Beck-Easley v. Colvin
Filing
15
FINAL OPINION AND ORDER Affirming the decision of the Commissioner. The Clerk is DIRECTED to enter judgment in favor of the Commissioner. Signed by Magistrate Judge Janet F. King on 3/26/2015. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KISTINA BECK-EASLEY,
Plaintiff,
v.
CIVIL ACTION FILE NO.
1:13-CV-02869-JFK
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
FINAL OPINION AND ORDER
Plaintiff in the above-styled case brings this action pursuant to 205(g) of the
Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision
of the Commissioner of the Social Security Administration which denied her disability
claims. For the reasons set forth below, the court finds that the Commissioner’s
decision should be affirmed.
I.
Procedural History
Plaintiff Kistina Beck-Easley filed applications for a period of disability,
disability insurance benefits, and supplemental security income on November 17,
2009, alleging a disability onset date of July 5, 2007. [Record (“R.”) at 164-68]. After
her applications were denied initially and on reconsideration, Plaintiff requested an
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administrative hearing which was held on January 12, 2012. [R. at 40-86]. On March
30, 2012, the Administrative Law Judge (“ALJ”) issued a decision denying Plaintiff’s
applications. [R. at 20-39]. Plaintiff requested and the Appeals Council granted
review of the ALJ’s decision. On June 25, 2013, the Appeals Council adopted the
ALJ’s findings in part and found Plaintiff not disabled. [R. at 1-18]. Having
exhausted her administrative remedies, Plaintiff filed a complaint on August 29, 2013,
seeking judicial review of the Commissioner’s final decision. [Doc. 3]. The parties
have consented to proceed before the undersigned Magistrate Judge.
II.
Statement of Facts
Plaintiff was born on August 6, 1970, and was thirty-six years old at the time
of her alleged onset of disability and forty-one years old at the time of the
administrative hearing. [R. at 5, 31]. Plaintiff meets the insured status requirements
of the Social Security Act through September 30, 2011, and the ALJ found that
Plaintiff has not engaged in substantial gainful activity since July 5, 2007, the alleged
onset date. [R. at 25].
The ALJ found that Plaintiff has the following impairments which are
considered “severe” impairments within the meaning of the Social Security
Regulations: chronic multiple sclerosis pain, fibromyalgia, cervical spine pain, chronic
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opioid usage and obesity. [R. at 25-26]. The ALJ found that Plaintiff does not have
a mental or physical impairment or combination of impairments that meets or
medically equals one of the relevant listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1, and made specific findings that Plaintiff’s mental impairment does not
meet or medically equal the criteria of listings 12.04 (affective disorders) and 12.09
(substance addiction disorders).
The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to
perform a reduced range of sedentary work with the following limitations. Plaintiff
can lift 10 pounds occasionally and 5 pounds frequently. She can stand for 2 hours in
an 8-hour workday and sit for 6 hours in an 8-hour workday. And she can perform
frequent push and pull and foot controls. Plaintiff requires a one-hour interval sit/stand
option and a hand held assistive device for uneven terrain and prolonged ambulation.
She can climb stairs occasionally but is unable to climb ladders. Plaintiff can
occasionally balance, kneel, crawl, stoop and crouch. She is able to handle and finger
frequently. Plaintiff cannot work around hazardous machinery, at unprotected heights
or on vibrating surfaces. And Plaintiff is limited to work that involves simple, routine
and repetitive work tasks or instructions, that does not require close coordination or
interaction with co-workers or the general public, and that is low stress (requiring only
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occasional decision making and occasional changes in work setting), does not require
confrontational involvement with a supervisor and not production pace. [R. at 27].
The ALJ found that a person with Plaintiff’s RFC would not be able to perform
her past relevant work as a home health provider, companion care person or server.
[R. at 31]. Plaintiff is considered a younger individual and has at least a high school
education and can speak English. The ALJ found that transferability of skills is not
material to the determination of disability because using the Medical-Vocational Rules
as a framework supports a finding that Plaintiff is “not disabled” regardless of her
transferable skills. [Id. (citation omitted)]. A vocational expert (“VE”) testified that
there are other jobs that exist in significant numbers in the state and national economy
that a person with the same age, education, work experience and RFC as Plaintiff can
perform. [R. at 32]. The ALJ found that Plaintiff was therefore not under a disability
from her alleged onset date, July 5, 2007, through March 30, 2012, the date of the
ALJ’s decision. [Id.].
The ALJ’s decision [R. at 15-27] states the relevant facts of this case as modified
herein as follows:
The claimant testified that she is 5 feet 7 inches tall and weighs between 175 and
185 pounds. She lives with her husband, three boys and her granddaughter. She
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completed college. She testified that she is disabled due to her mental capacity, pain,
swelling, stress, lack of ability to cope, hands swelling up and experiencing numbness
of her hand. She tries to do small things for herself and her children and can wash
dishes for 5 to 10 minutes.
In January 2010, the claimant completed a report in which she stated that she
was able to dress, bathe, shave and feed herself and was going to church. (Exhibit 6E).
Six months later, the claimant completed a report stating that she does not have any
activities of daily living. (Exhibit 12E). The claimant’s friend, Sandra Bell, also
completed a report in June 2010. (Exhibit 11E). Ms. Bell reported that she talked on
the telephone or saw the claimant at least 4 to 5 times per week and that the claimant
was able to feed herself and prepare light meals, do laundry with assistance, fold
clothes, dust and lift baskets of clothes and was able to drive a car and go shopping for
groceries and personal items.
The claimant’s medical records from Comprehensive Pain Management Center,
Cobb Medical Associates, the Humber Parkerson Clinic, Wellstar Kennestone
Hospital, Wellstar Cobb Hospital and the Pain Solution Treatment Center reflect the
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following treatment and opinions. (Exhibits 1F-33F). Dr. Dexter Tooman1 completed
an Attending Physician’s Disability Statement on September 26, 2008, opining that the
claimant was totally disabled due to fibromyalgia. (Exhibit 26F). Dr. Michaele Brown
treated the claimant between June 19, 2008, and November 18, 2008, at Pain Solution
Treatment Center and noted that, although the claimant complained of all over body
pain to due to fibromyalgia, she reported improvement with home remedies such as
Ben-Gay, Icy Hot and over the counter Advil and with other conservative treatment
including swim therapy, a home exercise program and application of ice and heat
packs. (Exhibit 1F). Dr. Brown also noted that the claimant did not have any trigger
points, that she had an active range of motion, that her musculoskeletal examination
revealed a normal gait and station and that the claimant’s cervical and lumbar spine
had normal curvature. Dr. Brown considered the claimant’s mood and affect normal
and appropriate to the situation. (Exhibit 1F).
Dr. Steven Gary Berger, a licensed consultative psychologist, examined the
claimant on January 14, 2010. Although the claimant appeared anxious, Dr. Berger
found that the claimant’s thoughts were linked in a logical manner and no delusions
1
The decision refers to Dr. Tooman as “Dr. Tooyan.” [R. at 30 (“spelling of the
name is somewhat illegible”)].
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were reported. The claimant had a Global Assessment of Functioning (“GAF”) score
of 55 indicating moderate symptoms. And Dr. Berger opined that the claimant could
understand instructions although she would be slow in her task performance. (Exhibit
4F). In February 2010, Dr. William Meneese, a State agency psychologist, reviewed
the claimant’s records and completed a Psychiatric Review Technique form and found
the claimant not disabled, and Dr. Cassandra Comer, a State agency physician,
completed a Physical RFC Assessment and found the claimant not disabled. (Exhibits
6F, 7F).
Between July 2, 2010, and September 1, 2010, the claimant was treated at
Austell Comprehensive Pain Management for neck and back pain. (Exhibit 12F). The
claimant reported pain as 10/10 on a scale of 1-10 on July 2, 2010, but Dr. Preteesh
Patel observed that the claimant was able to sit comfortably on the examination table
without difficulty or any evidence of pain and that her gait was normal and that she
reported that heat, ice and medication lessen her pain. And, on September 1, 2010, Dr.
Patel noted that the claimant had normal curvature of the lumbar spine, hypertonic
muscles and no trigger points. [R. at 442-43].
The claimant was evaluated by Dr. Carol Glover, a psychiatrist at Wellstar Cobb
Hospital and Medical Center, on August 17, 2010, and seen a second time on
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September 14, 2010. Although the claimant presented with an anxious mood, Dr.
Glover opined that the claimant’s thought process was coherent, memory grossly intact
and mood congruent. And the claimant reported that Xanax makes life more tolerable
and helps to lessen the symptoms of her anxiety. (Exhibit 13F).
Dr. Paul Lance Walker, a consultative physician, examined the claimant on
October 5, 2010, and found normal range of motion of her back including flexion,
extension, lateral bending and lateral rotation and that she did not have any limitation
with the functional use of her upper extremities. X-rays of the lumbar and cervical
spine [R. at 460] show maintained vertebral body heights and alignment and no acute
fracture or dislocation of the lumbar and cervical spine. Dr. Walker observed that the
claimant walked slowly with a cane in her right hand but that she could walk in the
room without a cane. (Exhibits 14F, 15F and 16F). And Dr. Willis Callins, a State
agency medical consultant, opined on November 18, 2010, that the claimant could
frequently lift and/or carry 25 pounds and occasionally lift 50 pounds as well as sit,
stand and walk for 6 hours out of an 8-hour workday. (Exhibit 20F).
On March 16, 2011, at Dallas Comprehensive Pain Management, Dr. Anantha
Kamath noted normal curvature of the claimant’s spine, and Dr. Kamath was unable
to identify any trigger points on deep palpation of the para-vertebral muscles. (Exhibit
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21F). The claimant stated that her average pain was a 7/10, and Dr. Kamath noted that
the claimant reported good pain relief with her medication with little to no side effects
and that her ability to function was improved due to the effective pain control. [R. at
553-56]. And, in April 2011, Dr. Kamath noted that the claimant did not have any
decreased lateral bending of the lumbar spine, that her heel and toe walk were normal,
that reflexes were equal and symmetric and that her toes were “down-going.” (Exhibit
24F).
Additional facts will be set forth as necessary during discussion of Plaintiff
Beck-Easley’s arguments.
III.
Standard of Review
An individual is considered to be disabled if she is unable “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).
The impairment or impairments must result from anatomical,
psychological, or physiological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques and must be of such severity
that the claimant is not only unable to do her previous work but cannot, considering
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age, education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy. See 42 U.S.C. §§ 423(d)(2) and (3).
“We review 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). “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.”
Id. at 1440.
“Even if the evidence preponderates against the
[Commissioner’s] factual findings, we must affirm if the decision reached is supported
by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
“‘We may not decide the facts anew, reweigh the evidence, or substitute our judgment
for that of the [Commissioner].’” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th
Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
“The burden is primarily on the claimant to prove that [she] is disabled, and
therefore entitled to receive Social Security disability benefits.” Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001) (citing 20 C.F.R. § 404.1512(a)). Under the
regulations as promulgated by the Commissioner, a five step sequential procedure is
followed in order to determine whether a claimant has met the burden of proving [her]
disability. See Doughty, 245 F.3d at 1278; 20 C.F.R. §§ 404.1520, 416.920.
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At step one, the claimant must prove that she is not engaged in substantial
gainful activity. See id. The claimant must establish at step two that she is suffering
from a severe impairment or combination of impairments. See id. At step three, the
Commissioner will determine if the claimant has shown that her impairment or
combination of impairments meets or medically equals the criteria of an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See Doughty, 245 F.3d at 1278;
20 C.F.R. §§ 404.1520, 416.920. If the claimant is able to make this showing, she will
be considered disabled without consideration of age, education, and work experience.
See id.
“If the claimant cannot prove the existence of a listed impairment, [she] must
prove at step four that [her] impairment prevents him from performing [her] past
relevant work.” Doughty, 245 F.3d at 1278. “At the fifth step, the regulations direct
the Commissioner to consider the claimant’s residual functional capacity, age,
education, and past work experience to determine whether the claimant can perform
other work besides [her] past relevant work.” Id. If, at any step in the sequence, a
claimant can be found disabled or not disabled, the sequential evaluation ceases and
further inquiry ends. See 20 C.F.R. §§ 404.1520(a), 416.920(a).
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IV.
Findings of the ALJ
The ALJ made the following findings of fact:
1.
The claimant meets the insured status requirements of the Social Security Act
through September 30, 2011.
2.
The claimant has not engaged in substantial gainful activity since July 5, 2007,
the alleged onset date. (20 C.F.R. §§ 404.1571, et seq., and 416.971, et seq.).
3.
The claimant has the following severe impairments: chronic multiple sclerosis
pain, fibromyalgia, cervical spine pain, chronic opioid usage and obesity. (20
C.F.R. §§ 404.1520(c) and 416.920(c)).
4.
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
C.F.R. Part 404, Subpart P, Appendix 1. (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, and 416.926).
5.
The claimant has the residual functional capacity to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a). The claimant is able to lift
10 pounds occasionally and 5 pounds frequently, stand for 2 hours in an 8-hour
workday, sit for 6 hours in an 8-hour workday and can perform frequent pushing
and pulling and foot controls. The claimant requires a one-hour interval
sit/stand option and a hand held assistive device for uneven terrain and
prolonged ambulation. The claimant is able to climb stairs occasionally but is
unable to climb ladders. The claimant is able to balance, kneel, crawl, stoop and
crouch occasionally. The claimant is able to handle and finger frequently. The
claimant is restricted to work that does not require working around hazardous
machinery, at unprotected heights or on vibrating surfaces and to work that is
limited to simple, routine and repetitive work tasks or instructions, that does not
require close coordination or interaction with co-workers or the general public,
and that is low stress (only occasional decision making and changes in work
setting), nonconfrontational involvement with supervisor and is not production
pace.
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6.
The claimant is unable to perform any past relevant work. (20 C.F.R. §§
404.1565 and 416.965).
7.
The claimant was born on August 6, 1970, and was 36 years old, which is
defined as a younger individual age 18-44, on the alleged disability onset date.
(20 C.F.R. §§ 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able to communicate in
English. (20 C.F.R. §§ 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is not disabled, whether or not the claimant has transferable job
skills. (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
10.
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 C.F.R. §§ 404.1569,
404.1569(a), 416.969 and 416.969(a)).
11.
The claimant has not been under a disability, as defined in the Social Security
Act, from July 5, 2007, through March 30, 2012. (20 C.F.R. §§ 404.1520(f) and
416.920(f)).
[R. at 23-33].
V.
Discussion
At the first step of the sequential evaluation, the ALJ found that Plaintiff Beck-
Easley has not engaged in substantial gainful activity since July 5, 2007, her alleged
date of disability onset. [R. at 25]. At the second step, the ALJ found that Plaintiff has
chronic multiple sclerosis pain, fibromyalgia, cervical spine pain, chronic opioid usage
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and obesity which are “severe” impairments within the meaning of the Social Security
Regulations. [Id.]. The ALJ found at step three that Plaintiff does not have a mental
or physical impairment or combination of impairments that meets or medically equals
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. at 26].
At step four, the ALJ found that Plaintiff has the RFC to perform a reduced
range of sedentary work with the following limitations. She can lift 10 pounds
occasionally and 5 pounds frequently, stand for 2 hours in an 8-hour workday, sit for
6 hours in an 8-hour workday and perform frequent push and pull and foot controls.
Plaintiff requires a one-hour interval sit/stand option and a hand held assistive device
for uneven terrain and prolonged ambulation. Plaintiff can climb stairs occasionally
but not ladders. She can balance, kneel, crawl, stoop and crouch occasionally. She
cannot work around hazardous machinery, at unprotected heights or on vibrating
surfaces. She is able is able to handle and finger frequently. She is limited to work
that involves simple, routine and repetitive work tasks or instructions, that does not
require close coordination or interaction with co-workers or the general public and that
is low stress (requiring only occasional decision making and occasional changes in
work setting), not production pace and that does not require confrontational
involvement with a supervisor. [R. at 27]. The ALJ found that Plaintiff is not able to
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perform her past relevant work but that there are other jobs that exist in significant
numbers that an individual with the same age, education, work experience and RFC
as Plaintiff can perform. [R. at 32]. The ALJ therefore found that Plaintiff is not
disabled as defined by the Social Security Act. [Id.].
Plaintiff contends that the ALJ committed several errors and that the ALJ’s
decision should be reversed. Plaintiff’s first argument is that the ALJ failed to follow
the “slight abnormality” standard in finding that Plaintiff’s depression, anxiety and
post traumatic stress disorder (“PTSD”) are non-severe impairments. Plaintiff’s next
argument is that the ALJ failed to properly apply the pain standard. Plaintiff’s third
argument is that the ALJ made inaccurate statements with regard to the evidence cited
as supporting Plaintiff’s ability to work. And Plaintiff contends that the ALJ
committed reversible error by failing to give great weight to the 2007 opinion of Dr.
Dexter Tooman in an Attending Physician’s Statement of Disability. [Doc. 13]. The
Commissioner contends that the ALJ correctly applied the proper standards, that the
ALJ’s error at step five in describing the jobs identified by the VE was corrected by
the Appeals Council and that substantial evidence supports the Commissioner’s
decision that Plaintiff is not disabled. [Doc. 14].
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A.
Step Two Determination: Plaintiff’s mental impairments
At step two of the sequential evaluation process, the claimant has the burden of
showing that she has a severe impairment. See Doughty, 245 F.3d at 1278; and see 20
C.F.R. §§ 404.1520, 416.920. “Step two is a threshold inquiry. It allows only claims
based on the most trivial impairments to be rejected. The claimant’s burden at step two
is mild. 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.” McDaniel v.
Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986); accord Stone v. Comm’r of Social Sec.,
586 Fed. Appx. 505, 511-12 (11th Cir. 1984). Plaintiff contends that the ALJ failed to
apply this “slight abnormality” standard to Plaintiff’s mental impairments and argues
that substantial medical record evidence and her testimony show that her depression,
anxiety and PTSD are more than slight abnormalities and are severe impairments.
[Doc. 13 at 10].
At step two, the ALJ found that Plaintiff has several severe physical
impairments.
[R. at 25].
The ALJ did not discuss Plaintiff’s alleged mental
impairments until step three when evaluating whether Plaintiff has a mental or physical
impairment or combination of impairments that meets or equals a listed impairment.
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[R. at 26]. “Nothing requires that the ALJ must identify, at step two, all of the
impairments that should be considered severe.” Heatly v. Comm’r of Social Sec., 382
Fed. Appx. 823, 825 (11th Cir. 2010) (citations omitted). Accord Jamison v. Bowen,
814 F.2d 585, 588 (11th Cir. 1987); Ingram v. Astrue, 2008 WL 2943287, at *6 n.10
(M.D. Fla. July 30, 2008). The finding of a single severe impairment is all that step
two requires. Heatly, 382 Fed. Appx. at 824-25. Therefore, even if Plaintiff’s mental
impairments are severe as she alleges, because the ALJ found that Plaintiff has at least
one severe impairment, the ALJ did all that was required at step two.
Plaintiff argues that the ALJ nonetheless erred by not including more severe
limitations in her RFC assessment based on her depression, anxiety and PTSD. [Doc.
13 at 9]. The ALJ found, in relevant part, that Plaintiff has the RFC to perform
sedentary work which “is limited to simple, routine and repetitive work tasks or
instructions[,] that does not require close coordination or interactions with co-workers
or the general public, and that is low stress (only occasional decision making and
changes in work setting), nonconfrontational involvement with supervisor and not
production pace.” [R. at 27]. Plaintiff contends that, given the medical record
evidence of her mental impairments and medications and her testimony of panic
attacks, nausea and PTSD and that she has difficulty remembering and concentrating
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and poor sleep due to anxiety, nightmares and PTSD, the ALJ should have included
more severe limitations in her RFC such as limiting her to “less than simple, routine
and repetitive work tasks or instructions.” [Doc. 13 at 9-10, citing R. at 49-50, 55, 64,
280-82, 288, 351-69, 374, 447-59, 721-27, 810, 1019-20].
In support, Plaintiff discusses one of the medical records which she cites: Dr.
Berger’s psychological evaluation. [Doc. 13 at 9-10]. Plaintiff points out that Dr.
Berger diagnosed her condition as “major depression, recurrent, mild and PTSD” with
a GAF score of 55 in January 2010 and that Dr. Berger opined that Plaintiff is “able
to understand instructions, but is significant (sic) limited in her ability to carry out
tasks, likely able to sustain attention for short periods of time if given breaks, her task
performance would be expected to be slow, likely to decompensate under highly
stressful conditions, and likely to get along well with others.” [Doc. 13 at 9, quoting
R. at 321-22 (internal quotation marks omitted)].
However, based on the records cited by the parties in their briefs and the record
as a whole, the court finds that substantial record evidence supports the limitations in
the ALJ’s RFC assessment. The record shows that Plaintiff was experiencing some
anxiety in 2007. [R. at 280-82, 288]. But, as the ALJ found, in February 2008, Dr.
Michaele Brown with Pain Solution Treatment Center noted that Plaintiff’s mood and
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affect were normal and appropriate, and the record shows that Plaintiff had normal
recent, immediate and remote memory and normal language functions. [Exhibit 1F;
R. at 30, 269]. Plaintiff cites records showing that she experienced some anxiety in
July and November 2008 and in October and December 2009. [See R. at 374-77
(anxious over heart palpitations given mother’s health history), 358-66 (anxious about
facial swelling and went to ER on December 24; diagnosis - needs oral surgery), 72124 (chest pain accompanied by anxiety and moderate elevation of systolic blood
pressure), 811 (“Patient needs to learn to set boundries [sic] @ work & @ home. Sleep
poor, PTSD, nightmares of wrecks”)]. Shortly after the December 2009 record cited
by Plaintiff, Dr. Berger evaluated Plaintiff and gave her a GAF of 55 which, as the ALJ
noted, indicates moderate, not severe, problems. See American Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013)). Dr. Berger
found that Plaintiff’s “thoughts were linked in a logical manner . . . no delusions [were]
reported” and that she could understand instructions although her performance would
be slow.
[Exhibit 4F; R. at 30].
The ALJ also noted that the State agency
psychological expert, Dr. William Meneese, who reviewed Plaintiff’s records and
completed a mental RFC form in February 2010, found that Plaintiff was “not
disabled.” [R. at 30; Exhibit 6F].
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Dr. Meneese found that, although Plaintiff’s alleged limits could arise from her
depression, anxiety and PTSD, the medical record evidence through February 2010
including Dr. Berger’s evaluation and Plaintiff’s ADLs “did not reflect signs/sxs of
markedly disabling mental illness.” [R. at 334]. And Dr. Meneese opined that
Plaintiff’s allegations of mental disability were only partially credible. [Id.] Plaintiff
went to the ER in April 2010 and reported not taking a prescription for Xanax, and her
mood and affect were noted to be “normal.” [R. at 351-53]. The ALJ found that, in
August 2010, Plaintiff reported to Dr. Glover, a psychiatrist, that she had been on
Xanax for 2 years and that Xanax helped lessen her symptoms of anxiety. [R. at 30;
Exhibit 13F; see R. at 447-48]. Plaintiff also reported to Dr. Glover, “I’m not
depressed, I’m just stressed.” [R. at 447]. And Dr. Glover found that, although
Plaintiff presented with an anxious mood, her thought process was coherent, her
memory grossly intact and her mood congruent. [R. at 453].
The ALJ found that Dr. Kamath, who treated Plaintiff at Comprehensive Pain
Management between July 2010 and March 2011, reported that Plaintiff’s medication
was providing good pain relief with little to no side effects, and the record reflects that
Dr. Kamath reported that Plaintiff’s ability to function was improved as a result of her
effective pain control. [R. at 29, citing Exhibit 21F; R. at 553 (“able to perform more
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activities”)]. Dr. Kamath noted that Plaintiff did not have any decreased lateral
bending of the lumbar spine on April 15, 2011, and that her heel and toe walk were
normal, reflexes equal and symmetric, and toes “down-going.” [R. at 29; Exhibit 24F].
And Dr. Kamath noted in May, June and July 2011 that Plaintiff’s mood and affect
were normal. [See R. at 642, 646, 650].
For the above reasons, the court finds that substantial medical record evidence
supported the limitations that the ALJ included in Plaintiff’s RFC to account for her
mental impairments, that is, limiting Plaintiff to “simple, routine, and repetitive work
tasks or instructions, that does not require close coordination or interaction with
co-workers or the general public, and that is low stress (requiring only occasional
decision making and occasional changes in work setting), nonconfrontational
involvement with a supervisor, and not production pace.” [R. at 27]. The court finds
that, as stated in the decision, the ALJ “account[ed] for all of [Plaintiff’s mental]
limitations . . . even to an extent greater than the limitations which were demonstrated
in the record.” [R. at 31]. Plaintiff has not shown that the ALJ’s decision should be
reversed because more severe mental-function limitations should have been included
in Plaintiff’s RFC.
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B.
Proper application of the pain standard
Plaintiff’s second argument is that the ALJ did not properly apply the pain
standard. When a claimant seeks to establish disability through subjective testimony
of her pain or other symptoms, a three (3) part “pain standard” established by the
Eleventh Circuit applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). “The
pain standard requires (1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the alleged [symptoms] arising
from that 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” or other
alleged symptom. Id. See also 20 C.F.R. §§ 404.1529, 416.929.
The ALJ found that Plaintiff Beck-Easley suffers from several underlying
chronic medical conditions. [Doc. 13 at 11]. Therefore, Plaintiff met the first
requirement of the pain standard.2
The ALJ then had to consider whether there was either objective medical
evidence confirming the severity of Plaintiff’s alleged symptoms or whether the
objectively determined medical condition underlying her alleged symptoms was of
2
Plaintiff argues that she also has a back pain condition [Doc. 13 at 12, citing R.
at 466, 532 and 831], but an additional medical condition would not change the finding
that step one of the pain standard was satisfied.
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such severity that it could be reasonably expected to give rise to her alleged pain or
symptoms. See 20 C.F.R. §§ 404.1529, 416.929. Plaintiff satisfies this last, third
requirement to meet the pain standard because, as she argues, “even the ALJ found that
‘the claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms.’” [Doc. 13 at 12-13, quoting R. at 28].
Plaintiff argues that the ALJ nonetheless failed to properly apply the pain
standard when he stated that Plaintiff’s “‘statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with’” the ALJ’s RFC assessment. [Doc. 13 at 13, quoting R. at 28,
and citing Geiger v. Apfel, 2000 WL 381920 (M.D. Fla. February 9, 2000)]. In a
report and recommendation to the court, the magistrate judge in Geiger held that, when
the ALJ stated, “Plaintiff has a medically determinable condition that can produce the
symptoms he alleges, ‘but his complaints suggest a greater severity of impairment than
can be shown by the objective medical evidence alone’ [and] proceed[ed] to reject
Plaintiff’s complaints . . . as ‘clearly inflated[,]’” the ALJ misapplied the pain standard
by, “in effect, requiring both objective medical evidence of the severity of the
condition and objective medical evidence of the severity of the limitation.” 2000 WL
381920, at *7 (emphasis in original). But, the court finds that, in Plaintiff Beck23
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Easley’s case, “[u]nlike Gieger . . ., the ALJ did not [ ] require that [Plaintiff] present
objective evidence that confirmed the severity of the alleged pain” before finding that
the pain standard was met. Moore v. Comm’r of Social Sec., 2009 WL 3112105, at
*8 (M.D. Fla. September 28, 2009) (citation omitted).
As in Moore, the ALJ found that Plaintiff Beck-Easley met the pain standard.
[R. at 28]. “After finding that the pain standard was met, the ALJ was required to
determine the functional limitations arising from the [Plaintiff’s] subjective symptoms.
This is a credibility determination . . . . If the ALJ discredits the claimant’s subjective
testimony, [the ALJ] ‘must articulate explicit and adequate reasons for doing so.’”
Moore, 2009 WL 3112105, at *8 (quoting Foote v. Chater, 67 F.3d 1553, 1561-62 (11th
Cir. 1995)). The ALJ articulated reasons for finding that the functional limitations
alleged by Plaintiff “may not be entirely reliable.” [R. at 29]. And the ALJ cited
substantial medical record evidence in support of finding that Plaintiff’s statements
concerning the intensity, persistence and limiting effects of her symptoms were not
credible to the extent they were inconsistent with the ALJ’s RFC assessment. [R. at
28-31]. Plaintiff has not argued or shown that the ALJ failed to make a proper
credibility determination. And the ALJ’s “clearly articulated credibility finding with
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substantial supporting evidence in the record will not be disturbed by [the] court.”
Foote, 67 F.3d at 1562 (citation omitted).
C.
Whether the ALJ made inaccurate statements about the evidence
Plaintiff argues that the ALJ made inaccurate statements regarding the evidence
in evaluating Plaintiff’s ability to work. [Doc. 13 at 13]. Plaintiff gives just one
example of the ALJ inaccurately stating the evidence – a mistake in describing the
occupations identified by the VE for a person with Plaintiff’s age, education, work
experience and RFC – and argues that “[this] misstatement taken as a whole, reveal[s]
an inaccurate review of the record and inadequate support in the record for the ALJ’s
decision.” [Doc. 13 at 14, citing R. at 32]. Plaintiff’s argument fails for several
reasons.
Plaintiff is correct that the ALJ mistakenly listed the occupations of potato chip
sorter, small products assembler and basket filler as examples of jobs that the VE
testified a person with Plaintiff’s age, education, experience and RFC could perform.
[See R. at 32, 76-77]. Those jobs are light, unskilled occupations. The VE identified
the unskilled occupations of buckle wire inserter, a sticker and final assembler for a
person with Plaintiff’s RFC to perform a reduced range of sedentary work. Plaintiff
raised the above misstatement by the ALJ when she asked the Appeals Council (“AC”)
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to review the ALJ’s decision. The AC granted review and adopted the ALJ’s findings
at steps 1 through 4 but found that, at step 5, the ALJ had “inadvertently cited light
jobs that exceeded the established [RFC] for a reduced range of sedentary work.” [R.
at 4-5]. The AC then addressed whether the VE’s testimony regarding the occupations
of buckle wire inserter, sticker and final assembler supported the ALJ’s finding that
Plaintiff is not disabled. [R. at 5]. The AC found that the “constant handling and
fingering required of buckle wire inserters and stickers exceeds the [ALJ’s RFC]
limitation of handling and fingering frequently” but that the occupation of final
assembler can be performed by a person with the Plaintiff’s age, education, work
experience and RFC to perform a reduced range of sedentary work and that such jobs
exist in significant numbers in Georgia and in the national economy. [Id.]. The AC
therefore found that Plaintiff is not disabled, although for different reasons than stated
in the ALJ’s decision. Plaintiff’s argument that the ALJ’s decision should be reversed
is therefore redundant and a moot issue because the AC, in effect, corrected the ALJ’s
misstatement and reasoning and found Plaintiff not disabled. Plaintiff has not argued
that the AC erred in making that finding.
Also, Plaintiff’s reliance on Flentroy-Tennant v. Astrue, 2008 WL 876961
(M.D. Fla. March 27, 2008), [see Doc. 13 at 14], is misplaced. In Flentroy-Tennant,
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the court stated that its “independent review of the record as a whole, as required under
Bloodsworth, 703 F.2d at 1239, reveal[ed] that the ALJ [had] misquoted and
misconstrued the record evidence on numerous points.” Flentroy-Tennant, 2008 WL
876961, at *6.3 Relying on Flentroy-Tennant, the claimant in Rothgeb v. Astrue, 2012
WL 3611281 (M.D. Ala. August 21, 2012), made the same argument as made by
Plaintiff Beck-Easley in this case. “Rothgeb point[ed] to several statements by the
ALJ which he contended [were] so inaccurate that they demonstrate[d] the ALJ’s
failure to comprehend or adequately consider the record as a whole[,]” and the court
addressed each specific alleged error. Rothgeb, 2012 WL 3611281, at *6. Unlike the
plaintiff in Rothgeb, however, Plaintiff Beck-Easley has not identified any ALJ
misstatement or mischaracterization of the evidence other than the one inaccurate
statement by the ALJ discussed above which was addressed and remedied by the
Appeals Council. While the court has an obligation to “scrutinize the record as a
3
It is unclear whether the misstatements in Flentroy-Tennant were raised by the
claimant or identified by court sua sponte; it is also unclear whether the claimant was
represented by counsel or proceeding pro se. When a claimant is not represented by
an attorney at the hearing, the ALJ has a “special duty [that] requires the ALJ to
‘scrupulously and conscientiously probe into, inquire of, and explore for all the
relevant facts’ and to be ‘especially diligent in ensuring that favorable as well as
unfavorable facts and circumstances are elicited.’” Graham v. Apfel, 129 F.3d 1420,
1423 (11th Cir. 1997) (quoting Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.
1981)). However, Plaintiff Beck-Easley was represented by counsel.
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whole . . . to determine if the decision reached is reasonable . . . and supported by
substantial evidence . . . [,]” Bloodsworth 703 F.2d at 1239 (citations omitted), it is not
the court’s job to parse the record for evidence to make an argument or advocate for
a plaintiff.
Plaintiff Beck-Easley’s argument that the ALJ made inaccurate statements with
regard to her ability to work is also not supported by her alleged back condition. [See
Doc. 13 at 12]. An MRI of the lumbar spine in May 2008 showed “minor broad-based
annular disc bulges and minor bilateral facet hypertrophy at L4-L5 without associated
central or neural foraminal stenosis [and] no evidence of focal disc herniation.” [R. at
831]. A second MRI of the lumbar spine in July 2010 showed degenerative disc
disease at L5/S1 “with a small right L5-S1 foraminal disc herniation and some mild
impingement upon the exiting right L5 nerve root [for which it was noted] clinical
correlation [was] needed.” [R. at 532]. And Plaintiff points out that State agency
examiner Dr. Lance Walker included back pain in his diagnosis in October 2010. [R.
at 466]. However, the ALJ did not misstate or mischaracterize the record when he
stated that Dr. Walker’s clinical observation was that Plaintiff had “normal range of
motion of her back, including flexion, extension, lateral bending and lateral rotation”
and that, while Plaintiff “walked slowly with a cane in her right hand, she could walk
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in the room without a cane.” [R. at 30; Exhibits 15F and 16F]. Nor did the ALJ
misstate the record from Dr. Willis Callins, the State agency medical consultant who
completed a Physical RFC Assessment in November 2010 and opined that Plaintiff
could frequently lift and/or carry 25 pounds and occasionally lift 50 pounds as well as
sit, stand and walk for 6 hours out of an 8-hour workday. [R. at 29; Exhibit 20F]. In
support of that opinion, Dr. Callins found “inconsistent phys. findings widespread in
[the medical record evidence]” on Plaintiff’s alleged chronic MS pain and that Dr.
Walker, the consultative examiner, had noted that Plaintiff’s complaints of chronic MS
pain were exaggerated as were Plaintiff’s alleged cervical spine limitations which were
mild not severe. [R. at 551].4 Dr. Callins also found that “No MDI was established for
fibromyalgia” and that “Inconsistencies between claimant’s allegations and [medical
record evidence (‘MER’)] continue to be significant, despite addition of new MER for
the purpose of clarification.” [Id.].
The clinical observations by Plaintiff’s treating physician, Dr. Kamath, in 2011,
are consistent with Dr. Callins’ and Dr. Walker’s opinions. As the ALJ noted, Dr.
4
See also, e.g., Dr. Walker, Exhibits 14F and 16F, R. at 465 (“Her symptoms
seem exaggerated during the course of the examination . . . .”) and 466 (noting
“paravertebral muscle spasm in her lumbar spine [but n]o tenderness” and
“inconsistent findings with straight leg raising test”).
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Kamath observed on March 16, 2011, that no trigger points could be identified on deep
palpation of the para-vertebral muscles and that Plaintiff reported an improved ability
to function on her pain control medication. [R. at 29; Exhibit 21F; R. at 553 (“reports
she is able to perform more activities because of her current medication regimen”;
“admits to taking more [pain meds] than rx’d”), 554 (“She is moderately active.”)].
And, in April 2011, Dr. Kamath found that Plaintiff did not have “any decreased lateral
bending of the lumbar spine, that her heel and toe walk were normal, and that reflexes
were equal and symmetric . . . .” [R. at 29; Exhibit 24F]. For the above reasons and
authority, the court finds that Plaintiff’s third argument – that the ALJ misstated the
record evidence – is not a basis for reversing the Commissioner’s final decision that
Plaintiff is not disabled.
D.
Dr. Dexter Tooman
Plaintiff’s last argument is that the Commissioner’s decision should be reversed
because the ALJ failed to give great weight to the opinion of Dr. Dexter Tooman. [Doc.
13 at 16]. The record contains a single, one page Attending Physician’s Statement of
Disability that Dr. Tooman completed on September 26, 2008, with a section at the
bottom of the page for Plaintiff’s employer to complete. (Exhibit 26F). Dr. Tooman
reported that Plaintiff had been seen monthly from July 12, 2007, through September
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5, 2008, after an accident on July 5, 2007, for complaints of severe neck pain and mid
back and low back pain. [R. at 718]. Under objective findings, Dr. Tooman noted
“positive orthopedic test” and “[undecipherable] findings of myospasms.” [Id.]. Dr.
Tooman opined that Plaintiff was disabled and stated that he was “unable to determine”
if Plaintiff would be able to resume work but that she was a “suitable candidate for a
rehabilitation program” although fibromyalgia might prolong her disability. [Id.]. The
ALJ found that Dr. Tooman’s statement of disability was “an issue reserved to the
Commissioner of Social Security.” [R. at 30].
Because the determination about whether a claimant has met the statutory
definition of disability is reserved to the Commissioner, a medical source’s opinion that
a claimant is disabled is not controlling. See 20 C.F.R. §§ 404.1527(d), 416.927(d).
However, the relevant regulations promulgated by the Social Security Administration
state in pertinent part:
(2)
Generally, we give more weight to opinions from your treating
sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture
of your medical impairment(s) and may bring a unique perspective
to the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations. . . .
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(i)
Generally, the longer a treating source has treated
you . . . the more weight we will give to the source’s
medical opinion. . . .
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
A treating medical source’s opinion is given controlling weight if it is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence” in the record. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2) If the treating source’s opinion is not given controlling
weight, then the Commissioner is required to consider the following six factors in
determining the weight to give the opinion: (1) length of the treatment relationship and
the frequency of examination; (2) nature and extent of the treatment relationship; (3)
supportability; (4) consistency; (5) specialization; and (6) any other relevant factors.
See 20 C.F.R. §§ 404.1527(c), 416.927(c).
Plaintiff argues that Dr. Tooman’s treating opinion was entitled to more weight
than the ALJ gave to the opinion of Dr. Lance Walker who was a consulting examining
physician. [Doc. 13 at 18].5 And Plaintiff contends that the ALJ “failed to address the
length of treatment, frequency of examination, nature and extent of the treatment
5
Dr. Tooman’s statement identifies Dr. Tooman as the referring physician and
identifies a “Myron Lind, D.C.” under “other physicians [which] have treated the
patient[.]” [R. at 718].
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relationship, support of opinion afforded by medical evidence, consistency of opinion
with the record as a whole, and specialization of Dr. Tooman when evaluating [his]
opinions.” [Id.].
The Eleventh Circuit has consistently held that the opinions of treating
physicians must be accorded substantial or considerable weight by the Commissioner
unless good cause exists to discredit these opinions. See Lewis, 125 F.3d at 1440;
Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996,
1000 (11th Cir. 1987); MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986);
Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir. 1985). “Good 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.’” Winschel v. Comm’r of Social
Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (quoting Phillips, 357 F.3d at 1241).
In determining the weight to give to Dr. Tooman’s opinion, the ALJ was not
required to address each of the above factors listed in the regulations, 20 C.F.R. §§
404.1527(c), 416.927(c), “as long as the ALJ provide[d] ‘good cause’ for rejecting the
treating source’s medical opinion.” Lawton v. Comm’r of Social Sec., 431 Fed. Appx.
830, 833 (11th Cir. 2011). The ALJ explained why she found “good cause” to reject
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Dr. Tooman’s opinion. “Good cause” exists “where the doctor’s opinion was not
bolstered by the evidence, or the evidence supported a contrary finding.” Lewis, 125
F.3d at 1440 (citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987); Sharfarz
v. Bowen, 825 F.2d 278, 280-81 (11th Cir. 1987)). The ALJ found that Dr. Tooman
had not cited any objective medical test or other objective evidence to support his
statement that Plaintiff had a “positive orthopedic test” and “[undecipherable] findings
of myospasms.” The ALJ also found that Dr. Tooman’s opinion was “contrary to the
evidence of a whole” which the ALJ had just discussed at length and that, “[n]otably,
more recent evidence indicates that the claimant can perform gainful work activity.”
[R. at 30, citing Exhibits 1-33].
For the above reasons, the court finds that the ALJ “articulated specific reasons
for declining to give the treating physician’s opinion controlling weight, and [that the
ALJ’s] reasons [are] supported by substantial evidence.” Forrester v. Comm’r of
Social Sec., 455 Fed. Appx. 899, 902 (11th Cir. 2012). The ALJ therefore did not err
when she gave Dr. Tooman’s opinion less weight than the opinion of the consulting
physician, Dr. Walker. See Winschel, 631 F.3d at 1179; Moore v. Barnhart, 405 F.3d
1208, 1212 (11th Cir. 2005) (“Where our limited review precludes re-weighing the
evidence anew . . . , and as the ALJ articulated specific reasons for failing to give [the
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treating doctor’s] opinion controlling weight, we find no reversible error.”) (internal
citation omitted). Remand accordingly is not warranted.
IV.
Conclusion
For the foregoing reasons and cited authority, the court finds that the
Commissioner’s final decision is supported by substantial evidence and based upon
proper legal standards. It is, therefore, ORDERED that the Commissioner’s decision
be AFFIRMED.
The Clerk is DIRECTED to enter judgment in favor of the Commissioner.
SO ORDERED THIS 26th day of March, 2015.
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