JOHN E. OTT, Magistrate Judge.
Plaintiff Rhonda K. Christian brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Acting Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits. (Doc. 1).
Plaintiff filed her application for disability insurance benefits under Title II of the Social Security Act on May 9, 2012, alleging that she became disabled beginning May 4, 2012. (R. 10, 127, 138).
In reviewing claims brought under the Social Security Act, this court's role is a narrow one. "Our review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner, and whether the correct legal standards were applied." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The plaintiff must demonstrate that the decision of the Commissioner is not supported by substantial evidence. See, e.g., Allen v. Schweiker, 642 F.2d 799 (5th Cir. 1981). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Winschel v. Comm'r. of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and citations omitted). The court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner], rather [it] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1982)) (internal quotations and other citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The court gives deference to factual findings and reviews questions of law de novo. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Accordingly, "[n]o . . . presumption of validity attaches to the [Commissioner's] conclusions of law." Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
To qualify for disability benefits, a claimant must show "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(1). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
Determination of disability under the Social Security Act requires a five step analysis. 20 C.F.R. § 404.1520(a). Specifically, the Commissioner must determine in sequence:
Evans v. Comm'r of Soc. Sec., 551 F. App'x 521, 524 (11th Cir. 2014)
Plaintiff was 53 years old at the time of the ALJ's decision. (R. 37-38). She has a high school education and attended vocational school for nursing. (R. 38). Plaintiff has past relevant work as a LPN. (R. 54). She alleges a disability onset date of May 4, 2012. (R. 10).
Plaintiff alleges in her initial disability report that she was unable to work due to "Back Injury" and "Arthritis." (R. 142). At her administrative hearing, she testified that she could not walk or sit for more than 10 minutes at a time due to her back pain. (R. 40). She stated that she cannot stand in one position; she "alternate[s] legs when [she's] in a standing position, just you know, like a rocker rocking back and forth." (R. 40). Plaintiff testified that she spent "about six" hours a day, during normal work hours, lying down in bed to deal with her pain. (R. 40). She testified that "on a good day" her pain was a six; when her medication wears off, her pain is a ten. (R. 41).
Plaintiff further testified that she was only able to sleep three hours continuously at night because of her pain. (R. 42). Other than activities involving bending or twisting, like putting on shoes, Plaintiff testified that she was able to dress and care for herself. (Id.) She stated that her husband took care of the household chores and cooking, though she could make "sandwiches and microwavables and things like that." (R. 42-43). She testified she could consistently lift a half gallon daily, but not more than that because "the more I do, I know I shouldn't do it. . . . Because of the pain. The pain becomes worse." (R. 43).
Following Plaintiff's hearing, the ALJ found that she had not engaged in substantial gainful activity since May 4, 2012, the alleged onset date. (R. 13). The ALJ determined that Plaintiff had the following severe impairments: status post lumbar laminectomy times two secondary to a work related herniated nucleus pulposus, chronic severe muscle spasms of the lower back secondary to lumbosacral neuropathic dystonia, osteoporosis, degenerative joint disease/arthritis, and obesity. (R. 13). The ALJ also determined that Plaintiff had the following non-severe impairments: carotid artery stenosis, hypercholesterolemia or hyperlipidemia and vitamin D deficiency, rash, dyshidrosis, bronchitis, plantar fasciitis, pernicious anemia, fatigue/malaise, restless leg syndrome, and edema. (R. 17-18). The ALJ concluded that Plaintiff's impairments do not meet or medically equal one of the listed impairments. (R. 18). The ALJ found that Plaintiff retained the residual functional capacity ("RFC") to perform light work "except with only occasional stooping and crouching; no climbing; no driving; no upper extremity or right lower extremity pushing and/or pulling; and a temperature controlled environment." (R. 19). The ALJ found that Plaintiff could not perform her past relevant work as a LPN. (R. 24).
Relying on the Vocational Expert's ("VE") testimony, the ALJ found that jobs exist in the national economy that Plaintiff could perform, including information clerk and office helper. (R. 25). The ALJ concluded, therefore, that Plaintiff was not disabled under the meaning of the Social Security Act during the relevant period. (R. 25-26).
Plaintiff initially asserts that the ALJ failed to properly consider the opinions and conclusions of Dr. Candice Hagler, her treating physician. (Doc. 9 at 29). She also asserts that the ALJ improperly discredited her subjective testimony and posed an incomplete hypothetical to the Vocational Expert. (Id. at 46 & 55)
A treating physician's opinion "must be given substantial or considerable weight unless `good cause' is shown to the contrary." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). "Good cause" is found in three circumstances: (1) when a doctor's opinion is not supported by the evidence; (2) when the evidence supports a contrary finding; (3) when the doctor's opinions are either conclusory or internally inconsistent. See id. "The ALJ must clearly articulate the reasons for giving less weight to the opinion of a treating physician, and the failure to do so is reversible error." Id.
The ALJ stated as follows concerning Dr. Hagler:
(R. 21).
The record demonstrates that Dr. Hagler first saw Plaintiff in 2008. (R. 260 & 355). Plaintiff initially complained of back pain, which she attributed to sitting in a new chair at her desk. (Id.) Dr. Hagler prescribed Ibuprofen or Celebrex daily, back stretches and a heating pad daily, and a change in Plaintiff's desk set-up. Dr. Hagler also stated that she was going to follow Plaintiff's progress "closely." (Id.) Dr. Hagler saw Plaintiff numerous times from 2008 through her alleged disability onset date in May 2012. Among other complaints, Plaintiff continued to report knee and foot pain. (R. 221, 239, 241-42, 243, 246, 248, 251, 253 & 256). Plaintiff's history of chronic back pain "secondary to an injury" was consistently documented during this period. (R. 241, 243, 246-48, 249, 251-258). Dr. Hagler testified that she personally witnessed Plaintiff's pain symptoms because Plaintiff previously worked with her for an extended period. Specifically, Dr. Hagler stated:
(R. 358).
After Plaintiff's alleged disability onset date, Dr. Hagler's treatment notes reflect that Plaintiff experienced foot pain. (R. 221, 228, 237-39). It was described as "daily" "acute" "foot pain." (Id). Dr. Hagler explained that the "[p]ain starts after walking for a while and gets worse as the day goes on." (R. 221, 228, 237). Plaintiff's foot pain was managed via medication. (R. 221, 228, 217). Dr. Hagler's visit notes also consistently list Plaintiff's "chronic back pain" in the "Past Medical History" section after the alleged onset date. (R. 218, 222, 225, 229, 231, 234, 237). However, Dr. Hagler's records during this period also show that Plaintiff never complained specifically of "disabling back pain or limitations." (R. 21). While Dr. Hagler's treatment notes do list Plaintiff's chronic back pain, they do not provide evidence to support the limitations enumerated by Dr. Hagler in the functional capacity assessment done in November 2013. To the contrary, while the notes chronicle Plaintiff's history of chronic back pain, they do not indicate the type of debilitating limitations articulated by the assessment. While the court does credit Dr. Hagler's observations of Plaintiff as having difficulty performing at work as a nurse, that alone is insufficient to support the limitations suggested in the assessment. Additionally, those observations do not demonstrate that the conclusions and limitations articulated by the ALJ in his decision are erroneous.
Plaintiff next argues that Dr. Kelsey's treatment notes are not inconsistent with Dr. Hagler's opinions and conclusions. (Doc. 37-9). On June 20, 2012, during Plaintiff's first visit with Dr. Kelsey after her alleged onset date, Plaintiff told Dr. Kelsey that she
(R. 190). Thereafter, Dr. Kelsey states:
judiciously in order to prevent any type of addiction or dependency. (Id. (bold added)). After a physical examination, Dr. Kelsey noted that there was "[n]o significant change from her last exam which the patient was having a lot of problems with forward flexion as well as left lower extremity radiculopathy. Another possibility to control some of the pain might be an epidural block."
The ALJ found as follows concerning Plaintiff's medical history with Dr. Kelsey:
(R. 21).
Plaintiff argues that the opinion of Dr. Kelsey, like Dr. Hagler, is entitled to greater weight because of the "longitudinal picture" that he can provide concerning her condition. (R. 29-32). Plaintiff then states, "Dr. Kelsey objectively found `pain and tenderness in the lower back'" that radiated to her lower left extremity in a March 2012 physical examination. (Doc. 9 at 35 (citing R. 177)). Lastly, Plaintiff states that Dr. Kelsey agreed with her statement that she could not perform meaningful work without taking a lot of narcotic pain medication. (Id. (citing R. 190)).
Dr. Kelsey's records demonstrate that Plaintiff did experience a change in her condition in 2012 and that her condition was long term. Additionally, during her June 19, 2013 visit, Plaintiff stated that her back pain had flared-up and was radiating into her left lower extremity. (R. 216). Dr. Kelsey also noted positive straight leg responses while Plaintiff was in the sitting and supine positions. (Id.) Plaintiff was continued on her medication and directed to follow-up with Dr. Kelsey in three months. During her September 26, 2013 visit, Plaintiff admitted having "good and bad days." (R. 217). Dr. Kelsey noted "she still needs to continue taking her medication as prescribed." (Id.) During both visits, Dr. Hagler diagnosed Plaintiff with "[s]evere chronic muscle spasms down the lower back and leg secondary to LS neuropathic dystonia." (R. 216-17).
Dr. Kelsey's observations and assessments demonstrate that Plaintiff had additional pain and tenderness, a reduced range of motion in her lumbar spine, and positive straight leg tests on her left side in mid-2012. (R. 177). While these observations and assessments are consistent with and supportive of Plaintiff's severe impairment, they do not support the extreme limitations enumerated in Dr. Hagler's opinion. To the extent that Dr. Kelsey noted Plaintiff's situation "might be best amended with her taking a slow approach to life" after Plaintiff stated she could not continue to work as a nurse or in "any other meaningful format" without significant narcotic pain medication, that statement does not equate to Plaintiff not being able to work at all or justify the severe limitations enumerated by Dr. Hagler.
Plaintiff next argues that Dr. Clark's examination of her "does not support" a finding contrary to Dr. Hagler's opinion. (Doc. 9 at 33, 42-45). Specifically, Plaintiff states the ALJ failed to demonstrate good cause for preferring the opinion of Dr. Clark over that of Dr. Hagler. (Id. at 42-45).
During Dr. Clark's interview to obtain Plaintiff's personal history, Plaintiff stated as follows:
(R. 195). In Plaintiff's "History of Functional Status," Dr. Clark stated:
(R. 196). Following his examination and assessment, Dr. Clark noted in the "Impressions" section as follows:
3. Left knee arthritis. Ms. Christian had a left knee surgery and I did note minimal swelling of this joint today and very minimal decrease in range of motion. I suspect that her inability to complete some of the more advanced ambulation testing is most likely due to back pain and not necessarily knee impairment, however, it is feasible that [a] job that would require repeated squatting down and getting up would be difficult for her. Overall impairment from the knee, however, is mild.
(R. 199-200).
Dr. Clark's report is in most respects inconsistent with Dr. Hagler's Functional Capacity Assessment. (R. 361-362). They do agree, however, that Plaintiff should be restricted from heavy lifting or repeated squatting. (R. 21, 199-200). Beyond that commonality, they diverge. Dr. Hagler believes Plaintiff needs to lie down or remain recumbent almost half the day. Dr. Clark indicates that Plaintiff could work in a retail store so long as it did not require heavy lifting or squatting. (Compare R. 199 & 362). Additionally, while Dr. Hagler believes Plaintiff would miss approximately 30 days of work per year, Dr. Clark makes no such finding in his assessment. Additionally, nothing in the record other than Plaintiff's statements would support such a conclusion.
Plaintiff next challenges the ALJ's evaluation of her credibility. She asserts the ALJ failed to consider the objective medical evidence and "manufactur[ed] supposed inconsistencies that did not actually exist." (Doc. 9 at 46 & 49). The Commissioner retorts that the ALJ properly evaluated the credibility of Plaintiff's subjective complaints of disabling symptoms. (Doc. 12 at 10).
When a claimant asserts disability premised on pain or other subjective symptoms, he or she must present evidence to support the Eleventh Circuit's pain standard.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Applying this standard, Chief United States District Judge Karon O. Bowdre has stated:
Siquina v. Colvin, Case No. 3:11-cv-3269-KOB, 2013 WL 5521156, *6 (N.D. Ala. Sept. 30, 2013). In making this assessment, an ALJ "is entitled to consider inconsistencies between a claimant's testimony and the evidence of record." McCray v. Massanari, 175 F.Supp.2d 1329, 1338 (M.D. Ala. 2001).
In this case, Plaintiff stated in her June 15, 2012 Function Report that her daily activities consist of the following:
(R. 151). She further stated she could not "sleep longer than 4 hrs., (sit longer than 30 min. in [a] chair)," or "stand long enough to do anything" in the kitchen other than prepare the simple foods that she ate every day. (R. 152-153). She described her limits as follows:
(R. 156).
Plaintiff's hearing testimony was summarized, in pertinent part, by the ALJ as follows:
(R. 20-21). In assessing this testimony, the ALJ stated:
(R. 23).
Plaintiff challenges the following characterizations of her by the ALJ: (1) that she had the ability to prepare food, to "wash dishes with her husband's help," and to sit for 30 minute periods and (2) that she admitted that her pain medications were effective. (Doc. 9 at 49-50). Plaintiff is correct that some of the ALJ's characterizations were not entirely accurate. For instance, it is a stretch to say that Plaintiff had the ability to prepare food, when she consistently stated in her function report and at the hearing that she was limited to fixing soup, sandwiches, or microwavable items. (Compare R. 43, 151 & 153). Other characterizations were generally accurate. Plaintiff reported that she tried to wash the dishes daily with her husband's help, which is consistent with the ALJ's notation in his decision. (R. 151). The ALJ's characterization of her testimony concerning her medication also was in sum and substance accurate. He stated, "her medications were slightly effective for pain." (R. 20). Plaintiff stated during her testimony that the medications were "slightly effective," allowing her to "be calm instead of whiny and irritable." (R. 45). The difference is inconsequential.
With regard to her ability to sit, the ALJ's characterization was accurate. Plaintiff testified at the hearing that she could not sit more than 10 to 15 minutes. She stated in her report that she could sit no more than 30 minutes. (Compare R. 40 & 151). Plaintiff also points out that it is un-contradicted that she cannot sit for long periods of time and that she needs to lie down for several hours a day. (Doc. 9 at 50). While Plaintiff is correct about the nature of her testimony, the latter point — that she needs to lie down for extended periods — is conspicuously absent from her function report. In describing her daily activities in her function report, she states that she will lie down around noon before she prepares lunch and then will lie on the couch for about 30 minutes later in the afternoon. (R. 151). At the hearing, she testified that she was lying down about six hours a day, four days a week since May 2012. (R. 40 & 44-45). On bad days she would lie in bed all day.
In view of the differences between Plaintiff's hearing testimony-particularly that she lies down between six hours on a "regular day" and "all day" on a bad day; she has trouble putting on her pants, shoes, and socks; and she cannot shop, cook, or do any chores — and her statements in the function report that she prepared soup and sandwiches, visited her mother daily for about an hour, walked and drove, and shopped for groceries with her husband, the undersigned finds that the decision of the ALJ is supported by substantial evidence. In reaching this conclusion, the undersigned recognizes that a limited ability to perform activities of daily living do not preclude a finding of disability. See Frizzell v. Astrue, 487 F.Supp.2d 1301, 1305-06 (N.D. Ala. 2007) (the claimant's limited daily activities, which included light household chores, going to church, cooking, and watching television, did not rule out the presence of disabling pain). However, here Plaintiff's activities and medical records do not support a finding that she is disabled.
To the extent that Plaintiff argues the ALJ failed to mention any of the objective evidence in Dr. Kelsey records, the court finds she is entitled to no relief for a number of reasons. First, the ALJ did examine and discuss the medical evidence from Dr. Kelsey. (See R. 13-15 & 22 ("The records of the claimant's pain management specialist, Dr. Kelsey, are afforded more weight, and do not indicate that the claimant has had disabling pain or limitations."). Second, most of the records Plaintiff cites in her brief date back to the period from 2006 until 2010, while Plaintiff was working. The only records cited from the approximate onset date (May 2012) are Dr. Kelsey's notations that Plaintiff had "`pain and tenderness in the lower back' on March 21, 2012" and "forward flexon greater than 70 degrees increases her pain," which radiates into her left lower extremity. (Doc. 9 at 47 (citing R. 177)). Additionally, Plaintiff cites to a consultative x-ray on October 12, 2012, which shows "moderate interspace narrowing at L5-S1" and lower lumbar facet joint degenerative change most severe at L5-S1." (Id. (citing R. 202)). The court fails to see how these limited records warrant altering the determination of the ALJ in this case.
Plaintiff next argues that the ALJ failed to properly evaluate her situation in light of the relevant factors enumerated in SSR 96-7p. (Doc. 9 at 53). Specifically, she asserts:
(Doc. 9 at 53 (underline in original)).
Social Security Ruling (SSR) 96-7p provides, in pertinent part, that when assessing the credibility of an individual's statements, the ALJ must consider the following:
SSR 96-7p (1996 WL 374186 (July 2, 19 96)).
Lastly, Plaintiff asserts that the hypothetical questions posed to the VE were incomplete in that they did not include all of Plaintiff's limitations. (Doc. 9 at 55). Specifically, Plaintiff argues that the hypothetical left out her limitations of having to lie down for several hours a day, being able to sit for only one hour a day, and being expected to miss 30 days of work a year under the best of circumstances. (Id.) The Commissioner retorts that the ALJ's hypothetical question was consistent with Plaintiff's RFC. (Doc. 12 at 14).
When an ALJ relies on the testimony of a VE, any hypothetical question that is posed to the VE must "comprise[] all of the claimant's impairments." Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). In this case, the court finds for the reasons stated herein that the substantial evidence supports the ALJ's RFC finding that Plaintiff should be limited to "light work . . . with only occasional stooping and crouching; no climbing; no driving; no upper extremity or right lower extremity pushing and/or pulling. . . ." (R. 19). Additionally, the court finds that Plaintiff has failed to show that she has additional limitations or that the ALJ erred when he assessed the medical evidence and her credibility. The ALJ's decision not to include Plaintiff's alleged additional limitations in the hypothetical to the VE is supported by substantial evidence in the record. See Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cr. 2004) (holding that an ALJ is "not required to include findings in the hypothetical that the ALJ [has] properly rejected as unsupported"). Accordingly, the ALJ properly determined that Plaintiff would be able to perform light unskilled jobs that are available in the national economy in significant numbers. (R. 25).
For the reasons set forth above, the undersigned finds that the decision of the Commissioner is due to be affirmed.
(R. 177). Dr. Kelsey also noted the following in Plaintiff's physical examination:
(Id.) Plaintiff was diagnosed with status-post lumbar laminectomy secondary to a work-related HNP; severe chronic muscle spasms down the lower back secondary to LS neuropathic dystonia; and osteoporosis. (Id.)
(R. 22).
