CHARLES S. COODY, Magistrate Judge.
The plaintiff applied for applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., alleging that she was unable to work because of a disability. She is seeking disability benefits for a closed period from the date of onset on January 15, 2009 until the last date she was insured on December 31, 2010. Her application was denied at the initial administrative level. The plaintiff then requested and received a hearing before an Administrative Law Judge ("ALJ"). Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent request for review. The ALJ's decision consequently became the final decision of the Commissioner of Social Security (Commissioner).
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable to
To make this determination,
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The standard of review of the Commissioner's decision is a limited one. This court must find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Substantial evidence is "more than a scintilla," but less than a preponderance; it "is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (quotation marks omitted). The court "may not decide the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of the [Commissioner]." Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration in original) (quotation marks omitted).
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
(Doc. # 12, Pl's Br. at 6).
A disability claimant bears the initial burden of demonstrating an inability to return to her past work. Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990). In determining whether the claimant has satisfied this burden, the Commissioner is guided by four factors: (1) objective medical facts or clinical findings, (2) diagnoses of examining physicians, (3) subjective evidence of pain and disability, e.g., the testimony of the claimant and her family or friends, and (4) the claimant's age, education, and work history. Tieniber v. Heckler, 720 F.2d 1251 (11th Cir. 1983). The ALJ must conscientiously probe into, inquire of and explore all relevant facts to elicit both favorable and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981). The ALJ must also state, with sufficient specificity, the reasons for her decision referencing the plaintiff's impairments.
42 U.S.C. § 405(b)(1) (emphases added). Within this analytical framework, the court will address the plaintiff's claims.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 CFR § 404.1527 (d)(2)). The ALJ's failure to give considerable weight to the treating physician's opinion is reversible error. Broughton, 776 F.2d at 961-62.
There are, however, limited circumstances when the ALJ can disregard the treating physician's opinion. The requisite "good cause" for discounting a treating physician's opinion may exist where the opinion is not supported by the evidence, or where the evidence supports a contrary finding. Good cause may also exist where a doctor's opinions are merely conclusory, inconsistent with the doctor's medical records, or unsupported by objective medical evidence. See Jones v. Dep't. of Health & Human Servs., 941 F.2d 1529, 1532-33 (11th Cir. 1991); Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991); Johns v. Bowen, 821 F.2d 551, 555 (11th Cir. 1987). The weight afforded to a physician's conclusory statements depends upon the extent to which they are supported by clinical or laboratory findings and are consistent with other evidence of the claimant's impairment. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986). The ALJ "may reject the opinion of any physician when the evidence supports a contrary conclusion." Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). The ALJ must articulate the weight given to a treating physician's opinion and must articulate any reasons for discounting the opinion. Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987).
On June 29, 2011, Dr. Oneil Culver completed a physical capacity evaluation and a clinical assessment of pain assessing Robinson's impairments. (R. 706-707). Dr. Culver is not an orthopaedic surgeon, but is a general surgeon and endoscopist. (R. 364). According to Dr. Culver, Robinson's pain was severe enough to distract her from work; physical activity would greatly increase her pain; and side effects from her medication would cause severe limitations. (R. 706). He also opined that she could lift 10 pounds occasionally and 5 pounds frequently, sit for two hours in a work day, stand or walk for three hours and she would be absent from work more than four days per month. (R. 707). It does not appear that Dr. Culver examined Robinson on the date he completed the evaluation and pain assessment. (R. 732). Previously, Dr. Culver saw Robinson on January 23, 2006, February 5, 2007, August 6, 2007, and June 22, 2011. (R. 363-65, 732). Robinson completed a patient history and registration form on January 23, 2006. (R. 364-65). There is no indication on those records of the reason for Robinson's visit. On February 5, 2007, Robinson was seen by Dr. Culver for complaints of low back pain, numbness and pinching sensation in her left hand. (R. 363). Dr. Culver's treatment note does not reflect an evaluation, diagnosis or course of treatment. (Id.) On June 22, 2011, Robinson complained of lower back pain and left arm pain.
Almost a year after the expiration of her insured status, on December 6, 2011, Dr. Culver wrote a letter in support of Robinson's claim for disability benefits.
(R. 733).
After reviewing the medical evidence, the ALJ declined to afford Dr. Culver's opinion "controlling weight" because
(R. 20). The ALJ found Dr. Culver's opinion to "be less than fully credible, assigns little weight, and otherwise finds it not to be persuasive." (R. 21). The ALJ then addressed Dr. Culver's December 2011 letter.
(Id.)
The ALJ acknowledged that Robinson suffers from some pain, but after a thorough review of her treatment records, discounted her credibility and Dr. Culver's assessment. (R. 20-24). The ALJ's decision to discount Dr. Culver's assessment is supported by substantial evidence. Although Robinson testified that her most disabling impairment is pain in her lower back and left arm,
Dr. Culver's assessment of Robinson was based on four office visits over a five (5) year period. (R. 732, 363-65). There is no indication of Dr. Culver's treatment of these conditions, and no indication that Dr. Culver reviewed any x-rays or MRI scans to corroborate the severity of Robinson's limitations.
In addition, the other medical evidence of record supports the ALJ's decision to discount Dr. Culver's opinion. Dr. William King performed physical examinations of Robinson on December 8, 2009, and August 2, 2011.
(Id.)
Dr. King opined that Robinson could do work related activities including sitting, walking, standing and lifting. (Id.) He concluded his report by saying "based on her exam I can really see no etiology of her claim of pain." (Id.)
Dr. King performed a second evaluation on August 2, 2011, outside the insured period. (R. 723-25). He also completed a medical source statement of ability to perform work-related activities. (R. 716-22). At the second examination, Robinson presented in no distress and she had a full range of motion in her neck. (R. 724). Tinel sign was negative in both hands. (Id.) She had 5/5 bilateral grip strength and her elbows, shoulders and wrists were all normal. (Id.) Dr. King suggested that Robinson was "not giving much effort in doing range of motion on her back." (R. 725). "Straight leg raises illicit no pain in sitting or supine positions." (Id.) Her gait was normal as was her heel to toe walking. (Id.) Dr. King described her examination as unremarkable. (Id.) He opined that
(Id.)
On August 6, 2007, Robinson presented to Southeast Pain Management Center complaining of lower back pain, neck pain and left arm pain. (R. 672). The severity of her pain was described as mild. (Id.) On August 14, 2007, Robinson underwent a facet/median block injection. (R. 684). She was exhibiting "[n]o pain behaviors. Facial appearance is relaxed." (Id.) Her mobility and range of motion was within normal limits and she had "mild generalized tenderness." (R. 684, 686).
Robinson presented to Dr. Rajesh Patel on November 11, 2009, complaining of indigestion, hypertension and elbow pain which she attributed to a diagnosis of fibromyalgia. (R. 480-84, 513-17). Dr. Patel noted no swelling, redness or tenderness of her elbow. She had normal flexion and extension. (Id.). Her back was normal. (R. 482). On December 9, 2009, Dr. Patel noted that Robinson's back was normal. (R. 459).
On March 9, 2010, Robinson complained to Dr. Patel of acid reflux and heartburn, left elbow and arm pain, and to follow up on her hypertension. (R. 473). There was no swelling, redness, or tenderness of her left elbow. (R. 475). Her range of motion was normal. (Id.) Her back was normal. (Id.) Dr. Patel diagnosed Robinson with GERD (gastroesophageal reflux disease), fibromyalgia
On July 27, 2010, Robinson complained to Dr. Patel of fibromyalgia and left ear pain. (R. 549-551). Dr. Patel noted that Robinson was a college student and she exercised by cycling and using a treadmill. (R. 550). At that time, she was diagnosed with a headache and an ear infection. (R. 551). On October 8, 2010, Robinson presented to Dr. Patel for a follow-up for her hypertension and heartburn. (R. 558).
On January 11, 2011, Robinson complained of coughing and anxiety attacks. (R. 575-79). She did not complain of lower back pain. (Id.) On April 7, 2011, she returned to Dr. Patel for a follow-up visit. (R. 582-87). At that time, her right elbow was tender but there was no swelling. (R. 584). In addition, she denied side effects from her medications, sleep disturbances or shoulder pain. (R. 582).
The medical evidence in the record contradicts Dr. Culver's assessment of the severity of Robinson's impairments. The ALJ may disregard the opinion of a physician, provided that she states with particularity reasons therefor. Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987). The ALJ examined and evaluated the treatment records for evidence supporting Dr. Culver's assessment of Robinson's ability to work, and she considered Robinson's own testimony. Only then did the ALJ discount Dr. Culver's assessment of Robinson's abilities. "Even though Social Security courts are inquisitorial, not adversarial, in nature, claimants must establish that they are eligible for benefits." Ingram v. Comm'r of Soc. Sec., 496 F.3d 1235, 1269 (11th Cir. 2007) (citing Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001)). See also Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988). This the plaintiff has failed to do. Based upon its review of the ALJ's decision and the objective medical evidence of record, the court concludes that the ALJ properly rejected Dr. Culver's opinion regarding the limitations caused by Robinson's back and left arm pain.
(R. 433)
Robinson argues that the ALJ's residual functional capacity ("RFC") assessment is not supported by substantial evidence because "the ALJ offers no facts to support her contention that Ms. Robinson is less limited than Dr. Ghostley indicated." (Doc. # 12 at 13-14). The ALJ concluded that the plaintiff had the residual functional capacity to perform sedentary work with some limitations. Specifically, the ALJ limited Robinson to "simple, routine tasks that would not require more than occasional independent decision making or changes in the work setting . . . [Robinson] could also experience deficits in concentration, persistence or pace, which cause her to be off task or at a non-productive pace for approximately five percent of the workday." (R. 17).
An ALJ is required to independently assess a claimant's residual functional capacity "based upon all of the relevant evidence." 20 CFR § 404.1545(a)(3) ("We will assess your residual functional capacity based on all of the relevant medical and other evidence."); 20 C.F.R. § 404.1546(c) ("Responsibility for assessing residual functional capacity at the administrative law judge hearing . . . level. If your case is at the administrative law judge hearing level . . ., the administrative law judge . . . is responsible for assessing your residual functional capacity.") See also Lewis, 125 F.3d at 1440 ("The residual functional capacity is an assessment, based upon all of the relevant evidence, of a claimant's remaining ability to do work despite [her] impairments."). "Residual functional capacity, or RFC, is a medical assessment of what the claimant can do in a work setting despite any mental, physical or environmental limitations caused by the claimant's impairments and related symptoms. 20 C.F.R. § 416.945(a)." Peeler v. Astrue, 400 Fed. Appx. 492, 494 n.2 (11th Cir. 2010). The ALJ stated that she
(R. at 17) (footnotes added).
The ALJ specifically considered Dr. Ghostley's opinion and discounted that aspect related to Robinson's marked limitation.
(R. 19-20).
Substantial evidence supports the ALJ's RFC determination. Dr. Ghostley's conclusory opinion is not substantiated by any notes in his evaluation. Moreover, Robinson testified that during the insured period of disability, she attended college taking three classes each semester. (R. 48, 62-63). She testified that she has had no mental health treatment or counseling. (R. 79). Although Robinson is prescribed Cymbalta by Dr. Patel, she has not sought any psychological treatment. In addition, Robinson testified that she is "better in school because [she] was around people." (R. 78).
Although Robinson also complains that the ALJ's RFC is contrary Dr. Ghostley's opinion about her mental limitations, the ALJ was not required to accept Dr. Ghostley's opinion about her marked impairment in forming Robinson's RFC. The ALJ evaluated the evidence before her which led her to conclude that the plaintiff can perform sedentary work with limitations. It is not the province of this court to reweigh evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Instead the court reviews the record to determine if the decision reached is supported by substantial evidence. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). The court has independently considered the record as a whole and finds that the record provides substantial support for the ALJ's conclusions. Consequently, the court concludes there was sufficient medical evidence before the ALJ from which she properly could made a residual functional capacity assessment.
Robinson accuses the ALJ of substituting her opinion on her mental limitations by improperly relying on the opinion of a non-examining physician, and she should have given more weight to Dr. Ghostley's opinion. The ALJ accorded significant weight to the opinion of the non-examining physician but gave Robinson the benefit of the doubt and found her to have "moderate functional limitation in restriction of activities of daily living." (R. 20). An ALJ is entitled to rely on the opinion of a non-examining reviewing physician whose opinion is supported by the record. See Sharfarz, 825 F.2d at 280 ("The opinions of non-examining, reviewing physicians, . . . when contrary to those of examining physicians, are entitled to little weight in a disability case, and standing alone do not constitute substantial evidence." (emphasis added.)). See also Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir.1990) (holding that an ALJ may rely on the assessment of a non-examining doctor whose opinion is based on careful evaluation of the medical evidence, is not the sole medical evidence upon which the ALJ relies, and is supported by or does not contradict the opinion of the examining doctor). In this case, the ALJ did not abandon her task of assessing Robinson's residual functional capacity to the non-examining state agency physician, but, as required by 20 C.F.R. § 404.1546(c), the ALJ independently assessed Robinson's residual functional capacity based on all of the evidence in the record. See Lewis, supra. While the ALJ has the responsibility to make a determination of plaintiff's RFC, it is plaintiff who bears the burden of proving her RFC, i.e., she must establish through evidence that her impairments result in functional limitations and that she is "disabled" under the Social Security Act. See 20 C.F.R. § 404.1512 (instructing claimant that the ALJ will consider "only impairment(s) you say you have or about which we receive evidence" and "[y]ou must provide medical evidence showing that you have an impairment(s) and how severe it is during the time you say that you are disabled"). See also Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (it is claimant's burden to prove RFC, and ALJ's responsibility to determine RFC based on medical records, observations of treating physicians and others, and claimant's description of limitations). The ALJ had before her sufficient medical evidence from which she could make a reasoned determination of Robinson's residual functional capacity.
Pursuant to the substantial evidence standard, this court's review is a limited one; the entire record must be scrutinized to determine the reasonableness of the ALJ's factual findings. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). Given this standard of review, the court finds that the ALJ's decision was supported by substantial evidence.
The court has carefully and independently reviewed the record, and concludes that the decision of the Commissioner is supported by substantial evidence.
A separate order will be entered affirming the Commissioner's decision.
On July 14, 2011, Robinson underwent x-rays of her wrists, cervical spine, and lumbar spine. (R. 708-711). The x-rays of her wrists were negative. (R. 708). The x-ray of her cervical spine revealed mild degenerative disc disease at C3-4 and C4-5. (R. 709). The x-ray of her lumbar spine was "essentially negative." (R. 710).
(Id.).
The ALJ considered this medical evidence in determining Robinson's residual functional capacity. (R. 22-23).
There is no indication in Dr. Patel's treatment records that he examined Robinson for tender or trigger points to substantiate a diagnosis of fibromyalgia.
