# Chadwell v. Commissioner of Social Security

> District Court, M.D. Florida · March 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10104629

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- stating the court must scrutinize the entire record to determine the reasonableness of the Commissioner=s factual findings

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

CINDY LEE CHADWELL,

Plaintiff,

v. CASE NO. 3:18-cv-1205-J-MCR

COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

Defendant.
______________________________/

MEMORANDUM OPINION AND ORDER1

THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for a period of disability and disability insurance
benefits (“DIB”). Following an administrative hearing held on November 20,
2017, the assigned Administrative Law Judge (“ALJ”) issued a decision, finding
Plaintiff not disabled from February 26, 2015, the alleged disability onset date,
through December 1, 2017, the date of the ALJ’s decision.2 (Tr. 7-19, 29-48,
140.) Based on a review of the record, the briefs, and the applicable law, the
Commissioner’s decision is REVERSED and REMANDED.

1 The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 12.)

2 Plaintiff had to establish disability on or before December 31, 2020, her date
last insured, in order to be entitled to a period of disability and DIB. (Tr. 10.)
I. Standard of Review
The scope of this Court’s review is limited to determining whether the

Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and 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 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial
evidence, the district court will affirm, even if the reviewer would have reached a
contrary result as finder of fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th

Cir. 1991). The district court must view the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner=s factual findings).

II. Discussion
Plaintiff contends that the ALJ erred by failing to evaluate the opinion
evidence consistent with the regulations, Agency policy, and Eleventh Circuit
precedent. She points out that the opinions of her pain management doctor,
John Carey, M.D., are supported by the results of the Functional Capacity
Evaluation (“FCE”) and establish far greater limitations than assessed by the

ALJ. Specifically, the opinions of the treating and examining medical sources
indicate that Plaintiff would be able to perform only sedentary work, rather than
light work as the ALJ determined. Plaintiff explains that a restriction to sedentary
work, when considered in combination with her age, inability to perform her past
relevant work, and restriction to unskilled work, would unequivocally lead to a

finding of disability pursuant to the Medical-Vocational Guidelines (the Grids).
Plaintiff argues that the ALJ erred in failing to assign any weight to the
opinion of Renee K. Garrett, PA-C and in giving little weight to Dr. Carey’s
opinions and the results of the FCE, while according significant weight to the
opinions of the State agency non-examining medical consultant, P.S.
Krishnamurthy, M.D. Plaintiff asserts that the ALJ’s RFC assessment is not

supported by substantial evidence as the ALJ erroneously relied solely on Dr.
Krishnamurthy’s opinions, which predated a significant part of the medical
records, and the ALJ failed to consider the consistency among the opinions of
Plaintiff’s treating and examining sources. Plaintiff points out that the ALJ never
requested an updated review of the record by a State agency consultant and did

not arrange for a consultative examination of Plaintiff. Plaintiff further argues that
the ALJ’s credibility finding is contrary to the law and not supported by substantial
evidence in the record. Defendant responds that substantial evidence supports
the ALJ’s evaluation of the medical opinions of record and Plaintiff’s subjective
complaints.
A. Standard for Evaluating Opinion Evidence and Subjective
Symptoms

The ALJ is required to consider all the evidence in the record when making
a disability determination. See 20 C.F.R. § 404.1520(a)(3). With regard to
medical opinion evidence, “the ALJ must state with particularity the weight given
to different medical opinions and the reasons therefor.” Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Substantial weight must be
given to a treating physician’s opinion unless there is good cause to do
otherwise. See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).

“‘[G]ood 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.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
When a treating physician’s opinion does not warrant controlling weight, the ALJ
must nevertheless weigh the medical opinion based on: (1) the length of the

treatment relationship and the frequency of examination, (2) the nature and
extent of the treatment relationship, (3) the medical evidence supporting the
opinion, (4) consistency of the medical opinion with the record as a whole, (5)
specialization in the medical issues at issue, and (6) any other factors that tend
to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6).

Although a treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion, see Wilson v. Heckler, 734 F.2d 513, 518
(11th Cir. 1984) (per curiam), 20 C.F.R. § 404.1527(c)(2), “[t]he opinions of state

agency physicians” can outweigh the contrary opinion of a treating physician if
“that opinion has been properly discounted,” Cooper v. Astrue, No. 8:06-cv-1863-
T-27TGW, 2008 WL 649244, *3 (M.D. Fla. Mar. 10, 2008). Further, “the ALJ
may reject any medical opinion if the evidence supports a contrary finding.”
Wainwright v. Comm’r of Soc. Sec. Admin., No. 06-15638, 2007 WL 708971, *2

(11th Cir. Mar. 9, 2007) (per curiam); see also Sryock v. Heckler, 764 F.2d 834,
835 (11th Cir. 1985) (per curiam) (same).
“The ALJ is required to consider the opinions of non-examining state
agency medical and psychological consultants because they ‘are highly qualified
physicians and psychologists, who are also experts in Social Security disability
evaluation.’” Milner v. Barnhart, 275 F. App’x 947, 948 (11th Cir. 2008) (per

curiam); see also SSR 96-6p3 (stating that the ALJ must treat the findings of
State agency medical consultants as expert opinion evidence of non-examining
sources). While the ALJ is not bound by the findings of non-examining
physicians, the ALJ may not ignore these opinions and must explain the weight
given to them in his decision. SSR 96-6p.

When a claimant seeks to establish disability through her own testimony of

3 SSR 96-6p has been rescinded and replaced by SSR 17-2p effective March 27,
2017. However, because Plaintiff’s application predated March 27, 2017, SSR 96-6p
was still in effect on the date of the ALJ’s decision.
pain or other subjective symptoms, the Eleventh Circuit’s three-part “pain
standard” applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per

curiam). “If the ALJ decides not to credit such testimony, he must articulate
explicit and adequate reasons for doing so.” Id.
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from 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.

Id.
Once a claimant establishes that her pain is disabling through “objective
medical evidence from an acceptable medical source that shows . . . a medical
impairment(s) which could reasonably be expected to produce the pain or other
symptoms,” pursuant to 20 C.F.R. § 404.1529(a), “all evidence about the
intensity, persistence, and functionally limiting effects of pain or other symptoms
must be considered in addition to the medical signs and laboratory findings in
deciding the issue of disability,” Foote, 67 F.3d at 1561. See also SSR 16-3p4
(stating that after the ALJ finds a medically determinable impairment exists, the
ALJ must analyze “the intensity, persistence, and limiting effects of the
individual’s symptoms” to determine “the extent to which an individual’s
symptoms limit his or her ability to perform work-related activities”).

4 SSR 16-3p rescinded and superseded SSR 96-7p effective March 28, 2016,
eliminating the use of the term “credibility,” and clarifying that “subjective symptom
evaluation is not an examination of an individual=s character.” SSR 16-3p.
As stated in SSR 16-3p:
In considering the intensity, persistence, and limiting effects of an
individual’s symptoms, [the ALJ must] examine the entire case
record, including the objective medical evidence; an individual’s
statements about the intensity, persistence, and limiting effects of
symptoms; statements and other information provided by medical
sources and other persons; and any other relevant evidence in the
individual’s case record.
. . .
In evaluating an individual’s symptoms, it is not sufficient for our
adjudicators to make a single, conclusory statement that “the
individual’s statements about his or her symptoms have been
considered” or that “the statements about the individual’s symptoms
are (or are not) supported or consistent.” It is also not enough for
our adjudicators simply to recite the factors described in the
regulations for evaluating symptoms.5 The determination or
decision must contain specific reasons for the weight given to the
individual’s symptoms, be consistent with and supported by the
evidence, and be clearly articulated so the individual and any
subsequent reviewer can assess how the adjudicator evaluated the
individual’s symptoms.
. . .
In evaluating an individual’s symptoms, our adjudicators will not
assess an individual’s overall character or truthfulness in the manner
typically used during an adversarial court litigation. The focus of the
evaluation of an individual’s symptoms should not be to determine
whether he or she is a truthful person. Rather, our adjudicators will
focus on whether the evidence establishes a medically determinable
impairment that could reasonably be expected to produce the
individual’s symptoms and given the adjudicator’s evaluation of the
individual’s symptoms, whether the intensity and persistence of the
symptoms limit the individual’s ability to perform work-related

5 These factors include: (1) a claimant’s daily activities; (2) the location, duration,
frequency, and intensity of the claimant’s pain or other symptoms; (3) any precipitating
and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any
medication taken to alleviate the claimant’s pain or other symptoms; (5) any treatment,
other than medication, received by the claimant to relieve the pain or other symptoms;
(6) any measures (other than treatment) used to relieve the pain or other symptoms
(e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping
on a board); and (7) any other factors concerning the claimant’s functional limitations
and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); SSR 16-
3p.
activities[.]

SSR 16-3p.
“[A]n individual’s attempts to seek medical treatment for symptoms and to
follow treatment once it is prescribed” will also be considered “when evaluating
whether symptom intensity and persistence affect the ability to perform work-
related activities.” Id. “[I]f the frequency or extent of the treatment sought by an
individual is not comparable with the degree of the individual’s subjective

complaints, or if the individual fails to follow prescribed treatment that might
improve symptoms, [the adjudicator] may find the alleged intensity and
persistence of an individual’s symptoms are inconsistent with the overall
evidence of record.” Id. However, the adjudicator “will not find an individual’s
symptoms inconsistent with the evidence in the record on this basis without
considering possible reasons he or she may not comply with treatment or seek

treatment consistent with the degree of his or her complaints.” Id. In considering
an individual’s treatment history, the adjudicator may consider, inter alia, one or
more of the following:
• That the individual may have structured his or her activities to
minimize symptoms to a tolerable level by avoiding physical
activities or mental stressors that aggravate his or her stressors;
• That the individual may receive periodic treatment or
evaluation for refills of medications because his or her symptoms
have reached a plateau;
• That the individual may not agree to take prescription
medications because the side effects are less tolerable than the
symptoms;
• That the individual may not be able to afford treatment and
may not have access to free or low-cost medical services;
• That a medical source may have advised the individual that
there is no further effective treatment to prescribe or recommend
that would benefit the individual;
• That due to various limitations (such as language or mental
limitations), the individual may not understand the appropriate
treatment for or the need for consistent treatment.

Id.
B. Relevant Evidence of Record
1. MRI Results
On March 13, 2015, Plaintiff underwent an MRI of the lumbar spine with
and without contrast, which showed, in relevant part:
L4‒5: Disc bulging slightly asymmetric to the left. Moderate facet
arthropathy with bilateral joint effusions. No significant edema. Mild
effacement of thecal sac specially left lateral recess with posterior
deviation of the passing left of 5 nerve. Mild to moderate left and
mild right foraminal stenosis.

L5‒1: Mild facet arthropathy. Disc desiccation but no significant
bulging or herniation.

. . .
Incidental note is made of subcutaneous sebaceous cyst to the left
of the midline at the level of L3.

(Tr. 201.) The impression was:
1. L4‒5 mild spinal stenosis with left lateral recess stenosis and
mild displacement of the passing left L5 nerve. Correlate for left L5
radiculopathy. Mild to moderate left and mild right foraminal stenosis
at this level mostly due to facet arthropathy but also asymmetric disc
bulging.

2. Mild facet arthropathy L5-1 with early signs of disc
degeneration but no bulging or herniation.

(Tr. 202; see also Tr. 367 (noting “disc dessication [at] L4-S1, disc bulging,
moderate arthropathy, mild effacement of thecal sac, bilat[eral] foraminal
stenosis, [and] L5 nerve displacement”).)

On July 18, 2017, Plaintiff underwent another MRI of the lumbar spine
without contrast, which showed, in relevant part:
L3-L4: 2 mm retrolisthesis. 1 mm broad-based disc protrusion.
Minimal AP canal stenosis. Mild bilateral facet arthrosis. No
significant foraminal stenosis.

L4-L5: 1-2 mm anterolisthesis. 2-3 mm broad-based disc protrusion.
Mild ligamentous hypertrophy. Moderate circumferential canal
stenosis. Mild-to-moderate bilateral foraminal stenosis. Probable
contact with the bilateral L4-L5 exiting nerve roots. Moderate to
marked bilateral facet arthrosis. Bilateral facet joint effusions.
Findings are worsened.

L5-S1: 1 mm broad-based disc protrusion. No significant canal
stenosis. Mild bilateral facet arthrosis. Mild bilateral foraminal
stenosis.

(Tr. 370.) The impression was:
1. Degenerative change and broad-based disc protrusion at L4-
L5, with associated canal stenosis and foraminal stenosis. Bilateral
facet effusions. Findings are worsened compared to prior study.

2. 19 x 15 mm (previously 15 x 8 mm) well-circumscribed T1
hypointense and complex T2 hyperintense lesion in the left
paraspinous subcutaneous soft tissues of the L2-L3 level. Finding
likely represents a sebaceous cyst[,] however, clinical correlation
advised. Given interval increase in size, contrasted MRI would be
helpful for further evaluation and confirmation.

(Tr. 371.)
2. Dr. Carey and the FCE
Plaintiff saw Dr. Carey with the Jacksonville Spine Center almost monthly
since June 27, 2011 and even more regularly during the period under review.
(See Tr. 156, 367.) On March 6, 2015, Dr. Carey opined that Plaintiff should be
off work for twelve weeks due to exacerbation of her lower back pain and the

results of her lumbar MRI showing herniated nucleus pulposus/stenosis. (Tr.
156-57.) His restrictions included no heavy lifting, overhead work, bending, or
prolonged sitting/standing. (Tr. 157.) On July 30, 2015, he completed a Work
Status Form, limiting Plaintiff to “no-work” until her next appointment on
September 4, 2015. (Tr. 193.) He noted the following additional restrictions: no

sitting for longer than two hours and no bending, climbing, stooping, pushing,
pulling, overhead work, or heavy machinery. (Id.)
On April 11, 2016, Dr. Carey completed a Physical Medical Source
Statement (“MSS”). (Tr. 367-69.) Plaintiff’s symptoms included: back stiffness;
decreased range of motion; lower extremity tingling, burning, and intermittent
numbness; fatigue; depression; intermittent upper back and neck stiffness and

pain. (Tr. 367.) Plaintiff’s diagnoses included: lumbar facet arthropathy, chronic
radicular lower back pain, lumbago, lumbar disc displacement and myelopathy,
thoracic spine pain, lumbar stenosis, cervical disc herniation, muscle spasm,
chronic pain syndrome, depression, and insomnia. (Id.) Plaintiff’s prognosis
was fair due to the chronicity of her condition. (Id.)

In the MSS, Dr. Carey opined that Plaintiff’s pain or other symptoms were
severe enough to frequently interfere with the attention and concentration
needed to perform even simple work tasks. (Id.) He also opined that Plaintiff
could walk only 25‒50 feet without rest, stand for 30 minutes at one time, and sit
for 45 minutes at one time; she could sit less than two hours and stand/walk less
than two hours total in an eight-hour workday; she would need hourly

unscheduled breaks lasting 15 minutes on average; with prolonged sitting, her
legs would need to be elevated mid to knee level, intermittently; she would need
to lie down at unscheduled times for up to an hour in an eight-hour workday; she
could lift and carry less than ten pounds occasionally and ten pounds rarely; her
impairments were likely to produce good days and bad days; and she would

likely be absent from work as a result of her impairments or treatment three to
four days per month. (Tr. 368-69.)
On July 21, 2017, on Dr. Carey’s referral, an FCE of Plaintiff’s ability to
return to work was performed at CORA Rehabilitation.6 (Tr. 377-96.) It was
noted that Plaintiff “demonstrated consistent and maximal effort during the
evaluation.” (Tr. 380; see also Tr. 377, 382.) Plaintiff’s score on the Oswestry

Disability Index (“ODI”) was 60%, which equated to “severe disability.” (Tr. 386
(“Severe Disability, as defined by the ODI: Pain remains the main problem in this
group of patients, but travel, personal care, social life, sexual activity and sleep
are also affected.”).) Plaintiff’s demonstrated tolerance for sitting and standing
was 60 minutes. (Tr. 393; see also Tr. 377 (“She demonstrated improved

tolerance with sitting and standing when she had the ability to weight shift rather
than perform statically.”).) The FCE concluded that Plaintiff should avoid lifting or

6 The FCE was signed by Mike Ligmanowski, PTA, ATC, CEASI, CWcHP and
Laura Bunso, PT, MTC.
carrying greater than fifteen pounds, sitting more than occasionally, and
repetitive or prolonged bending; and she would need to take unscheduled breaks

and change her position at-will throughout the day. (Tr. 377.)
On October 13, 2017, the evaluators submitted a letter clarifying the
results of the FCE as follows:
During the evaluation, Ms. Chadwell was tested in several
positions including standing and she demonstrated an increased
tolerance to standing when performing weight shifting for a total
duration of 60 minutes with up to 15 minutes at a given time. As for
sitting, she demonstrated ability to sit for a duration of 60 minutes
during [the] evaluation but needed to change position (from sit to
stand) after 10 minutes.

In regards to the ability to change position “at-will,” this means
there should be no limitation on Ms. Chadwell in regards to changing
position. It would not have a time requirement rather she [should]
have the ability to change [her] position at any given time. “At-will”
would also imply position changes including sit/stand/walk/lying [sic]
down, etc. This would also correlate to her ability to have
“unscheduled breaks.” Due to her inability to sit or stand for greater
than 15 minutes at a time, she would need the ability to take
unscheduled breaks in accordance [with] her pain tolerance. It
would be difficult at this time to determine her exact needs,
therefore[,] breaks would be difficult to schedule in regards to the
nature of her work. Based on her limited abilities in sitting/standing,
this may require Ms. Chadwell to lie in a supine or side-lying
position[,] or stretch[,] along with walking[,] while on this
unscheduled break.

(Tr. 528.)
Upon review of the FCE and the clarification thereto, in November of 2017,
Dr. Carey (together with PA-C Garrett) completed a Physical RFC Assessment of
Plaintiff. (See Tr. 550-66.) The Physical RFC Assessment provided that Plaintiff
could lift and/or carry twenty pounds occasionally and ten pounds frequently; sit
less than six hours and stand and/or walk less than two hours in an eight-hour
workday; occasionally crouch and climb ramps or stairs; never climb ladders,

ropes, or scaffolds, balance, stoop, kneel, or crawl; and limited Plaintiff’s
reaching in all directions, including overhead. (Tr. 560-62.) The results of the
FCE were cited throughout, including in part two of the Physical RFC
Assessment, which stated:
The FCE dated 7/21/2017 notes . . . that Ms. Chadwell has a “high
pain focus and this was evident throughout the evaluation . . .
[however], based on sincerity of effort testing and physiological
responses throughout, it appears she was providing maximal efforts
within her pain threshold.”

Essentially, from the above statement, one can infer that although
“pain” is a subjective complaint, Ms. Chadwell performed throughout
the examination with good effort and sincerity, as best she was
capable of. She was observed for quite some time with multiple
types of testing to assess function and ability. Thus, the limitations
assessed are valid.

(Tr. 564.)
3. Dr. Krishnamurthy
On December 10, 2015, based on a review of the records available as of
that date, the State agency non-examining consultant, Dr. Krishnamurthy,
completed a Physical RFC Assessment of Plaintiff’s abilities. (Tr. 64-66.) Dr.
Krishnamurthy opined that Plaintiff could lift and/or carry twenty pounds
occasionally and ten pounds frequently; could sit for about six hours and stand
and/or walk for about six hours in an eight-hour workday; could frequently climb
ramps or stairs, stoop, kneel, crouch, and crawl; could occasionally climb
ladders, ropes, or scaffolds; and should avoid concentrated exposure to hazards.
(Tr. 64-65.)

C. The ALJ’s Decision
The ALJ found that Plaintiff’s degenerative disc disease of the lumbar and
cervical spine was a severe impairment at step two of the sequential evaluation
process.7 (Tr. 12.) Further, the ALJ found that Plaintiff had the residual
functional capacity (“RFC”) to perform light work8 with the following limitations:

The claimant can lift and carry 15 pounds occasionally and 10
pounds frequently. The claimant must be allowed to alternate
position between sitting and stand[ing] at least every 30 minutes.
The claimant can balance, stoop, and climb ramps and stairs no
more than occasionally. The claimant can never crouch, crawl,
kneel, or climb ladders, ropes, or scaffolds. The claimant can reach
overhead no more than occasionally. The claimant must not have
concentrated exposure to vibrations. The claimant is limited to the
performance of simple tasks with little variation that take a short
period of time to learn (up to and including 30 days), and that have a
Specific Vocational Preparation (SVP) level of 1 or 2. The claimant
is able to deal with the changes in a routine work setting.

(Tr. 13.)
In making this finding, the ALJ discussed, inter alia, Plaintiff’s subjective
complaints, the objective medical findings, the treatment records, and the opinion
evidence. (Tr. 13-17.) After considering Plaintiff’s complaints, the ALJ found that

7 The Commissioner employs a five-step process in determining disability. See
20 C.F.R. § 404.1520(a)(4).

8 By definition, light work involves lifting no more than twenty pounds at a time
with frequent lifting or carrying of objects weighing up to ten pounds; it requires a good
deal of walking or standing, or sitting most of the time with some pushing and pulling of
arm or leg controls. 20 C.F.R. § 404.1567(b); SSR 83-10.
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of
her symptoms were Anot entirely consistent with the medical evidence and other
evidence in the record.@ (Tr. 14.) The ALJ then considered Plaintiff’s

examination findings, results from objective diagnostic tests, and medical opinion
evidence. (Tr. 14-17.)
Upon review of the medical evidence, the ALJ found the evidence did not
establish that Plaintiff’s impairments were disabling in nature or prevented her

from performing work in accordance with the RFC assessment. (Tr. 16.) The
ALJ explained:
The evidence primarily shows some tenderness and limitation of
motion in her lower back and legs, but does not establish that these
conditions prevent her from performing all work. Other spinal and
musculoskeletal findings are largely normal. The evidence does not
establish that she experiences symptoms which are typically
associated with a disabling level of severity, such as significant
limitation of motion, positive straight leg raise testing, nerve root
compromise, and/or an altered gait. She is not shown to require an
assistive device to ambulate, and she is also not shown to have
strength or sensation deficits. Diagnostic imaging has also not
demonstrated the presence of a condition which would be expected
to preclude her from performing all work. Taken as a whole, her
impairments are not shown to be productive [sic] of a level of
functional limitation that precludes the performance of all basic work
activities, as is required for a finding of disability.

Further, . . . the claimant testified at the hearing that she remains
capable of performing a variety of activities, including doing some
household chores[,] such as dishes, laundry, cooking, and grocery
shopping. She is able to drive, and she is capable of bathing and
dressing herself independently. Such abilities and activities are
consistent with an ability to perform competitive work.

(Id.)
Additionally, the ALJ found that “the credible medical opinions of record”
did not suggest that Plaintiff was disabled or incapable of performing work

consistent with the RFC assessment. (Id.) The ALJ stated:
The opinions of Dr. Carey are given little weight, as they are not
consistent with his treatment notations or the other medical evidence
of record. Some weight is given to his opinion provided in November
2017, but it is not fully consistent with his treatment notations and
the rest of the medical evidence of record. Little weight is also given
to the functional capacity evaluation performed in July 2017, as it is
not consistent with the medical evidence of record as a whole.
Significant weight is given to Dr. Krishnamurthy’s opinion, as it is
more consistent with the other objective medical evidence of record
and the limited findings on medical examinations. The limitations
that are supported by the evidence have been taken into account in
the [RFC] assessment, which provides for light exertional work with
a sit/stand option and includes restrictions for postural activities,
manipulative activities, and environmental conditions, and also limits
the type of work the claimant is to perform.

(Tr. 16-17.) After considering the combined effect of Plaintiff’s impairments, the
ALJ concluded that the RFC assessment was “supported by the objective
medical evidence, including [Plaintiff’s] treatment records and the credible
medical opinions of record.” (Tr. 17.)
Then, at step four, the ALJ determined that Plaintiff was unable to perform
any past relevant work. (Id.) At step five, after considering Plaintiff’s age,
education, work experience, and RFC, as well as the testimony of the vocational
expert (“VE”), the ALJ determined that there were jobs existing in significant
numbers in the national economy that Plaintiff could perform, such as the jobs of
office helper, ticket seller, and counter clerk. (Tr. 18.) As noted in the ALJ’s
decision, all of these representative occupations are light duty, unskilled jobs with
an SVP of 2. (Id.)
D. Analysis

The Court agrees with Plaintiff that the ALJ’s RFC assessment is not
supported by substantial evidence. First, the ALJ improperly evaluated the
opinion evidence. The ALJ gave significant weight to Dr. Krishnamurthy’s non-
examining opinion because it was “more consistent with the other objective
medical evidence of record and the limited findings on medical examinations.”

(Tr. 17.) However, in December of 2015 when Dr. Krishnamurthy issued his
opinion solely based on a review of an incomplete record, he did not have the
benefit of reviewing, inter alia: (1) the results of the July 18, 2017 lumbar MRI,
which expressly noted worsening compared to the prior study; (2) the results of
the July 21, 2017 FCE; (3) Dr. Carey’s April 11, 2016 MSS and his November 13,
2017 Physical RFC Assessment; or (4) the multiple treatment records generated

after December of 2015, which seemed to corroborate Plaintiff’s complaints of
pain and other disabling symptoms.
Importantly, in according significant weight to Dr. Krishnamurthy’s opinion,
the ALJ did not explain what objective medical evidence and examination
findings he was referring to. In the absence of such an explanation, it is

impossible for the Court “to determine whether the ultimate decision on the
merits of the claim is rational and supported by substantial evidence,” particularly
since the ALJ decided to give little weight to the treating and examining opinions
in the record. Winschel, 631 F.3d at 1179 (also stating that “when the ALJ fails
to state with at least some measure of clarity the grounds for his decision, [the
Court] will decline to affirm simply because some rationale might have supported

the ALJ’s conclusion”) (internal quotation marks omitted).
The ALJ was just as vague when he gave little weight to Dr. Carey’s
treating opinions as “not consistent with his treatment notations or the other
medical evidence of record,” and to the results of the FCE as “not consistent with
the medical evidence of record as a whole.” (Tr. 16-17.) Although the ALJ

purportedly gave some weight to Dr. Carey’s November 2017 Physical RFC
Assessment, he did not explain which findings were credited and which findings
were rejected (and why), and implied that he did not adopt the RFC because it
was “not fully consistent with [Dr. Carey’s] treatment notations and the rest of the
medical evidence of record.” (Tr. 16.) As shown above, the ALJ’s reasons for
weighing the medical opinion evidence—both the opinions that he rejected and

the opinions that he credited (or purportedly credited)—were too vague to allow
for a meaningful review.
In any event, the ALJ’s statements that Dr. Krishnamurthy’s opinion was
more consistent with the objective medical evidence and the examination
findings, and that the treating and examining opinions were not consistent with

the treatment notations and the rest of the medical evidence, are not supported
by substantial evidence. The examination findings were not as limited as the ALJ
seems to suggest. The examinations revealed, inter alia, neck pain and
stiffness, mildly antalgic gait, radiating back pain, intermittent leg numbness,
decreased range of motion, muscle cramps and pain, joint pain and stiffness,
tenderness to palpation in the left and right paraspinal musculature, and a

positive facet loading test (with extension). (See Tr. 253, 322, 329, 359, 401-02,
407-08, 411, 418, 421, 426, 438, 463, 467, 472, 483, 515, 521-22; see also Tr.
448 & 456 (noting “pain with percussion over L4 spinous process, pain with
percussion over L5 spinous process, and left and right paraspinal musculature
tender to palpation”); Tr. 456 (noting that the range of motion in the lumbar spine

was “grossly limited and with pain”).)
Further, the treatment records consistently demonstrated severe, or at
least moderate, pain levels. (See Tr. 246, 249, 253, 256, 264, 267 & 475 (noting
a pain level of 10/10); Tr. 322, 407, 443 & 447 (noting a pain level of 9/10); Tr.
243-44, 260, 318, 325, 329, 401, 404, 411, 421, 438 & 513 (noting a pain level of
8/10); Tr. 359, 419, 426 & 455 (noting a pain level of 7/10); Tr. 258, 479, 482 &

486 (noting a pain level of 6/10); see also Tr. 476 (noting severe, non-radicular
pain unresponsive to conservative management).) The records also reflected
that Plaintiff’s symptoms were exacerbated by prolonged sitting, standing, and
walking; stooping; flexion; extension; rotation; and increased activity in general.
(See Tr. 258, 403, 413, 443, 447, 455, 463, 467, 472, 479, 482, 486; see also Tr.

430 (“Pain is controlled if activity is controlled.”).) The pain interfered with
Plaintiff’s daily activities. (See Tr. 438, 443, 447, 455, 479, 482, 486.)
In addition, the abnormal MRIs of the lumbar spine were consistent with
the examination findings and the reported symptoms. (See Tr. 201-02 (noting,
as of March 13, 2015, disc bulging, moderate facet arthropathy, and mild to
moderate left and mild right foraminal stenosis at L4-5 with mild displacement of

the passing left L5 nerve, among other findings); Tr. 370-71 (noting, as of July
18, 2017, “worsened” findings compared to the prior study, including, inter alia,
degenerative change and broad-based disc protrusion at L4-L5 with moderate
canal stenosis and mild-to-moderate foraminal stenosis, probable contact with
the bilateral L4-L5 exiting nerve roots, and moderate to marked bilateral facet

arthrosis); see also Tr. 243 (noting that the MRI showed disc herniation and
degenerative disc disease); Tr. 255 (noting that the MRI was abnormal); Tr. 260
(noting that the MRI showed significant synovitis at L4/5, herniated nucleus
pulposus with bilateral neural foraminal stenosis at L4/5, and degenerative disc
disease at L5/S1).)
In light of those findings, Plaintiff was diagnosed with, inter alia, chronic

pain syndrome, lumbar stenosis without neurogenic claudication, lumbar facet
arthropathy, lumbago, chronic radicular pain in the lower back, muscle spasm,
disc displacement in the cervical and lumbar spine without myelopathy, herniated
disc in the lumbar spine, sciatica, and lumbosacral spondylosis. (See, e.g., Tr.
243, 399, 414, 422, 427-28, 431.) Plaintiff’s treatment included: daily use of a

back brace, nonsteroidal anti-inflammatory drugs, steroids, non-opioid
analgesics, opioid analgesics, ice, physical therapy, a home exercise program,
epidural steroid injections, nerve root block and facet joint injections,
radiofrequency denervation, and lumbar facet rhizotomy. (See, e.g., Tr. 243,
256, 331, 403, 413.)
As the records reflect, Plaintiff has failed conservative treatment and is not

a surgical candidate because the stenosis is in several different parts of her
back, leading her to modify her behavior and continue with the other treatment
modalities, alternating the location of the injections, which results in only
“transient” or “fair” relief. (See, e.g., Tr. 42, 243, 246-47, 249, 254, 256, 261-67,
318-30, 360, 402, 409, 413, 419, 434-35, 475, 484; but see Tr. 477 (noting 70%

improvement); Tr. 452-53 (noting 60% improvement).) Although Plaintiff saw
improvement with some of her treatments, her symptoms returned and were
noted to be inadequately controlled, even worsening, which was confirmed by the
sheer number and frequency of her doctor’s visits and treatments. (See Tr. 445,
449-50, 457-58, 515; see also Tr. 475 (noting that although Plaintiff experienced
“excellent pain reduction” after the April 6, 2016 radiofrequency lesioning, her

recurrent mechanical lower back pain was 10/10); Tr. 513 (stating that the
ablations, injections, and nerve blocks brought only “minor improvements in
pain”); but see Tr. 405 (“Excellent long term pain relief from the bilateral lumbar
facet radiofrequency lesioning treatments done last in [May of 2015] with some
recurrent symptoms despite interval conservative therapies . . . .”).)

Based on the foregoing, the ALJ’s reasons for largely discounting the
treating and examining opinions in the record were not only vague, but also
seemed unsupported by substantial evidence. To the extent the ALJ relied on
Dr. Krishnamurthy’s December 10, 2015 non-examining opinions, those opinions
predated a substantial part of the medical record, including several diagnostic
test results, the FCE, and a large part of Dr. Carey’s treatment records and

opinions. Because the Court concludes that the ALJ erred in his evaluation of
the medical opinions, the Court will not separately address Plaintiff’s arguments
regarding the ALJ’s assessment of her subjective complaints. Nevertheless, the
Court notes that it was improper for the ALJ to conclude that Plaintiff’s limited
participation in certain daily activities, including household chores, was consistent

with the ability to perform competitive work. The performance of such limited
daily activities is not necessarily inconsistent with allegations of disability. See,
e.g., Flynn v. Heckler, 768 F.2d 1273, 1275 (11th Cir. 1985) (per curiam)
(reversing and remanding the case to the Commissioner for lack of substantial
evidence to support the finding that the claimant had no severe impairment, even
though the claimant testified that she performed housework for herself and her

husband, accomplished other light duties in the home, and “was able to read,
watch television, embroider, attend church, and drive an automobile short
distances”); White v. Barnhart, 340 F. Supp. 2d 1283, 1286 (N.D. Ala. 2004)
(holding that substantial evidence did not support the decision denying disability
benefits, even though the claimant reported that she took care of her own

personal hygiene, cooked, did housework with breaks, helped her daughter with
homework, visited her mother, socialized with friends sometimes, and, on a good
day, drove her husband to and from work, but needed help with grocery
shopping, and could sit, stand, or walk for short periods of time). Therefore, this
case will be reversed and remanded for further proceedings.
Accordingly, it is ORDERED:
1. The Commissioner's decision is REVERSED and REMANDED
pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to the ALJ to
conduct the five-step sequential evaluation process in light of all the evidence,
including the opinion evidence from treating, examining, and non-examining
sources, and conduct any further proceedings deemed appropriate.
2. The Clerk of Court is directed to enter judgment accordingly,
terminate any pending motions, and close the file.
3. In the event that benefits are awarded on remand, any § 406(b) or §
1383(d)(2) fee application shall be filed within the parameters set forth by the
Order entered in /n re: Procedures for Applying for Attorney’s Fees Under 42
U.S.C. §§ 406(b) & 1383(d)(2), Case No.: 6:12-mc-124-Orl-22 (M.D. Fla. Nov.
13, 2012). This Order does not extend the time limits for filing a motion for
attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED at Jacksonville, Florida, on March 2, 2020.

UNITED STATES MAGISTRATE JUDGE

Copies to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104629. Public record. Not legal advice.