improved and that her outbreaks of vulvodynia were
less often. (R. 445). She stated that she had had a couple of outbreaks over the last
several weeks. (Id.). Dr. Dayton opined that Kramerman had shown a greater than 50%
improvement with Lyrica, even though he had predicted there would only be a 20%
improvement a month previously. (R. 445, 449). He recommended an increase in the
dosage of Lyrica and instructed Kramerman to follow‐up in six months. (R. 446).
As referenced, on May 21, 2012, Dr. Perry provided a telephonic sworn statement
to Kramerman’s counsel. (R. 463‐73). Dr. Perry stated that he last saw Kramerman on
February 1, 2011, more than a year earlier. (R. 466).
Dr. Perry testified that his diagnosis of Kramerman’s medical condition was
severe vulvodynia and that it was a dysfunctional disease. (R. 467). Dr. Perry opined
that Kramerman would not be able to perform sedentary work and that she would need
11
to spend a good part of her day in and out of the bathroom putting ice on her vulva. (R.
471). He acknowledged that Kramerman’s vulvodynia was on a continuum, and that on
some days she would be more functional (R. 471).
II.
APPLICABLE LEGAL PRINCIPLES
A. Standard of Review
In reviewing the Commissioner’s final decision, the Court’s role is limited to
determining whether there is substantial evidence in the record to support the decision
and whether the Commissioner correctly applied the appropriate legal standards. 42
U.S.C. § 405(g); McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Wiggins v.
Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
The Commissioner’s decision must be affirmed if it is supported by substantial
evidence in the record. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)
(internal citations omitted). Substantial evidence is more than a scintilla, but less than a
preponderance; “it means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” McRoberts, 841 F.2d at 1080 (internal citations and
quotations omitted). In determining whether substantial evidence exists, the Court must
scrutinize the record in its entirety, taking into account both favorable and unfavorable
evidence. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citation omitted).
The Court, however, must not “decide the facts anew, reweigh the evidence, or
substitute [its] judgment for that of the [Commissioner].” Bloodsworth, 703 F.2d at 1239
12
(internal citations omitted). Thus, “[e]ven if [the court] find[s] that the evidence
preponderates against the [Commissioner’s] decision, [the court] must affirm if the
decision is supported by substantial evidence.” Id.
Unlike the deferential standard of review applied to the Commissioner’s findings
of fact, “[n]o presumption of validity attaches to the [Commissioner’s] determination of
the proper legal standards to be applied in evaluating claims.” Bridges v. Bowen, 815
F.2d 622, 624 (11th Cir. 1987) (citing Wiggins, 679 F.2d at 1389). The Commissioner’s
“[f]ailure to apply the correct legal standards or to provide the reviewing court with the
sufficient basis to determine that the correct legal principles have been followed is
grounds for reversal.” Wiggins, 679 F.2d at 1389.
B. The Sequential Evaluation
The Commissioner must undertake a five‐step sequential analysis to determine
whether a plaintiff is disabled. The Commissioner must first determine whether the
plaintiff is currently engaged in substantial gainful activity. If the plaintiff is engaged in
substantial gainful activity, then he or she is not disabled. 20 C.F.R. §§ 404.1520(b),
416.920(b). In the second step, the Commissioner must determine whether the plaintiff
suffers from a severe impairment or combination of impairments ‐‐ at least one such
impairment is necessary in order for the disability analysis to continue. 20 C.F.R. §§
404.1520(c), 416.920(c). At step three, the Commissioner determines whether the
plaintiff’s impairments meet or equal a listed impairment under 20 C.F.R. §§ 404, App.
13
1, 404.1520(d), 416.920(d).4 If so, then the plaintiff is considered disabled; if not, then the
analysis proceeds to step four. At step four, the Commissioner must determine whether
the plaintiff’s impairments prevent the plaintiff from performing his or her past
relevant work. 20 C.F.R. §§ 404.1520(e)‐(f), 416.920(e)‐(f). If the answer is no, then the
plaintiff is not disabled. If the answer is yes, then a prima facie case of disability is
established. The burden then shifts to the Commissioner to show, at step five, that there
is other work that the plaintiff can perform. Walker v. Bowen, 826 F.2d 996, 1002 (11th
Cir. 1987); 20 C.F.R. § 404.1560(c). The Commissioner must then determine whether the
plaintiff is actually capable of performing other work within the economy. 20 C.F.R. §§
404.1520(g), 416.920(g). The following flow chart illustrates the five‐step sequential
analysis.
“Certain impairments are so severe either when considered alone or in
conjunction with other impairments that, if such impairments are proved, the
regulations require a finding of disability without further inquiry into the [plaintiff’s]
ability to work.” Gibson v. Heckler, 762 F.2d 1516, 1518 (11th Cir. 1985).
4
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Step 1
Is the plaintiff currently working?
Not Disabled.
Yes
No
Step 2
Does the plaintiff have a severe impairment or
combination of impairments?
No
Not Disabled.
Yes
Step 3
Does the plaintiff’s impairment
meet or equal those in the listing of
impairments?
Disabled.
Yes
No
Step 4
Does the plaintiff’s impairment
prevent past relevant work?
No
Not Disabled.
Yes
Disabled.
Yes
Step 5
Does the plaintiff’s impairment prevent other work?
No
Not Disabled.
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III.
ANALYSIS
The Undersigned addresses each of Kramerman’s three arguments in turn below.
A. The ALJ did not fail to properly consider Kramerman’s medically
determinable impairment of Vulvodynia.
Kramerman first argues that the ALJ committed reversible error in failing to
properly consider her medically determinable impairment of vulvodynia and in
requiring medical findings that do not exist with this type of impairment.
As Kramerman acknowledges, the ALJ did find that her vulvodynia is a severe
impairment. [ECF No. 20, p. 10 (citing R. 22)]. Then, at Step 3 of the 5‐step sequential
analysis, the ALJ determined that Kramerman’s impairment or combination of
impairments did not meet or medically equal the severity of a listed impairment.
Following that determination, the ALJ made an RFC determination and decided
Karmerman’s impairments do not prevent her from completing her PRW as a medical
office coordinator. (R. 22‐27).
Kramerman takes issue with the ALJ’s statements in his written opinion that
medical records fail to reveal the abnormalities one would expect if she was disabled,
that she suffers from a condition with no known cause, and that her disability claim is
based on her subjective complaints. [ECF No. 20, p. 10]. Following these statements, the
ALJ made a standard credibility determination:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairment could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
16
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.5
(R. 24).
According to Kramerman, the “ALJ committed reversible error in requiring
laboratory findings as the ‘regulations do not require that a disability impairment be
proven by laboratory findings.’” [ECF No. 20, p. 11 (quoting Ortega v. Chater. 933 F.
Supp. 1071, 1076 (S.D. Fla. 1996)].
However, that is not what occurred here. Instead, the ALJ substantively analyzed
information provided by Drs. Robert Hansen, Andrew Brill, Peter Dayton, and Thomas
Perry in crafting his RFC determination. The ALJ specifically found that the medical
records “fail to reveal the type of significant clinical and laboratory abnormalities one
would expect if the claimant were in fact disabled.” (R. 24). But that was not the end of
his analysis.
This is formulaic language, and it appears in many of the disability
determinations this Court has reviewed. But, it is also followed by extensive analysis for
the ALJ’s credibility determination, as described more fully in section C below. Courts
in this Circuit have remanded disability determination cases only when the boilerplate
language on a claimant’s credibility is not followed by actual analysis. See, e.g., Howell v.
Astrue, 8:10‐CV‐2175‐T‐26TGW, 2011 WL 4002557, at *3 (M.D. Fla. Aug. 16, 2011) report
and recommendation adopted, 8:10‐CV‐2175‐T‐26TGW, 2011 WL 3878365 (M.D. Fla.
Sept. 2, 2011) (“This type of boilerplate language is regularly seen in Social Security
cases. However, it is usually followed by a more detailed explanation. When it is not, I
have reversed, or recommended reversal, due to an inadequate credibility
determination.”); Peart v. Commr. of Soc. Sec., 6:13‐CV‐287‐ORL‐GJK, 2014 WL 1207362,
at *3 (M.D. Fla. Mar. 24, 2014) (remanding because boilerplate language was not
followed by actual analysis). In Kramerman’s case, the ALJ did provide the requisite
analysis.
5
17
The ALJ then noted that Kramerman’s disability claim is “based on her subjective
complaints.” (Id.). The ALJ did not find that this somehow precluded a disability
finding. Instead, he analyzed Kramerman’s testimony and found that it was
inconsistent with her disability claim. In short, the ALJ did consider Kramerman’s
subjective complaints and testimony, but because that information was inconsistent
with her alleged disability (and because the ALJ did not find Kramerman’s testimony
credible),6 he ultimately rejected her disability claim. The ALJ did not reject
Kramerman’s disability claim because he thought it had to be substantiated by
laboratory findings. He simply noted that those findings ‐‐ and Kramerman’s own
testimony ‐‐ were inconsistent with her disability claim. This is not reversible error.
Kramerman’s first argument lacks merit. The ALJ did not deny her disability
claim based on an erroneous requirement that she support the claim with laboratory
findings. The ALJ properly evaluated the medical evidence, including Kramerman’s
own testimony, and determined that, while her vulvodynia was a severe impairment,
Kramerman maintained the RFC to perform her PRW as a medical office coordinator.
6
Credibility determinations about a claimant’s subjective testimony are reserved
for the ALJ. Lanier v. Commʹr of Soc. Sec., 252 F. Appʹx 311, 314 (11th Cir. 2007)
(unpublished) (citing Johns v. Bowen, 821 F.2d 551, 557 (11th Cir. 1987)). Where an ALJ
decides not to credit a claimant’s testimony, he or she “must articulate explicit and
adequate reasons for doing so.” Id. (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th
Cir. 1991)). The ALJ’s credibility determination is discussed below at section C.
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B. The ALJ did not commit reversible error in failing to set forth the requisite
good cause for rejecting the opinion of Thomas Perry, MD., Kramerman’s
treating Ob‐Gyn.
The ALJ accorded “little weight” to the opinion of treating physician Dr. Thomas
J. Perry, M.D. (R. 25).
The regulations governing social security disability determinations allow an ALJ
to consider many factors in evaluating medical opinions, including the examining
relationship, the treatment relationship, whether the opinion is amply supported, and
whether the opinion is consistent with the record and the doctorʹs specialization. 20
C.F.R. §§ 404.1527(d), 416.927(d). “Generally, the opinions of examining physicians are
given more weight than non‐examining physicians[, and] the opinions of treating
physicians are given more weight than non‐treating physicians.” Kelly v. Commʹr of Soc.
Sec., 401 F. Appʹx 403, 407 (11th Cir. 2010) (citing §§ 404.1527(d)(1)–(2), 416.927(d)(1)–
(2)). “A doctorʹs opinion on a dispositive issue reserved for the Commissioner, such as
whether the claimant is ‘disabled’ or ‘unable to work,’ is not considered a medical
opinion and is not given any special significance, even if offered by a treating source,
but will be taken into consideration.” Id. (citing §§ 404.1527(e), 416.927(e)); see also Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (“we are concerned here with the
doctorsʹ evaluations of Lewisʹs condition and the medical consequences thereof, not
their opinions of the legal consequences of his condition”).
19
Opinions of treating physicians must be given “substantial or considerable
weight” unless good cause is shown to the contrary. Lewis, 125 F.3d at 1440. In the
Eleventh Circuit, good cause “exists when the: (1) treating physicianʹs opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3) [the]
treating physicianʹs opinion was conclusory or inconsistent with the doctorʹs own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240‐41 (11th Cir. 2004) (internal
citations omitted). “When electing to disregard the opinion of a treating physician, the
ALJ must clearly articulate [her] reasons.” Id. (internal citations omitted).
The record includes Dr. Perry’s treatment notes, as well as two medical opinions.
The medical opinions include a letter dated November 29, 2010, opining that
Kramerman was “completely disabled,” and a sworn statement dated May 12, 2012,
opining that severe limitations from Kramerman’s vulvodynia prevented her from
performing even sedentary work. (R. 427, 463‐72). This latter statement was given by
telephone, to Kramerman’s attorney, more than a year after Dr. Perry had last seen
Kramerman. (R. 466).
Kramerman argues that the ALJ selectively cited from the evidence and that his
conclusion that Dr. Perry’s opinion is supported by neither his own treatment notes nor
those of other treating physicians is incorrect. [ECF No. 20, pp. 14‐15]. However, a
review of the record and the ALJ’s opinion shows that the ALJ’s decision to accord little
weight to Dr. Perry’s opinion is supported by substantial evidence.
20
At the outset, it should be highlighted again that whether Kramerman is disabled
is a legal conclusion reserved for the SSA, not a treating physician, and so the ALJ did
not need to afford any particular deference to Dr. Perry’s legal conclusion that
Kramerman was “completely disabled.” Lewis, 125 F.3d at 1440.
This issue aside, the ALJ’s analysis shows that, in his view, Dr. Perry’s treatment
notes did not support Dr. Perry’s opinion that Kramerman had extreme limitations,
including an inability to do even sedentary work due to the pain caused by her
vulvodynia. (R. 25‐26). The ALJ noted that Kramerman’s condition, and the
concomitant pain associated with it, showed intermittent exacerbations of symptoms as
well as periods of marked improvement.
For instance, a January 2009 treatment note from Dr. Perry indicated that her
medications were “doing well,” and that Kramerman was “undergoing injections at this
time with some results.” (R. 372). A treatment note from April 16, 2010 noted that
Kramerman “had a positive Gardnerella vaginitis and was treated and symptoms are
gone. She is feeling better.” (R. 368). A December 15, 2008 treatment note indicated that
“worsening problems [with] vulvodynia [and] current meds not working,” but a May
26, 2009 treatment note stated “vulvodynia stable.” (R. 370. 374). An April 9, 2008
treatment note indicated a vulvodynia medication is “working well.” (R. 379). And an
April 17, 2009 treatment note stated “vulvodynia treatment working now,” and “finally
some relief.” (R. 371).
21
Again, good cause exists to give little or no weight to the opinion of a treating
physician when the “treating physicianʹs opinion was . . . inconsistent with the doctorʹs
own medical records.” Phillips, 357 F.3d at 1240‐41. The ALJ’s decision to give little
weight to Dr. Perry’s opinion was in part based on the opinion’s inconsistency with the
doctor’s own medical records. It may be that Dr. Perry’s treatment notes would also
evidence his opinion that Kramerman had extreme limitations, but it is not for the
Undersigned to reweigh the evidence, and the ALJ’s decision on this point is supported
by ample evidence in the record. See Bloodsworth, 703 F.2d at 1239 (the Court must not
“decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner]”).
In addition, the ALJ grounded his decision to afford little weight to the opinion
of Dr. Perry on the inconsistent opinions of other treating physicians, particularly that
of Dr. Dayton. Dr. Dayton treated Kramerman after Dr. Perry (after Kramerman had
moved to Florida). Kramerman told Dr. Dayton on May 14, 2012 that she had improved,
and he noted that her “outbreaks of vuvlodynia [are] less often.” (R. 445). Dr. Dayton’s
treatment notes also support the ALJ’s assertion that “progress notes indicated that the
claimant had intermittent exacerbations, but was also intermittently symptom free with
treatment.” (R. 25).
For instance, Dr. Dayton noted in March 2012 that Kramerman had moderate to
severe vulvar atrophy and a small urethral ulcer, but by April 2012, just a month later,
22
Dr. Dayton saw “no ulcerative lesions,” and the “[v]aginal vault show[ed] improved
estrogen with good rugae.” (R. 449). Finally, while Dr. Dayton had told Kramerman in
April 2012 that she should expect only a 20% improvement in her vulvodynia using a
new medication (Lyrica), by May 2012 (a month later) Kramerman reported a 50%
improvement. (R. 446, 449). This constitutes sufficient evidence to support the ALJ’s
decision to give little weight to Dr. Perry’s opinion.
Kramerman also argues that the opinion of State agency medical consultants
cannot, as a matter of law, constitute the substantial evidence necessary to rebut the
opinions of a treating physician such as Dr. Perry. [ECF No. 20, pp. 15‐16]. This is an
accurate statement of the law. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988) (internal
citation omitted). However, this is not what occurred in Kramerman’s case. The ALJ’s
decision to give Dr. Perry’s opinion little weight was not based solely on his decision to
give the opinion of the State agency medical consultants more weight. Instead, it was
based on a review of the entire record, including a thorough analysis of Dr. Perry’s own
treatment notes, as well as those of other treating physicians, as described above.
The ALJ’s RFC determination was not based exclusively on the opinion of the
State agency medical consultants either. The ALJ’s RFC determination is bolstered by
three‐and‐a‐half single‐spaced pages of analysis, including analysis of Kramerman’s
testimony, notes from a variety of treating physicians, and evaluation of the record as a
whole. (R. 23‐26).
23
C. The ALJ did not fail to properly assess Kramerman’s subjective complaints
and credibility.
In her third and final argument, Kramerman argues that the ALJ “misstated the
record in several key respects such that his credibility finding cannot be supported by
substantial evidence.” [ECF No. 20, p. 16]. Essentially, Kramerman believes that
accepting her “improperly rejected testimony as true, it is apparent that she cannot
perform sustained work activities and is disabled.” [Id.].
Credibility determinations about a claimant’s subjective testimony are reserved
for the ALJ. Lanier v. Commʹr of Soc. Sec., 252 F. Appʹx 311, 314 (11th Cir. 2007) (citing
Johns v. Bowen, 821 F.2d 551, 557 (11th Cir. 1987)). Where an ALJ decides not to credit a
claimant’s testimony, he or she “must articulate explicit and adequate reasons for doing
so.” Id. (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). The 11th Circuit
has “’established a three part “pain standard” that applies when a claimant attempts to
establish disability through his or her own testimony of pain or other subjective
symptoms.’” Id. (quoting Holt, 921 F.2d 1221 at 1223).
The standard requires:
1) Evidence of an underlying medical condition, and either
2) Objective medical evidence that confirms the severity of the alleged pain arising
from the condition, or
3) That the objectively determined medical condition is of such a severity that it can
be reasonably expected to give rise to the alleged pain.
24
Id.
The ALJ may consider a claimant’s daily activities when evaluating her
complaints of pain. Id. (citing 20 C.F.R. § 404.1529(c)(3)). Finally, a claimant’s subjective
complaints alone cannot establish disability. 20 C.F.R. § 416.929(a).
Kramerman takes specific issue with three of the ALJ’s findings. Each is
discussed in turn below.
First, Kramerman takes issue with the ALJ’s finding that her medical records
document that she had “intermittent exacerbations, but was also intermittently
symptom free with treatment.” [ECF No. 20, p. 17]. Kramerman argues the ALJ’s
findings are not supported by substantial evidence, but in fact they are. The ALJ relied
in part on certain treatment notes from Dr. Dayton, a treating physician, to reach this
conclusion. [Id.]. Each of the statements that the ALJ attributes to Dr. Dayton is in the
record. (R. 445‐ 48). These statements show that in May 2012, Kramerman’s symptoms
had improved, and, in the words of Dr. Dayton, “[h]er outbreaks of vulvodynia [are]
less often.” (R. 445). And according to Dr. Dayton, as of May 1, 2012, Kramerman had
only had a few outbreaks in recent weeks, evidencing the ALJ’s assertion that at times
she is symptom free. (R. 445). Dr. Dayton’s treatment notes do support the ALJ’s
findings.
Kramerman believes that Dr. Dayton’s treatment notes, at best, evidence
occasional improvement in her condition, and cannot support a finding that she could
25
sustain work activities. But, that is her appraisal of the record. The ALJ’s appraisal ‐‐
that Kramerman’s condition did not preclude her from performing her PRW as a
medical office coordinator ‐‐ is supported by the record. The ALJ carefully pointed to
(and cited) the record evidence supporting his RFC determination. It is not this Court’s
role to “decide the facts anew, reweigh the evidence, or substitute [its] judgment for
that of the [Commissioner].” Bloodsworth, 703 F.2d at 1239 (internal citations omitted).
Even if the record evidence preponderates for a disability finding, that is not enough for
Kramerman to meet her burden in this proceeding. Substantial evidence is only enough
“relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” McRoberts, 841 F.2d at 1080 (internal citations and quotations omitted). The
ALJ clearly met that standard here.
Kramerman also takes issue with the ALJ’s finding that her daily activities are
“not limited to the extent one would expect, given the complaints of disabling
symptoms and limitations” such that “her functional limitations are self‐imposed.”
[ECF No. 20, p. 18]. These findings were part of the ALJ’s credibility determination. The
ALJ noted that Kramerman “reported that she prepares meals, does laundry, washes
dishes, makes the bed, drives, and shops.” (R. 25). The ALJ thought this information
was inconsistent with Kramerman’s testimony indicating “marked restriction of even
simple daily activities.” (Id.). Ultimately, the ALJ found that, “[c]onsidering the
claimant’s subjective allegations against the objective medical evidence and other
26
relevant information bearing on the issue of credibility, the undersigned must conclude
that her functional limitations are self‐imposed. Therefore the claimant’s subjective
allegations must be rejected as lacking credibility.” (Id.).
Kramerman contends that the ALJ, in reaching this conclusion, mischaracterized
the evidence. Her meal preparation, as indicated on her Function Report, is limited to
making sandwiches or using the microwave. (R. 167). Her household chores are very
few. (Id.). Kramerman stated on her Function Report that she only drives once or twice
a month, for one‐half hour to an hour. (R. 168). Kramerman’s hearing testimony
essentially corroborates the information found in her Function Report. (R. 40‐45).
The problem with Kramerman’s argument is that the ALJ’s statements are quite
clearly supported by substantial evidence. Kramerman does, to at least some extent,
cook meals, do laundry, wash dishes, make her bed, and even shop and drive. In the
ALJ’s view, the fact Kramerman did these activities undermined her testimony of
marked restriction of even simple daily activities, and, in turn, her credibility.
It is important to note that the ALJ was not stating that Kramerman was not
disabled because she could perform these activities.7 Instead, the ALJ was saying that
As Kramerman notes, there is no requirement that a claimant’s daily activities be
objectively verified. [ECF No. 20, p. 19 (quoting Wolfe v. Comm’r of Soc. Sec., Case No.
6:11‐cv‐1316‐ORL‐DAB, 2012 WL 3264912, at *6, n.2 (M.D. Fla. Aug. 10, 2012))]. But, the
ALJ was not imposing such a requirement. He was simply basing his credibility
determination, in part, on his finding that Kramerman’s testimony and record evidence
about her daily activities was fundamentally at odds with her testimony about the
limiting effects of her alleged disability.
7
27
the fact Kramerman could perform these activities was at odds with her own statements
about the limiting effect of her severe impairments. In the ALJ’s view, this undermined
Kramerman’s credibility.
Kramerman also takes issue with the ALJ’s finding that she made inconsistent
statements to the SSA about her marital status, and that this undermined her credibility.
[ECF No. 20, p. 17]. However, the record clearly evidences this finding. Kramerman’s
August 2010 Disability Report, prepared by the SSA, was based on a contemporaneous
telephone interview. According to the Report, Kramerman “called back the next day
and let us know that she had been lying about her marriage. She got married in 02/2010
and is still married. Told interviewer that she was engaged to be married in Sept 2010.”
(R. 141).
At the Hearing, the ALJ asked Kramerman about this, and she (and her husband)
stated that while she was legally married in February 2010, she did not have a wedding
ceremony until September 2010. (R. 47). Kramerman testified that she had no memory
of calling the interviewer back the next day. (R. 50). The ALJ found that these facts
generated additional evidence to call Kramerman’s credibility into question. (R. 25). In
Kramerman’s view, she explained to the ALJ the source of confusion (the different dates
for her marriage and wedding ceremony) and “[a]ny inconsistency . . . is not a proper
basis, in and of itself, to reject her testimony regarding the severity of her symptoms.”
[ECF No. 20, p. 20].
28
There are two problems with this argument. First, this was not the only basis for
the ALJ’s credibility determination. As described above, the ALJ also based his
credibility determination on his view that Kramerman’s stated limits were at odds with
the medical evidence and her testimony about her own activities. The ALJ felt her
functional limits were self‐imposed, and that this undermined Kramerman’s credibility
‐‐ the ALJ had support for this determination.
Second, Kramerman did make inconsistent statements about her marriage status.
There is no dispute that Kramerman initially stated that she was not married in her
disability application, submitted on August 12, 2010. (R. 136‐38). There is also no
dispute that Kramerman was actually married at that time. [ECF No. 20, p. 20]. The ALJ
was entitled to draw his own conclusions about Kramerman’s inconsistent statements
about her marriage.
The Undersigned will not disturb the ALJ’s credibility determination. The
standard in this area is clear. In the Eleventh Circuit, a “clearly articulated credibility
finding with substantial supporting evidence in the record will not be disturbed by a
reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (citing MacGregor v.
Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986)). In this case, the ALJ’s credibility
determination is supported by substantial evidence.
29
IV.
CONCLUSION
For the reasons stated above, the Kramerman’s summary judgment motion [ECF
No. 20] is denied, the Commissioner’s summary judgment motion [ECF No. 21] is
granted, and the Clerk of the Court is directed to enter final judgment in favor of the
Commissioner.
DONE AND ORDERED, in Chambers, in Miami, Florida, this 4th day of March,
2015.
Copies furnished to:
All Counsel of Record
30
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