CHARLES A. STAMPELOS, Magistrate Judge.
This is a Social Security case referred to the undersigned United States Magistrate Judge upon consent of the parties and referral by United States District Judge Robert L. Hinkle. Docs. 6 and 7. See Fed. R. Civ. P. 73; 28 U.S.C. § 636(c). The Commissioner has filed a transcript of the underlying administrative proceeding and evidentiary record (hereinafter referred to as "R." followed by the appropriate page number). After careful consideration of the entire record, the undersigned finds substantial evidence supports the decision of the Administrative Law Judge (ALJ). Therefore, the Decision of the Commissioner is affirmed.
On September 12, 2006, Plaintiff Sandra M. McWhorter filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging disability beginning November 15, 2001, due to vulva cancer, cyst, and neuropathy. R. 17, 69, 131-35, 156. Plaintiff's application was denied initially on September 27, 2006, and upon reconsideration on March 7, 2007. R. 69-75.
On April 23, 2007, Plaintiff filed a request for hearing. On February 10, 2009, Plaintiff appeared and testified at a hearing conducted by ALJ Stephen C. Calvarese. R. 23-66. Robert N. Strader, an impartial vocational expert, testified during the hearing. R. 63-64. Plaintiff was represented by David Sullivan, an attorney. R. 17, 23.
On April 6, 2009, the ALJ issued a Decision denying Plaintiff's application for benefits. R. 17-22. Plaintiff filed a request for review and submitted a memorandum in support. On June 23, 2011, the Appeals Council denied Plaintiff's request for review. Id. at 1-6. This appeal followed, in which Plaintiff is proceeding pro se. Id. at 11-13. The parties filed memoranda of law, Docs. 14 and 17, which have been considered along with the record.
In the written Decision, the ALJ indicated the issue in this case is whether Plaintiff is disabled under sections 216(I) and 223(d) of the Social Security Act. R. 17. The ALJ explained that "disability" is defined as "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months." Id. After considering all the evidence, the ALJ concluded Plaintiff "was not under a disability within the meaning of the Social Security Act from November 15, 2001 through the date last insured." Id.
In particular, the ALJ set forth the five-step sequential evaluation used for determining whether an individual is disabled under the Social Security Act: whether the plaintiff (1) is currently employed; (2) has a severe impairment; (3) has an impairment or combination of impairments that meets or medically equals one listed in the applicable regulations; (4) can perform past relevant work; and (5) retains the ability to perform any work in the national economy. R. 19. See 20 C.F.R. § 404.1520(a)(4)(i)-(v); see also, e.g.,
In her pro se appeal, Plaintiff asserts the evidence does not support the decision of the Social Security Administration (SSA). Docs. 1 and 14. In particular, Plaintiff raises three arguments: (1) the Social Security Administration failed to provide the correct date last insured, December 31, 2002; (2) the ALJ failed to give appropriate weight to the opinion of the treating physician, Dr. Robert Ashmore; and (3) the ALJ erred in finding Plaintiff's allegations of disability not credible. Doc. 14 at 1.
In response, Defendant asserts that substantial record evidence supports the ALJ's decision. Doc. 17 at 2. Regarding Plaintiff's first argument, Defendant indicates the ALJ used an incorrect date last insured in the order — December 31, 2002 — because all parties consistently indicated in the documentation and at the hearing that the correct date was December 31, 2001; thus, the ALJ's use of December 31, 2002, in the order was "a decision-writing error." Id. at 8. As to Plaintiff's second argument, Defendant asserts the ALJ properly rejected Dr. Ashmore's opinion, finding it unsupported by his treatment notes. Id. at 13. Finally, as to Plaintiff's third argument, Defendant asserts the ALJ properly found Plaintiff's statements about her impairments and limitations not entirely credible. Id. at 11-12.
This court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles.
"A `substantial evidence' standard, however, does not permit a court to uphold the [Commissioner]'s decision by referring only to those parts of the record which support the ALJ."
Plaintiff first argues the Social Security Administration failed to provide a correct date last insured. Doc. 14 at 1, 3-4. Plaintiff asserts that an incorrect date, December 31, 2011, was used by all concerned, from the initial claim through the hearing; however, "[t]he date was corrected, at some time, by someone, and (only) correctly stated in the ALJ decision letter as being `December 31, 2002.'" Id. at 3. Plaintiff asserts, "No one, including the ALJ, ever explained how/why/when this change was made." Id. Plaintiff argues the error was exacerbated because relevant evidence was excluded based on the incorrect date of December 31, 2001. Id.
Although Plaintiff correctly points out the ALJ used December 31, 2002, as the date of last insured in his decision, that date appears incorrect. Indeed, as Plaintiff also correctly points out, all parties used and cited December 31, 2001, as the date of last insured, from the initial claim through the hearing. See R. 69-72, 144-49. Plaintiff's attorney references December 31, 2001, as the date of last insured in prepared documents and at the hearing. See R. 26, 97. Nothing indicates that date is incorrect. Therefore, the ALJ's use of December 31, 2002, rather than December 31, 2001, in his decision appears to be a scrivener's error. Further, any error is harmless because the ALJ evidently used a larger time period yet still found no severe impairment. As explained below, substantial record evidence supports the ALJ's determination of no severe impairment.
Plaintiff next argues the ALJ failed to give appropriate weight to the opinion of her treating physician, Dr. Robert Ashmore. Doc. 14 at 1, 5-6. Plaintiff argues Dr. Ashmore's opinion is the only medical opinion in the record and, therefore, there is no contradictory medical evidence from other sources. Id. at 5. Plaintiff argues that based on the SSA's guidelines, in 20 C.F.R. § 404.1527, Dr. Ashmore's opinion should be given controlling weight. Id. The ALJ made the following findings regarding the medical evidence in this case:
R. 20-22 (emphasis added). The ALJ determined:
R. 22 (emphasis added). It is not clear what the ALJ meant by this last emphasized portion. As explained in detail below, the record indicates Plaintiff returned to Dr. Ashmore with some frequency following her December 2001 surgery, with less frequency in 2003, twice in 2004, and then with increasing frequency in 2005. The doctor's notes and medical records from these visits do not reflect any restrictions or limitations on Plaintiff's activities, however.
Plaintiff returned to Dr. Ashmore for a post-operative check on January 2, 2002, and she was worked in for an appointment on January 10, 2002. R. 285. It appears the doctor prescribed Toradol, a pain medication. Id. Other notes indicate Plaintiff complained of vulvar bleeding and swelling. Id.
At a follow-up on January 16, 2002, Plaintiff complained of vulvar swelling after walking. R. 284. Dr. Ashmore noted Plaintiff was healing well, but slowly, and recommended she return in two weeks. Id.
On January 30, 2002, Plaintiff returned for another post-operative check. R. 283. Nothing indicates she was taking pain medication. Id. Dr. Ashmore noted she was "healing well." Id. He recommended she return in six months for a colposcopy. Id.
On May 14, 2002, Plaintiff saw Dr. Ashmore and complained of vaginal pain, vulvar irritation, odor, and discharge of one week's duration. R. 282. Her current medications included Vioxx. Id. Dr. Ashmore prescribed an antifungal medication. Id. Plaintiff returned on May 22, 2002, again reporting vulvar irritation, and Dr. Ashmore noted some improvement but prescribed another antifungal medication. R. 281. Plaintiff was still taking Vioxx. Id.
On July 16, 2002, Dr. Ashmore performed a well-woman examination on Plaintiff, including a colposcopy of the vulva. R. 280. Nothing indicates Plaintiff was taking pain medication. Id.
On December 12, 2002, Plaintiff presented for a recheck of VIN III. R. 279. Dr. Ashmore performed a colposcopy and instructed Plaintiff to return in one week. Id. On December 16, 2002, Plaintiff called the doctor's office, complaining of bleeding and was advised that this was the result of a change in her hormone replacement medication. R. 279. Plaintiff also indicated she was having vaginal pain and was taking Advil. Id. Dr. Ashmore worked her in the next day, December 17, 2002, and Plaintiff was complaining of vaginal pain and cramping. R. 278. Dr. Ashmore noted she was "healing well" but having vaginal/bladder/pelvic pain. Id. He noted marked bladder tenderness and a Bartholin's cyst on the left side. Id. He prescribed an antibiotic and Toradol (for pain). Id.
It appears that Plaintiff did not return again to Dr. Ashmore until August 7, 2003, when she had her well-woman exam. R. 276. No complaints are noted and for current medications "see list." Id. Dr. Ashmore indicated Plaintiff should return in December, for a repeat colposcopy. Id.
Plaintiff returned to Dr. Ashmore on November 5, 2003, with complaints of vaginal pain and pain on her lower left side. R. 275. She rated her pain as a 5 out of 10, and she had been taking Tylenol and Advil. Id. Dr. Ashmore asked that she return in four weeks. Id.
On December 4, 2003, Plaintiff returned to Dr. Ashmore for a colposcopy with vinegar. R. 274. The doctor noted her history of VIN III and appears to have noted no problems. Id. Plaintiff was instructed to return in six months. Id.
Plaintiff returned to Dr. Ashmore for her six-month follow-up on June 4, 2004. R. 273. For current medications, the note indicates no change. Id. Plaintiff was instructed to return in six months. Id.
Plaintiff returned to Dr. Ashmore as instructed, on December 3, 2004, for a follow-up and repeat pap test. R. 272. Dr. Ashmore's notes appear to indicate no evidence of problems. Id. Plaintiff was directed to return in a year. Id. The cytology report from the test indicates, however, "low grade squamous intraepithelial lesion (LSIL) encompassing: HPV/mild dysplasia/cin 1." R. 306. Plaintiff was informed of these results on December 29, 2004, and also informed of the need to schedule an appointment for a coloposcopy. Id.
On January 6, 2005, Plaintiff returned to Dr. Ashmore for a vulva biopsy. R. 271. Dr. Ashmore performed the procedure and indicated she should return in two weeks. Id. On January 14, 2005, it appears Dr. Ashmore's office was working on a referral to a doctor at Shands Hospital in Gainesville. R. 270. On January 27, 2005, Plaintiff called and said she wanted to see Dr. Ashmore to give an update on her visit to Shands. Id.
Plaintiff returned to Dr. Ashmore on January 31, 2005. R. 269. She had been scheduled for a vulvar excision surgery on February 10, 2005, at Shands in Gainesville, and had questions and concerns. R. 268-69. On February 17, 2005, Plaintiff returned to Dr. Ashmore; she had the procedure as scheduled and was complaining of pain. R. 268. It appears he prescribed medication for a possible infection. Id. Plaintiff called Dr. Ashmore's office on February 22, 2005, complaining of itching and white discharge; the doctor's office called in a prescription and advised Plaintiff to call for an appointment if her condition did not improve. Id.
Plaintiff returned to Dr. Ashmore on May 9, 2005, for a three-month follow-up. R. 267. His notes indicate VIN III with "wide excision" an no tenderness or swelling and no lesion. Id. Plaintiff is instructed to return in three months. Id. Another note, dated May 15, 2005, states Plaintiff called and was having vaginal pain "still some healing from surgery"; it appears the doctor ordered a prescription or refill. Id.
On June 8, 2005, Plaintiff returned to Dr. Ashmore with complaints of vaginal pain and swelling. R. 266. Plaintiff indicated she had pain since her February 2005 surgery; her pain was noted as a six. Id. Dr. Ashmore noted no lesion on vulva. Id. On August 27, 2005, Plaintiff returned to Dr. Ashmore for a follow-up regarding her February 2005 vulvar wide excision. R. 265. Dr. Ashmore indicated she should return in four months. Id.
On December 15, 2005, Plaintiff returned to Dr. Ashmore for a four-month recheck. R. 264. Dr. Ashmore indicated she should return in six months. Id. On May 9, 2006, Plaintiff returned to Dr. Ashmore. R. 262. Her chief complaint was vaginal pain of two weeks' duration. Id.; see R. 259. Her medications were Lipitor, Celexa, Hydrochlorothiazide, and Detrol. R. 261-62. She also complained of abnormal vaginal discharge and pelvic and abdominal pain. R. 259. She reported her pain as a five and sharp. Id. No lesions were found on examination of her external genitalia. Id. Pap smears were done on her cervix and vulva. R. 260. She was prescribed Vibramycin and directed to return for a follow-up in six months. Id.
Plaintiff returned on May 25, 2006, and on June 2, 2006, for re-checks for vaginal pain. R. 258. No other notes are indicated. Id.
Plaintiff returned to Dr. Ashmore on June 29, 2006, complaining of vaginal pain. R. 257. The physician notes are not legible. Id.
Plaintiff returned to Dr. Ashmore on July 27, 2006. R. 256. The office notes indicate this was a follow-up visit for a Bartholin cyst excision "that has been slow to heal requiring multiple antibiotics and sitz baths." Id. The excision was performed on June 13, 2006, R. 210-11, 245; the pathology report indicates "[f]indings are compatible with an inflamed Bartholin cyst" and "[n]o malignancy is identified," R. 212. The July 27, 2006, office notes further indicate:
R. 256. The doctor prescribed Levaquin and Dilaudid and directed Plaintiff to return in one week. Id.
The next record indicates Plaintiff returned to Dr. Ashmore on August 3, 2006, for follow-up for vulvitis and vulvar pain. R. 255. The notes indicate the pain has gotten worse and has not responded to the Levaquin. Id. The doctor noted "redness of the entire vulvar area." Id. Dr. Ashmore admitted Plaintiff to the hospital for IV antibiotics and IV pain medication. Id.; see R. 214 (hospital admission notes: "Her lab work was unremarkable. Over the course of her hospitalization, she slowly improved, and at the time of discharge, she felt better."). Plaintiff was discharged from the hospital on August 8, 2006. R. 214.
On August 21, 2006, Plaintiff returned to the doctor's office for follow-up and saw a different physician, Dr. David Dixon. R. 253. The notes indicate Plaintiff now has "vulvodynia of unknown etiology." Id. Plaintiff reported that she is doing "ok, but still has significant pain/burning." Id. On exam, no epithelial lesions were seen. Id. The doctor directed her to follow-up with Dr. Ashmore in two months. R. 253-54. He also referred her to pain management for the chronic vulvodynia which he suspected was "neuropathic from her multiple surgeries." R. 254. He prescribed Diluadid. Id. Plaintiff returned to Dr. Ashmore's office on August 30, 2006. R. 252. She reported that her pain was improving. Id. On exam, the doctor noted "marked improvement" and "[t]he cellulitis has resolved." Id. "There is some tenderness over the Bartholin incision but all in all, much improvement." Id. The doctor added Neurontin, Elavil, and gave Plaintiff some Lortab instead of Dilaudid. Id. He directed her to return in two weeks or as needed. Id.
Plaintiff returned to Dr. Ashmore on December 7, 2006, for a follow-up and recheck of vulvar pain. R. 250. Plaintiff complained of increasing pain, now on the right side as well as the left. R. 251. The exam was "unremarkable." Id. The notes indicate Plaintiff "had been to pain management which did nothing more than increase her Elavil and Neurontin." Id. The doctor referred her to Gainesville for a second opinion regarding the chronic vulvar pain. Id.
Plaintiff returned to Dr. Ashmore on January 12, 2007, complaining of pelvic pain on the right side of three days' duration. R. 247, 248. She rated her pain as a seven and described it as "aching." R. 248. On exam, the doctor noted "redness and swelling" on the labia majora, but no lesion or mass. R. 249. He prescribed Cipro and sitz baths and directed her to return as needed. Id.
On January 31, 2007, Plaintiff saw Dr. Ashmore for a "disability consultation." R. 245. In response to a question asking if the patient is in pain, the answer is "no." Id. Under "past medical history," the notes indicate: "Reviewed history from 05/09/2006 and no changes required." Id. "Patient indicates history of Other Cancer, Depression, Hypertension, Thyroid Disease, Weight Disorder, Anesthetic Complications." Id. Under "past surgical history," the notes indicate: "Reviewed history from 07/14/2006 and no changes required." Id. "Tonsillectomy, Other Surgery, CO2 LASER OF VULVA 2003 (REA), VULVECTOMY 2005 SHANDS, Bartholin cyst excision 06/13/06." Id. The notes further indicate:
R. 244. Plaintiff is directed to follow-up as needed; no other notes are included. R. 244-46.
In February 2007, as found by the ALJ, Dr. Ashmore completed a two-page check-list titled Residual Functional Capacity (RFC) Questionnaire. R. 431-32. On this questionnaire, the doctor indicated Plaintiff could stand or walk one hour per normal work day; could not sit or lift anything during a normal work day; could use her hands for simple grasping, pushing and pulling, and fine manipulation; could not use her feet for repetitive movements as in operating foot controls; is able to bend frequently and reach above shoulder level; and cannot squat, crawl, or climb. R. 431. He checked "no" in response to the questions "Can the claimant sustain activity at a pace and with the attention to task as would be required in the competitive work place?" and "Can the claimant be expected to attend any employment on an eight (8) hour/5 days a week basis?" Id. at 431-32. In response to the question "Does the claimant have a non-exertional impairment which has a neurological, psychological, allergenic, respiratory, or environmental restriction associated with it or in which pain, fatigue or intelligence substantially restrict the claimant's ability to function?," the doctor checked "yes" and circled the words "neurological" and "pain." Id. at 432. In response to the question "Is it in your medical opinion that the claimant was disabled before 12/31/01?," the doctor wrote, "yes 12/18/01." Id. In the section titled "REMARKS (on above or other functional limitations to be considered in claimant's employment)," the doctor wrote, "unable to stand or sit due to chronic vulvar pain and chronic vulvar edema." Id. At the bottom of the page, filling in blanks in the line stating "PERIOD OF ABOVE STATED LIMITATIONS," the doctor wrote "12/18/01" to "present." Id. The form is signed by Dr. Ashmore and dated February 14, 2007. Id.
The opinion of a claimant's treating physician must be accorded considerable weight by the Commissioner unless good cause is shown to the contrary. See, e.g.,
Good cause for discounting the treating physician's report may be found "when it is not accompanied by objective medical evidence or is wholly conclusory."
In this case, the ALJ determined that a review of the medical records kept by Dr. Ashmore and his office during the relevant time period, beginning in November 2001, fail to document symptoms that support Dr. Ashmore's statements provided in the two-page RFC Questionnaire. See R. 22. This determination is supported by the record, summarized above, as no contemporaneous medical notes indicate any restrictions or limitations imposed on Plaintiff, particularly in November and December 2001 or for a twelve-month period thereafter. Although many medical records are included for the time period following 2002, none of those records indicate any restrictions or limitations related to Plaintiff's treatment in December 2001. Good cause thus exists for the ALJ's decision to discount Dr. Ashmore's opinions stated in the two-page RFC Questionnaire. See, e.g.,
In her final issue, Plaintiff argues the ALJ erred in finding she did not have a severe impairment and in finding her allegations of disability not credible. Doc. 14 at 1, 6-10. Plaintiff had to establish she was disabled prior to the expiration of her insured status on December 31, 2001. See 20 C.F.R. § 404.131;
A fair reading of Plaintiff's medical records, summarized above, indicates her treatment for VIN-III in December 2001 was successful and she was not disabled as of December 31, 2001, or for twelve months thereafter. See, e.g.,
To the extent Plaintiff asserts the ALJ erred in rejecting her testimony about her pain and limitations, the record supports the ALJ's determination. The credibility of the Plaintiff's testimony must also be considered in determining if the underlying medical condition is of a severity which can reasonably be expected to produce the alleged pain.
In this case, the ALJ made the following findings concerning Plaintiff's testimony:
R. 21. Again, a review of the contemporaneous medical records does not reflect the level of pain and limitations testified to by Plaintiff. When Plaintiff returned to Dr. Ashmore for a post-operative checks in January 2002, the doctor did prescribe a pain medication (Toradol); however, nothing indicates Plaintiff took this medication on a continuous basis for a twelve-month period. See R. 285. Similarly, although the medical records note that Plaintiff complained of vulvar bleeding and swelling after walking in January 2002, Dr. Ashmore also noted Plaintiff was healing well. See R. 283-84. After January 2002, Plaintiff did not return to Dr. Ashmore until May 2002; at this time, her medications included Vioxx. R. 282. Plaintiff returned to Dr. Ashmore in July 2002 for a well-woman examination; nothing indicates Plaintiff was taking pain medication or had any restrictions or limitations at this point. See R. 280. Plaintiff did not return to Dr. Ashmore again until December 2002 and appears to have experienced temporary problems following the colposcopy performed then as part of the VIN-III recheck. R. 277-79. After December 2003, however, Plaintiff did not return to Dr. Ashmore again until August 2003, for a well-woman exam. R. 276.
Substantial record evidence thus supports the ALJ's determination that "[t]here is simply insufficient evidence to support the level of limitation alleged by the claimant." R. 21. See, e.g.,
Considering the record as a whole, substantial evidence supports the findings of the ALJ and the ALJ correctly followed the law. Accordingly, pursuant to the fourth sentence in 42 U.S.C § 405(g), the decision of the Commissioner to deny Plaintiff's application for Social Security benefits is