Goodwill v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

SHARON GOODWILL, }

}

Plaintiff, }

}

v. } Case No.: 4:22-CV-1049-RDP

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KILOLO KIJAKAZI, ACTING }

COMMISSIONER OF SOCIAL }

SECURITY, }

}

Defendant. }

MEMORANDUM OF DECISION

Plaintiff Sharon Goodwill brings this action pursuant to Section 205(g) of the Social

Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security

(“Commissioner”) denying her claim for a period of disability and disability insurance benefits

(“DIB”). See also, 42 U.S.C. § 405(g). Based on the court’s review of the record and the briefs

submitted by the parties, the court finds that the decision of the Commissioner is due to be

affirmed.

I. Proceedings Below

A. Procedural History

Plaintiff filed her application for a period of disability and DIB under Title II of the Act on

December 19, 2013, alleging a disability onset date of June 1, 2009. (R. 259). Plaintiff amended

her application on February 7, 2014, changing her alleged disability onset date to November 1,

2010. (R. 266). Plaintiff later amended her alleged disability onset date again -- to August 7, 2012

-- during a hearing before an Administrative Law Judge (“ALJ”) that was held on April 25, 2017.

(R. 41). Plaintiff’s date last insured was December 31, 2013. (R. 67). The Social Security

Administration denied Plaintiff’s application on March 27, 2014. (R. 101).

Plaintiff has participated in three hearings before an ALJ.1 Plaintiff’s most recent hearing

was held on January 26, 2021, following remand by the Appeals Council in accordance with

instructions by this court. (R. 907, 983). Due to the COVID-19 pandemic, the hearing was held

via telephone. (R. 909). Administrative Law Judge Lisa Johnson, Plaintiff Sharon Goodwill,

Attorney Rose Allenstein, Vocational Expert Ronald Smith, and Hearing Reporter Vernessa

Peterson were in attendance. (R. 909). In her April 26, 2021, decision, the ALJ again denied

Plaintiff’s application for disability benefits, finding that Plaintiff was not disabled under sections

216(i) and 223(d) of the Act at any time from August 7, 2012, Plaintiff’s amended alleged

disability onset date, through December 31, 2013, the date last insured. (R. 899). On June 17,

2022, the Appeals Council declined to review the decision. (R. 874). Therefore, the April 26,

2021, ALJ decision is the final decision of the Commissioner, making it a proper subject of review

by this court. (R. 875).

B. Hearing

At the time of the hearing on January 26, 2021, Plaintiff was 67 years old and had a

doctorate in educational leadership. (R. 48, 259, 909). Plaintiff had most recently worked as a

nurse for Redmond Hospital. (R. 75, 913). Plaintiff testified that she left her nursing job in

October 2010 because she was dropping items, could not start IVs due to swollen joints, had

difficulty moving patients because of lumbar disc disease, fell several times, had trouble getting

1 Plaintiff’s first hearing before an ALJ was held on August 17, 2015. (R. 64). The ALJ determined that

Plaintiff was not disabled during the relevant period, but on review the Appeals Council remanded the decision back

to the ALJ. (R. 123, 132). Plaintiff’s second hearing took place on April 25, 2017, and the ALJ (again) found that

Plaintiff was not disabled. (R. 31, 38). The Appeals Council denied Plaintiff’s request for review, and Plaintiff filed

a complaint in this court. (R. 1, 956). The court reversed and remanded the Commissioner’s final decision. (R. 958).

Accordingly, the Appeals Council remanded the case to the ALJ, resulting in Plaintiff’s third hearing on January 26,

2021. (R. 907, 983).

off the floor, needed to elevate her feet often, and had memory problems. (R. 913-14, 918, 923).

Plaintiff previously worked in education, most recently as an educational specialist. (R. 922).

Plaintiff testified that she left her career in education because of pain caused by the frequent

driving, walking, standing, lifting, and bending that her job required. (R. 922-23, 25). Plaintiff

alleged that back pain, joint pain, and swelling that were caused by degenerative disc disease,

osteoarthritis, and rheumatoid arthritis limited her ability to work. (R. 913-15, 919-20).

Plaintiff testified that one and a half years after leaving her nursing job she could only stand

in one spot for thirty to sixty seconds and sit in a chair for three to five minutes. (R. 914-15). She

used a cane for standing and walking and that she walked with a limp due to a degenerative disc.

(R. 915-16). Plaintiff frequently slipped and fell. (R. 916). She spent five hours out of an eight-

hour day lying down or sitting and that she elevated her feet any time that she sat down. (R. 918).

Plaintiff had trouble bending her fingers and dropped everyday items. (R. 918, 920). She

described frequent migraines that required her to lie down in a dark room. (R. 919).

Plaintiff previously testified at her 2015 hearing that she limited her driving in 2013 to five

weekly trips to the store due to back and neck pain and knee and shoulder problems. (R. 71-72).

She stated that in 2013 she was unable to empty the vacuum cleaner or dishwasher and to do

laundry but she could fold the laundry while seated. (R. 79). She drove fifty to seventy-five feet

to the mailbox instead of walking due to back problems. (Id.). Plaintiff testified that due to

migraines and back pain she woke up during the night, ate no more than two meals per day, and

spent 2 to 2.5 hours per day lying down. (R. 80, 83). She testified that she could not pick up a

10-pound bag of potatoes. (R. 82).

Plaintiff testified that she took the medications prescribed for her and that they were

effective. (R. 77). She completed home exercises to help strengthen her back muscles. (R. 78).

She was never issued a brace, splint, or TENS unit. (R. 78-79). At the time of the 2015 hearing,

Plaintiff was taking Celebrex but had not yet taken methotrexate for rheumatoid arthritis. (R. 85).

At the 2021 hearing, the Vocational Expert (“VE”) characterized Plaintiff’s past work as

light work. (R. 926). The VE testified that an individual of Plaintiff’s age, education, and work

history that had to elevate his or her legs for five hours per day would be unable to perform any

work in the national economy. (Id.). He also stated that a hypothetical person requiring a cane to

stand and walk would be unable to participate in a full range of light work. (R. 927). The VE

further testified that “a hypothetical person of [Plaintiff’s] age, education, and work experience

who has only the occasional use of the bilateral upper extremities” could not complete sedentary

work. (Id.). He opined that the types of jobs Plaintiff held previously generally require a person

to be off task no more than 5% of the day and permit no more than one day absent per month. (R.

926-27).

C. Medical Records

1. Dr. Puckett

During her alleged period of disability, Plaintiff primarily received treatment from Dr.

Puckett of the Harmon Clinic. (R. 77). On August 7, 2012, the date Plaintiff now contends was

her alleged disability onset date, Plaintiff presented to Dr. Puckett, complaining of “all over joint

pain [that] started several years getting worse.” (R. 532). Dr. Puckett noted that Plaintiff had

worsening pain in her left hip that caused her to fall occasionally, that “regular walking will require

that [she] hold to the fence to keep from falling over,” and that riding in the car worsened her pain.

(R. 534). However, Dr. Puckett also noted that Plaintiff was “able to carry something heavy

without problems,” had “no problems sleeping on the left side,” and experienced “no particular

pain to palpation of the lateral leg.” (Id.). A physical examination revealed a normal hip joint,

normal strength and sensation in the legs, and no tenderness to the touch in the lateral hip, greater

trochanter, or lower back. (Id.). Dr. Puckett diagnosed Plaintiff with thoracic or lumbosacral

neuritis or radiculitis and ordered X-rays. (Id.). The X-rays revealed no abnormal findings in her

left hip but did find “[m]ild degenerative disc disease and posterior apophyseal joint degenerative

changes” and “slight levoscoliosis of the lumbar spine . . . maximum at the L3 level.” (R. 537).

Plaintiff returned to Dr. Puckett on August 27, 2012, complaining of low back pain that

she had reportedly experienced for several months. (R. 528). Dr. Puckett wrote that Plaintiff’s

pain was worsening, causing her to fall and requiring her to use a cane. (R. 530). Dr. Puckett

furthermore wrote that “[Plaintiff] is completely incapacitated and cannot even walk her dog now.”

(Id.). Based on Plaintiff’s subjective complaints, Dr. Puckett wrote the following: “I think that her

only next step is to proceed to MRI. She has failed conservative measures and is truly bruised up

from falling and instability. She may be able to get some PT, ESI, Neurosurg, etc. Will start with

the next step of imaging.” (Id.). However, Plaintiff testified in her 2021 hearing that she did not

receive the MRIs because she could not afford the $1,500 copay at the time. (R. 916-17). Plaintiff

stated in her 2015 hearing that she was unable to afford the $30 copay per session for physical

therapy, and there is no evidence in the record that she received any other further treatment. (R.

83).

On December 20, 2012, Dr. Puckett saw Plaintiff about lower back pain and shooting pains

running down Plaintiff’s left leg. (R. 524). In Plaintiff’s History of Present Illness (HPI), Dr.

Puckett wrote the following: “She has been bothered with sciatic pains more on the left than right.

She is better carrying things and riding her bicycle. Sitting or riding long makes it worse.” (R.

526). During this appointment, Dr. Puckett conducted a physical examination that resulted in a

positive straight leg raise test in the left leg sitting at full extension. (Id.). Dr. Puckett

recommended a physical therapy evaluation and treatment and planned to proceed with an open

MRI if physical therapy did not improve Plaintiff’s condition. (Id.). Plaintiff had four

appointments with Dr. Puckett during the summer of 2013 (that were unrelated to Plaintiff’s back

or joint problems). (R. 507-09, 511-13, 515-17, 519-21).

On November 11, 2013, Dr. Puckett again saw Plaintiff, who said that arthritis was

bothering her right shoulder and elbow. (R. 502). Dr. Puckett noted that Plaintiff’s osteoarthritis

had been “bothering her more lately” and ordered that she use topical pain treatment for her elbow,

ice and NSAIDs for her knee, and wear a sleeve on her knee during activity. (R. 504-05).

There are two medical opinions by Dr. Puckett in the record. (R. 601-02, 683-84). On

June 12, 2014, Dr. Puckett completed a Physical Capacities Form in which he opined that Plaintiff

could only sit in a standard chair, stand, or walk for less than fifteen minutes at a time. (R. 601).

He expected that Plaintiff spent five hours of an eight-hour period lying down, sleeping, or sitting

with legs elevated as a result of her medical conditions. (Id.). Dr. Puckett affirmed that these

limitations existed on November 1, 2010. (Id.). He wrote that Plaintiff could perform a task for

under fifteen minutes before needing a break and that she could occasionally lift a maximum of

ten pounds and never lift anything heavier. (Id.). Dr. Puckett identified osteoarthritis and

rheumatoid arthritis as the conditions causing Plaintiff’s limitations. (Id.). Dr. Puckett responded

“yes” to a question on the form asking if Plaintiff had herniated nucleus pulpous, spinal

arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, or vertebral

fracture. (R. 602). He affirmed that there was neuro-anatomic distribution of pain, limitation of

motion of the spine, motor loss accompanied by sensory or reflex loss, medically acceptable

imaging evidence of nerve root compression, and a positive straight-leg raising test, both sitting

and supine. (Id.).

Dr. Puckett completed a second medical opinion on January 31, 2017. (R. 683-85). In the

Physical Capacities Form, Dr. Puckett again opined that Plaintiff could sit in a standard chair or

stand for less than fifteen minutes at a time. (R. 683). This time, Dr. Puckett wrote that he expected

Plaintiff to lie down, sleep, or sit with legs elevated for less than fifteen minutes during an

eight-hour daytime period, that Plaintiff would be off-task between 40% and 60% of the time

during an eight-hour day, and that she would miss work five days during a thirty-day period due

to her physical symptoms. (Id.). Dr. Puckett affirmed that these limitations existed on November

1, 2010. (Id.). Dr. Puckett again wrote that Plaintiff could occasionally lift a maximum of ten

pounds, could never lift anything over ten pounds, and could not push or pull with her hands well

enough to operate controls. (Id.). Dr. Puckett further wrote that Plaintiff experienced occasional

limitations on reaching, handling, and feeling with her left hand, frequent manipulative limitations

on fingering with her left hand, occasional manipulative limitations on feeling with her right hand,

and frequent manipulative limitations on reaching, handling, and fingering with her right hand.

(R. 683-84). Again, Dr. Puckett determined that osteoarthritis and rheumatoid arthritis caused

Plaintiff’s limitations. (Id.).

2. Dr. Brickley

Plaintiff also received treatment from Dr. Brickley, a chiropractor at Alabama Associates

Chiropractic Clinic, in January and May 2013. (R. 494-98). On January 4, 2013, Plaintiff saw Dr.

Brickley about “frequent moderately severe pain bilaterally in the lower back.” (R. 494). Plaintiff

described her pain as an 8 out of 10, and Dr. Brickley noted that Plaintiff had “experienced an

acute exacerbation of symptoms.” (Id.). At this appointment, Dr. Brickley diagnosed Plaintiff

with segmental or somatic dysfunction of the lumbar spine; low back pain; and sciatica, neuralgia,

or neuritis of sciatica. (Id.). Dr. Brickley treated Plaintiff with a chiropractic adjustment to

“improve vertebral alignment and increase mobility,” electro-muscle stimulation to “reduce

swelling and decongestion in the inflamed tissue,” and a contrast bath to “increase the circulation,

provide muscle relaxation, and sedate the nervous system, while relieving pain.” (Id.). He planned

to see Plaintiff three times per week until the next reexamination. (Id.).

Plaintiff returned to Dr. Brickley for treatment on January 8, 2013, where she indicated

that the severity of her pain had reduced, scored her low back pain as a 6 out of 10, and estimated

her response to treatment at 70%. (R. 494-95). Dr. Brickley performed the same treatments and

continued to recommend three weekly visits with Plaintiff until reexamination. (R. 495). Plaintiff

saw Dr. Brickley again on January 14, 2013, and stated to Dr. Brickley that “her left and right

lumbar pain and discomfort is showing a definite reduction severity.” (Id.). Plaintiff again scored

her low back pain as a 6 out of 10 and estimated her response to treatment at 70%. (Id.). Dr.

Brickley’s plan for treatment remained the same. (R. 496).

Plaintiff’s next medical records from Dr. Brickley are dated May 1, 2013. (Id.). Plaintiff

returned to Dr. Brickley for treatment due to worsening pain and discomfort in her low back, which

she estimated to be an 8 out of 10. (Id.). Dr. Brickley again noted that “[s]ymptoms [had] been

acutely exacerbated” and diagnosed Plaintiff with segmental or somatic dysfunction of the lumbar

spine; low back pain; and sciatica, neuralgia, or neuritis of sciatica. (Id.). Dr. Brickley again

treated Plaintiff with chiropractic adjustment, electro-muscle stim, and contrast bath, and he

indicated that Plaintiff’s conditions required three weekly visits until reexamination. (Id.).

At her follow-up appointment on May 6, 2013, Plaintiff indicated that “her pain and

discomfort in the left and right low back area continue[d] as usual.” (R. 497). Dr. Brickley used

the same treatments as the previous appointment and continued to recommend three weekly visits.

(Id.). Plaintiff saw Dr. Brickley again on May 16, 2013, where she indicated that “her pain and

discomfort in the area of the left and right lumbar [was] showing some improvement.” (Id.).

Plaintiff rated her pain as a 6 out of 10 and estimated her improvement in low back pain at 70%.

(Id.). Dr. Brickley continued with the same treatment and recommendation of three visits per

week, but the next treatment notes from Dr. Brickley are not until August 22, 2014, past Plaintiff’s

last date insured of December 31, 2013. (R. 67, 498, 623).

On September 3, 2015, Dr. Brickley completed a medical opinion for Plaintiff. (R. 651).

Dr. Brickley indicated that he did not know how long Plaintiff could sit in a standard chair or stand

at a time. (Id.). He opined that Plaintiff could walk for one hour at a time and that he expected

her to lie down, sleep, or sit with legs elevated four hours out of an eight-hour day as a result of

her medical conditions. (Id.). Dr. Brickley could not state whether the limitations existed on

November 1, 2010, because he did not treat Plaintiff at that time. (Id.). He indicated that he did

expect Plaintiff’s condition to last twelve months or more and listed somatic dysfunction of the

lumbar spine, low back pain, and sciatica as the conditions causing Plaintiff’s limitations. (Id.).

3. Dr. Ripka

On August 5, 2015, Dr. Ripka performed a single examination of Plaintiff and completed

a medical opinion, consisting of an Independent Medical Evaluation and a Physical Capacities

Form. (R. 635-41). In the Independent Medical Evaluation, Dr. Ripka noted that Plaintiff “is not

able to exercise regularly” and “must use a cane for support while ambulating.” (R. 637). Upon

examining Plaintiff’s back, Dr. Ripka found that Plaintiff’s neck motion was limited, though he

deemed her flexion and extension “unremarkable.” (R. 639). He noted that Plaintiff’s “neck and

back muscles were all tender to palpation.” (Id.). In his examination of Plaintiff’s extremities, Dr.

Ripka observed that Plaintiff’s reflexes were “diminished to absent” and that her muscle strength

in her biceps, triceps, and quads was limited bilaterally. (Id.). Dr. Ripka observed no nodules but

noted that Plaintiff experienced pain as he manipulated her fingers and found a positive straight

leg raise during the examination. (Id.). Dr. Ripka opined that Plaintiff’s medical problems dated

back seven years and were likely the beginning symptoms of rheumatoid arthritis. (Id.). However,

he noted that there was no record of her ever being prescribed disease-modifying antirheumatic

drugs (DMARDS). (R. 635).

In the Physical Capacities Form, Dr. Ripka opined that Plaintiff could sit in a standard

chair, stand, or walk for less than fifteen minutes at a time. (R. 641). Dr. Ripka expected that

Plaintiff would spend six hours out of an eight-hour day lying down, sleeping, or sitting with legs

elevated. (Id.). He stated that these limitation existed on November 1, 2010. (Id.). He also wrote

that Plaintiff would be able to perform a task for under fifteen minutes before needing a break, and

he opined that she could frequently lift objects up to five pounds, occasionally lift objects six to

ten pounds, and never lift objects over ten pounds. (Id.). He identified the conditions causing

limitations as hearing loss, changing visual acuity, chronic headaches, cervical and lumbar neck

pain with decreased mobility, muscle weakness, loss of balance, and memory loss. (Id.).

4. May 7, 2014 MRIs

Plaintiff obtained MRIs on May 7, 2014, after her date last insured. (R. 599-600). The

MRI of her cervical spine revealed C3-7 spinal stenosis, most severe at C5-6, and moderate to

severe bony cervical foraminal stenoses, also worst at C5-6, eccentric to the left. (R. 600). It

showed no focal soft disc protrusion of herniation. (Id.). The MRI of Plaintiff’s lumbar spine

revealed L2-5 spinal stenosis, most severe at L4-5, exaggerated by a left facet synovial cyst, and

small L2-3 left lateral disc protrusion, compressing the exiting L2 nerve root. (R. 599). It

suggested small L1-2 left lateral disc protrusion, but this was not completely evaluated. (Id.).

II. ALJ Decision

Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520. First,

the ALJ must determine whether the claimant is engaging in substantial gainful activity. Id. §

404.1520(a)(4)(i). “Substantial gainful activity” is defined as activity that is both “substantial”

and “gainful.” Id. § 1572. “Substantial” work activity is work that involves doing significant

physical or mental activities. Id. § 404.1572(a). “Gainful” work activity is work that is done for

pay or profit. Id. § 404.1572(b). If the ALJ finds that the claimant engages in activity that meets

both of this criteria, then the claimant cannot claim disability. Id. § 404.1520(b). Second, the ALJ

must determine whether the claimant has a medically determinable impairment or a combination

of medical impairments that significantly limits the claimant’s ability to perform basic work

activities. Id. § 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability.

Id. Third, the ALJ must determine whether the claimant’s impairment meets or medically equals

the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See id. §§

404.1520(d), 404.1525, and 404.1526. If such criteria are met, the claimant is declared disabled.

Id. § 404.1520(a)(4)(iii).

If the claimant does not fulfill the requirements necessary to be declared disabled under the

third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ must

first determine the claimant’s residual functional capacity (“RFC”), which refers to the claimant’s

ability to work despite her impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ

determines whether the claimant has the RFC to perform past relevant work. Id. §

404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant work,

then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to perform past

relevant work, then the analysis proceeds to the fifth and final step. Id. § 404.1520(a)(4)(v). In

the last part of the analysis, the ALJ must determine whether the claimant is able to perform any

other work commensurate with her RFC, age, education, and work experience. Id. § 404.1520(g).

Here, the burden of proof shifts from the claimant to the ALJ to prove the existence, in significant

numbers, of jobs in the national economy that the claimant can do given her RFC, age, education,

and work experience. Id. §§ 404.1520(g), 404.1560(c).

Here, the ALJ determined that Plaintiff did not engage in substantial gainful activity

between during the relevant period, between August 7, 2012, her amended alleged onset date, and

December 31, 2013, her date last insured. (R. 887). Second, the ALJ concluded that Plaintiff’s

degenerative disc disease, osteoarthritis, and migraine headaches were severe impairments. (R.

888). Third, the ALJ found that Plaintiff’s impairments did not meet or medically equal a listed

impairment. (R. 890). The ALJ specifically noted that Plaintiff’s back problems did not meet

Listing 1.04 because Plaintiff “does not have sensory reflex loss with positive straight leg raising

test and evidence of nerve root compression in the lumbar spine, or spinal arachnoiditis, or lumbar

spinal stenosis that results in an inability to ambulate effectively” and “does not require two canes

to ambulate and thus can ambulate effectively.” (Id.). After considering the record, the ALJ

determined that Plaintiff possessed the RFC to perform light work as defined in 20 C.F.R. §

404.1567(b), with the following exceptions:

[S]he could frequently use foot controls bilaterally and frequently use bilateral hand

controls; she could frequently reach overhead bilaterally; she could frequently

reach in all other directions bilaterally; she could frequently climb ramps and stairs;

she could never climb ladders, ropes, or scaffolds; she could frequently balance,

stoop, crouch, kneel, and crawl; in addition, to normal workday breaks, she would

be off-task five percent of an 8-hour workday (non-consecutive minutes).

(Id.). In reaching this conclusion, the ALJ gave little weight to the opinions of Dr. Puckett and Dr.

Brickley and no weight to Dr. Ripka’s opinion. (R. 895-96). Fourth, the ALJ found that Plaintiff

was capable of performing her past relevant work. (R. 897). Finally, the ALJ found that Plaintiff

“had acquired work skills from past relevant work that were transferable to other occupations with

jobs that existed in significant numbers in the national economy.” (R. 898). Therefore, the ALJ

deemed Plaintiff not disabled as defined in the Social Security Act for the period between August

7, 2012, and December 31, 2013. (R. 899).

III. Plaintiff’s Argument for Remand or Reversal

Plaintiff seeks to have the ALJ’s decision reversed and remanded for an award of benefits,

or in the alternative, remanded for further consideration. (Doc. 13, p. 39). First, Plaintiff argues

that the ALJ failed to properly consider the medical opinions of Dr. Puckett. (Doc. 13, p. 21).

Specifically, Plaintiff argues that (1) the ALJ improperly discounted Dr. Puckett’s opinions based

on their form, (2) the ALJ’s reliance on conservative treatment was legally and factually flawed,

(3) the ALJ’s reliance on Plaintiff’s daily activities was legally and factually flawed, and (4) the

ALJ erred by ignoring her May 7, 2014 MRIs. (Doc. 13, p. 22-27; Doc. 15, p. 7). Second, Plaintiff

argues that the ALJ failed to properly consider the medical opinion of Dr. Brickley. (Doc. 13, p.

28). Third, Plaintiff argues that the ALJ failed to properly consider the medical opinion of Dr.

Ripka. (Doc. 13, p. 32). And finally, Plaintiff argues that the ALJ erred as a matter of law by

applying the wrong listings. (Doc. 13, p. 35).

IV. Standard of Review

The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11th

Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847 F.2d

698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C.

§ 405(g) mandates that the Commissioner’s findings are conclusive if supported by “substantial

evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court may not

reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the

Commissioner; instead, it must review the final decision as a whole and determine if the decision

is reasonable and supported by substantial evidence. See id. (citing Bloodsworth v. Heckler, 703

F.2d 1233, 1239 (11th Cir. 1983)).

Substantial evidence falls somewhere between a scintilla and a preponderance of evidence;

“[i]t is such relevant evidence as a reasonable person would accept as adequate to support a

conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations

omitted). If supported by substantial evidence, the Commissioner’s factual findings must be

affirmed even if the evidence preponderates against the Commissioner’s findings. See Martin,

894 F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s findings is

limited in scope, the court also notes that review “does not yield automatic affirmance.” Lamb,

847 F.2d at 701.

V. Discussion

Plaintiff argues that the ALJ improperly considered the medical opinions of Drs. Puckett,

Brickley, and Ripka. (Doc. 13, p. 22, 28, 32). “Medical opinions are statements from acceptable

medical sources that reflect judgments about the nature and severity of [a claimant’s]

impairment(s).” 20 C.F.R. § 404.1527(a)(1). An ALJ considers various factors in assigning

weight to medical opinions: “(1) whether the doctor has examined the claimant; (2) the length,

nature, and extent of a treating doctor’s relationship with the claimant; (3) the medical evidence

and explanation supporting the doctor’s opinion; (4) how consistent the doctor’s ‘opinion is with

the record as a whole’; and (5) the doctor’s specialization.” See Brown v. Comm’r of Soc. Sec.,

442 F. App’x 507, 511-12 (11th Cir. 2011) (citing 20 C.F.R. §§ 404.1527(d), 416.927(d)).

A. The ALJ Demonstrated Good Cause to Discount Dr. Puckett’s Opinions.

First, Plaintiff argues that the ALJ improperly considered Dr. Puckett’s opinions. Because

Plaintiff frequently received treatment from Dr. Puckett and applied for disability benefits on

December 19, 2013, the Treating Physician Rule, though no longer applicable to newer claims,

applies here.2 (R. 259; 20 C.F.R. § 1527(a)(2)). Under the Treating Physician Rule, “[t]he

testimony of a treating physician must ordinarily be given substantial or considerable weight unless

good cause is shown to the contrary.” See MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.

1986); see also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R. §

404.1527(d)(2)). Good cause exists when (1) the treating physician’s opinion “was not bolstered

by the evidence,” (2) “evidence supported a contrary finding,” or (3) the “treating physician’s

opinion was conclusory or inconsistent with the doctor’s own medical records.” See Phillips v.

Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). The ALJ is required to “clearly articulate the

reasons for giving less weight to the opinion of a treating physician, and the failure to do so is

reversible error.” See Lewis, 125 F.3d at 1440. If the record-based reasons articulated by the ALJ

demonstrate good cause, then “the determination is supported by substantial evidence and there is

no reversible error.” See Delgado v. Comm’r of Soc. Sec., No. 20-14234, 2021 WL 4099237, at

*4 (11th Cir. Sept. 9, 2021). For the reasons discussed below, the ALJ showed good cause to give

little weight to Dr. Puckett’s opinions.

The ALJ found that Dr. Puckett’s opinions were inconsistent with his own treatment

records, and substantial evidence supports that finding. (R. 895). While Dr. Puckett identified

2 The court acknowledges that for claims filed on or after March 27, 2017, the revised regulations do not

permit the reviewing ALJ to “give any specific evidentiary weight, including controlling weight, to any medical

opinion(s) or prior administrative medical finding(s), including those from [the claimant’s own] medical sources.” 20

C.F.R. § 404.1520c(a). However, both parties agree that Plaintiff filed for disability and DIB on December 19, 2013;

therefore, 20 C.F.R. § 404.1527 is the applicable regulation in this case. This regulation states in pertinent part that

“[g]enerally, [the ALJ will] give more weight to medical opinions from [the claimant’s] treating sources…” 20 C.F.R.

§ 404.1527.

rheumatoid arthritis as a condition causing Plaintiff’s limitations in his opinions, he did not

diagnose her with rheumatoid arthritis at any point during the relevant period. (R. 601, 684, 895).

While Dr. Puckett did discuss Plaintiff’s osteoarthritis in his treatment notes, his notes do not

indicate that Plaintiff was as severely limited by the diagnosis as he suggested in his opinions. (R.

601-02, 683-84). On August 7, 2012, Dr. Puckett wrote that “regular walking will require that

[Plaintiff] hold to the fence to keep from falling over” and that Plaintiff had “some problems with

radiation of the pain down the lateral leg. . . Riding in the car seems to make it worse.” (R. 534).

However, and conversely, he noted that she was “able to carry something heavy without

problems.” (R. 534). On August 27, 2012, Dr. Puckett noted that “[Plaintiff’s] pain is getting

worse to the point that she is now falling. She has to use a cane now. She is completely

incapacitated and cannot even walk her dog now.” (R. 530). However, in his notes for Plaintiff’s

next appointment on December 12, 2012, Dr. Puckett wrote the following: “She has been bothered

with sciatic pains more on the left than right. She is better carrying things and riding her bicycle.

Sitting or riding long [sic] makes it worse.” (R. 526). In his treatment notes, Dr. Puckett did not

address Plaintiff’s back or joint pain again until November 5, 2013, when he observed that

Plaintiff’s osteoarthritis was “bothering her more lately” and ordered topical pain treatment for her

elbow and ice and NSAIDs for her knee. (R. 505). Dr. Puckett planned to use this regimen for

six weeks and reassess whether referral to an orthopedist was necessary. (R. 505). The next

treatment notes from Dr. Puckett in the record are dated May 28, 2014, and do not discuss

Plaintiff’s back or joint pain. (R. 614).

Substantial evidence also supports the ALJ’s determination that objective medical evidence

from the relevant period, including physical examinations and imaging, was inconsistent with the

limitations alleged in Dr. Puckett’s opinions. (R. 895, 601-02, 683-84). An examination on

August 7, 2012, showed a normal hip joint, no tenderness in her lower back on palpation, and

normal leg strength and sensation. (R. 534). X-rays on August 10, 2012, revealed no abnormal

findings in Plaintiff’s hip. (R. 536). The X-rays actually showed that Plaintiff had mild back

conditions, including mild degenerative disc disease, mild posterior apophyseal joint degeneration,

and slight levoscoliosis of the lumbar spine, with normal surrounding soft tissue planes. (R. 537).

There was only one positive straight leg raise test at full extension during the period (dated

December 20, 2012). (R. 526).

Additionally, the ALJ showed good cause for discounting Dr. Puckett’s opinions by

identifying inconsistencies between his opinions and Plaintiff’s testimony about her daily

activities. (R. 895). The ALJ noted that Plaintiff could drive twelve miles to the grocery store

(and do so two to three times per week), prepare meals, fold laundry, and dust the house. (R. 895).

These activities, which were noted by Dr. Puckett, are inconsistent with his opinion about

limitations on Plaintiff’s ability to perform activities, sit, stand, walk, or manipulate her fingers

and hands. (R. 601, 683-84).

1. The ALJ Discounted Dr. Puckett’s Opinions on the Basis of Content,

Not Form

Plaintiff argues that the ALJ improperly discounted Dr. Puckett’s opinions because of their

format. (Doc. 13, p. 22). The court disagrees. Plaintiff bases this argument on the ALJ’s statement

that “Dr. Puckett’s 2014 and 2017 evaluations consist of checkmarks on a form prepared by the

claimant’s representative, with no accompanying analysis or evidence, rendering them conclusory

and without substantial support.” (R. 895). Plaintiff is mistaken in arguing that the ALJ discounted

Dr. Puckett’s opinions solely because of his use of checkmarks. (Doc. 13, p. 23). The ALJ may

discount a treating physician’s opinion when “it is not accompanied by objective medical evidence

or is wholly conclusory.” See Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991) (citing

Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987)). That is precisely what the ALJ did here

when she found that Dr. Puckett’s opinions held little weight because they were conclusory and

inconsistent with the record. (R. 895). The ALJ correctly concluded that lack of accompanying

analysis or evidence in the opinion rendered them conclusory. See Brown, 442 F. App’x at 512

(finding that treating physician’s opinions were conclusory because doctor did not reference

treatment records or adequately explain opinions).

The ALJ also explained that Dr. Puckett’s opinions held little weight because they were

not supported by his treatment records or the record as a whole. (R. 895). In Schink v. Comm’r of

Soc. Sec., the case Plaintiff cites, the Eleventh Circuit held that the ALJ erred in discounting two

treating physicians’ opinions as conclusory based on the use of checkmarks without also

considering whether the opinions were consistent with the treating physicians’ treatment notes.

935 F.3d 1245, 1262 (11th Cir. 2019). But here, in contrast, the ALJ’s determination was based

on the substantive record evidence, not merely check the box information. That is, the ALJ

concluded that Dr. Puckett’s opinions were inconsistent with his treatment notes. (R. 895).

2. The ALJ’s Consideration of Plaintiff’s Conservative Treatment Does

Not Constitute Reversible Error

Citing Grier v. Colvin and Henry v. Comm’r of Soc. Sec., Plaintiff argues that the ALJ erred

in considering her conservative treatment as evidence that she was not disabled. See Grier v.

Colvin, 117 F. Supp. 3d 1335 (N.D. Ala. 2015); Henry v. Comm’r of Soc. Sec., 803 F.3d 1264

(11th Cir. 2015). In both those cases, the courts determined that the ALJ committed reversible

error by failing to consider whether there was good cause for the claimants’ failure to seek medical

treatment. See Grier, 117 F. Supp. 3d at 1344; Henry, 803 F.3d at 1267. And, in both cases the

ALJs did not point to substantial evidence of disability aside from the claimants’ receipt of

conservative treatment. See Grier, 117 F. Supp. 3d at 1342; Henry, 803 F.3d at 1268.

But, this case is more in line with Ellison v. Barnhart, where the Eleventh Circuit held that

the ALJ’s failure to consider if there was good cause for the plaintiff’s noncompliance with

medical treatment was not reversible error because noncompliance was not the sole or primary

basis for the ALJ’s finding that the plaintiff was not disabled. 355 F.3d 1272, 1275 (11th Cir.

2003). Similarly, in Ybarra v. Comm’r of Soc. Sec., the circuit found that the ALJ erred by failing

to consider good cause for the plaintiff’s failure to seek treatment but that the error was not

reversible because the ALJ’s determination of the plaintiff’s credibility was supported by other

substantial evidence. 658 F. App’x 538, 543 n.2 (11th Cir. 2016).

Plaintiff did not receive the MRI that Dr. Puckett ordered. (R. 916-17, 530). Dr. Puckett

wrote in his treatment records that Plaintiff had failed conservative measures and that an MRI was

the appropriate next step. (R. 530). He also noted that physical therapy, epidural steroid injections,

neurosurgery, or some other treatment might be beneficial. (R. 530). However, Plaintiff testified

in her 2021 hearing that she did not receive the MRI at that time because she could not pay the

$1,500 copay. (R. 916-17). She also stated in her 2015 hearing that she was unable to afford the

$30 copay for physical therapy. (R. 83).

The record certainly presents a concern that the ALJ may have improperly considered

Plaintiff’s conservative treatment. The ALJ stated that Plaintiff’s conservative medication-based

treatment was inconsistent with Plaintiff’s statements about the intensity, persistence, and limiting

effects of her symptoms and her alleged inability to participate in any type of work. (R. 894-95).

The ALJ acknowledged Plaintiff’s contention that she could not afford the co-pay for the MRI.

But, the ALJ did not determine whether Plaintiff’s indigence was good cause for her failure to seek

more intensive treatment. (R. 891-92). Generally, the question presented in such a circumstance

is whether an ALJ erred in failing to do so.3 See Henry, 803 F.3d at 1267-68; see also SSR 16-3p,

2016 SSR LEXIS 4. But here, even assuming error, any such error is not reversible because the

ALJ provided other reasons for discounting Dr. Puckett’s opinions that are supported by

substantial evidence. (R. 890-96; Ellison, 355 F.3d at 1275). Indeed, as discussed above, the ALJ

articulated that Dr. Puckett’s opinions were inconsistent with Plaintiff’s treatment notes, objective

medical evidence, and daily activities. (R. 895).

3. The ALJ Properly Considered Plaintiff’s Daily Activities

Plaintiff argues that the ALJ improperly considered her daily activities. (Doc. 13, p. 26).

The court disagrees.

First, Plaintiff alleges that the ALJ was impermissibly selective in her consideration of

Plaintiff’s daily activities. But, as the Eleventh Circuit has stated, “there is no rigid requirement

that the ALJ specifically refer to every piece of evidence in his decision,” so long as the evidence

shows the court that the ALJ considered the claimant’s condition as a whole. See Dyer v. Barnhart,

395 F.3d 1206, 1211 (11th Cir. 2005) (citing Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)).

The ALJ comprehensively considered Plaintiff’s daily activities, spending nearly three pages

discussing in detail Plaintiff’s testimony (from three separate hearings) about her daily activities

and her function report. (R. 891-93). This is sufficient to indicate to the court that the ALJ

considered the totality of Plaintiff’s daily activities. (R. 891-93); see also Dyer, 395 F.3d at 1211.

Second, Plaintiff alleges that the ALJ erred by relying on her daily activities to discount

Dr. Puckett’s opinions. (Doc. 13, p. 26-27). As discussed above, an ALJ may discount the medical

opinion of a treating physician when there is good cause to do so. See MacGregor, 786 F.2d at

3 This is especially concerning considering that Judge Kallon previously instructed the ALJ to outline on

remand any valid reasons for discounting Plaintiff’s testimony about her inability to afford an MRI or physical therapy.

(R. 977 n.9).

1053; see also Lewis, 125 F.3d at 1440; 20 C.F.R. § 404.1527(d)(2)). The Eleventh Circuit has

held that “an ALJ does not need to give a treating physician’s opinion considerable weight if

evidence of the claimant’s daily activities contradicts the opinion.” See Jarrett v. Comm’r of Soc.

Sec., 422 F. App’x 869, 873 (11th Cir. 2011) (citing Phillips, 357 F.3d at 1241); see also Moore

v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005) (finding that ALJ did not err in discounting

treating physician’s opinion in part because treating physician’s opinion failed to account for

plaintiff’s daily activities).

Here, the ALJ considered the entire record and found that evidence regarding Plaintiff’s

daily activities undermined Dr. Puckett’s medical opinions. (R. 891-95). The ALJ found that

Plaintiff’s daily activities of driving to the grocery store, bathing, dressing, preparing meals,

folding laundry, and dusting the house contradicted Dr. Puckett’s opinions, which stated that

Plaintiff was unable to sit, stand, or walk for more than fifteen minutes and that she occasionally

or frequently experienced manipulative limitations of her hands. (R. 601, 683-84, 895). Because

the ALJ thoroughly considered Plaintiff’s daily activities and articulated specific evidence that

they were inconsistent with Dr. Puckett’s opinions, the court finds that the ALJ’s decision to

discount Dr. Puckett’s opinion was supported by substantial evidence. See Jarrett, 422 F. App’x

at 873; see also Martin, 894 F.2d at 1529.

Having said that, the ALJ did not rely solely on Plaintiff’s daily activities to discount Dr.

Puckett’s opinions. (R. 895). Rather, the ALJ also discounted Dr. Puckett’s opinions largely

because of inconsistencies between his opinions and Plaintiff’s treatment records. (Id.).

Therefore, even if Plaintiff’s daily activities were not a reasonable basis to discount Dr. Puckett’s

opinions, there is still good cause to give them less weight. See Phillips, 357 F.3d at 1240-41.

4. The ALJ Properly Considered the 2014 MRIs.

Plaintiff next asserts that the ALJ erred in discounting Dr. Puckett’s opinions without

considering her MRIs performed on May 7, 2014 – after Plaintiff’s date last insured. (Doc. 13, p.

3). But, Plaintiff is incorrect in her assertion that “[t]he ALJ failed to discuss the results of the

MRI either independently or in the context of the medical opinions.” (Doc. 13, p. 16). In fact, the

ALJ accurately discussed the MRI results in her discussion of Plaintiff’s RFC, where she also

addressed the medical opinions. (R. 894-95).

Plaintiff contends that the MRIs demonstrate the severity of her symptoms during the

claims period and “provide uncontested objective support for the Puckett opinion.” (Doc. 13, p.

3). First, “records postdating the claimant’s date last insured [are] chronologically relevant only

to the extent they reasonably portray the severity of the claimant’s impairments during the

pertinent period.” Edwards v. Comm’r, Soc. Sec. Admin., No. 6:20-cv-00715-HNJ, 2021 WL

3667031, at *8 (N.D. Ala. August 18, 2021) (citing Anderson v. Schweiker, 651 F.2d 306, 310 n.3

(5th Cir. 1981)). It is unclear that the MRI results from May 2014 reflect Plaintiff’s condition

prior to December 31, 2013, and the court notes that, without question, degenerative disc disease

progresses over time. (Doc. 13, p. 5).

Furthermore, even if the MRI results do reflect Plaintiff’s condition during the relevant

period, they do not provide “uncontested objective support” for the limitations opined by Dr.

Puckett. (Doc. 13, p. 3). There is still good cause to discount Dr. Puckett’s opinions because they

were conclusory and inconsistent with both Plaintiff’s treatment records and her daily activities

from the relevant period. See Phillips, 357 F.3d at 1241; see also Creasy v. Astrue, No. 3:12-cv-

1698-AKK, 2012 WL 6698695, at *15 (N.D. Ala. Dec. 26, 2012) (finding that ALJ’s failure to

state why MRI showing moderate to severe stenosis failed to establish disability was harmless

error because ALJ showed other substantial evidence that plaintiff’s pain was not as severe as

alleged); Morales v. Comm’r of Soc. Sec., No. 21-13175, 2023 WL 155213, at *16-18 (11th Cir.

Jan. 11, 2023) (affirming ALJ’s determination that plaintiff could perform light work with

exceptions despite MRI showing severe right foraminal stenosis because physical examinations

were unremarkable).

B. The ALJ Properly Considered Dr. Brickley’s Opinion.

Citing Delgado v. Commissioner, Plaintiff next argues that the ALJ’s assignment of little

weight to Dr. Brickley’s opinion was conclusory and improper. (Doc. 13, p. 28; Delgado, 2021

WL 4099237, at *5). In Delgado, the Eleventh Circuit held that the ALJ did not provide sufficient

evidence to accord little weight to a psychologist’s medical opinion by merely stating that it was

“not supported by the record.” Delgado, 2021 WL 4099237, at *5. But, Delgado is distinguishable

because Delgado dealt with a psychologist’s opinion, whereas Dr. Brickley is a chiropractor. Id.

While the Commissioner treats a psychologist as an acceptable medical source, a chiropractor is

not considered an acceptable medical source. See SSR 06-03p, 2006 WL 2263437, at *45594.

It is well established that an ALJ must “state with particularity the weight given to different

medical opinions and the reasons therefor.” See Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,

1179 (11th Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). “Medical

opinions are statements from acceptable medical sources that reflect judgments about the nature

and severity of [a claimant’s] impairment(s).” 20 C.F.R. § 404.1527(a)(1). Because chiropractors

are not acceptable medical sources, an ALJ has no duty to “specifically explain his reasons for

disregarding [a chiropractor’s] opinion.” See Chapman v. Comm’r of Soc. Sec., 709 F. App’x 992,

995 (11th Cir. 2017). Therefore, the ALJ did not err here when she assigned little weight to the

Physical Capacities Form completed by Dr. Brickley. (R. 896).

C. The ALJ Properly Considered Dr. Ripka’s Opinion.

Plaintiff also asserts that the ALJ erred when she gave no weight to Dr. Ripka’s opinion.

(Doc. 13, p. 32). Specifically, Plaintiff argues that the ALJ was conclusory in her explanation that

Dr. Ripka’s opinion was inconsistent with the record and not representative of her functioning

during the relevant period. (Id.). Dr. Ripka performed a single independent medical evaluation of

Plaintiff on August 5, 2015. (R. 635). The Eleventh Circuit has held that an “ALJ owes no

deference to the opinion of a physician who conducted a single examination.” See Eyre v. Comm’r

of Soc. Sec. Admin., 586 F. App’x 521, 523 (11th Cir. 2014); see also Gibson v. Heckler, 779 F.2d

619, 623 (11th Cir. 1986); McNamee v. Soc. Sec. Admin., 154 F. App’x 919, 924 (11th Cir. 2006).

However, the ALJ is required to clearly state the weight given to a one-time examiner’s medical

opinion and to articulate the reasons for doing so. See Winschel, 631 F.3d at 1179.

Here, the ALJ clearly stated why she accorded no weight to Dr. Ripka’s opinion. (R. 896).

She articulated that she rejected Dr. Ripka’s opinion because it was “performed almost two years

after the date last insured” and was “inconsistent with the treating records of the time.” (Id.). A

review of the record supports the ALJ’s decision that Dr. Ripka’s opinion is inconsistent with

Plaintiff’s treatment records. For example, Dr. Ripka opined in his independent medical

evaluation that Plaintiff’s symptoms were “probably a beginning of rheumatoid arthritis affecting

her body and creating the problems with her hips and hands.” (R. 639). However, Plaintiff’s

treatment records show that her treating physician did not diagnose her with rheumatoid arthritis

nor refer her to a rheumatologist during the relevant period. (R. 502-32). Dr. Ripka opined that

Plaintiff could not sit, stand, walk, or perform any activity for more than fifteen minutes and that

she needed to lie down, sleep, or sit with legs elevated for six hours out of eight-hour day. (R.

641). As discussed previously, the ALJ found that Plaintiff’s physical examinations and daily

activities from the relevant period do not support such severe limitations. (R. 895-96). The ALJ

also found that Dr. Ripka’s opinion about her limitations was largely based on her subjective

reports, and the ALJ found that Plaintiff’s daily activities and treatment records indicated that her

limitations were not as severe as she reported. (R. 893). Because the ALJ articulated why she

rejected Dr. Ripka’s opinion and her reasoning is supported by substantial evidence in the record,

the ALJ did not err in giving no weight to Dr. Ripka’s opinion. See Wainwright v. Comm’r of Soc.

Sec. Admin., No. 06-15638, 2007 WL 708971, at *2 (11th Cir. Mar. 9, 2007).

Plaintiff further argues that the ALJ “rejected the only medical evidence and replaced it

with her own opinion.” (Doc. 13, p. 33). This argument is without merit. The ALJ did not

“arbitrarily reject uncontroverted medical evidence.” See Jones v. Astrue, 494 F. Supp. 2d 1284,

1289 (N.D. Ala. 2007). Rather, the ALJ articulated her reasons for rejecting the examining

physician’s opinions, and substantial evidence supports her findings. (R. 895-96). The ALJ did

not reject all medical evidence; in fact, she largely relied on Plaintiff’s treatment records, physical

examinations, and X-rays to find that the medical opinions were not supported by the record. (Id.).

Finally, Plaintiff asserts that the ALJ failed to state with particularity which daily activities

were inconsistent with the Ripka Opinion. (Doc. 13, p. 34). In her decision, the ALJ stated the

following: “Moreover, as discussed above, the record reveals that the claimant’s self-reported

activities and treatment records indicate her limitation were not as severe as opined.” (R. 896). In

doing so, the ALJ referred back to her previous discussion of daily activities, where she noted that

Plaintiff made two or three weekly twelve-mile trips to the grocery store, bathed, dressed, prepared

meals, folded laundry, and dusted the house. (R. 895). These particular daily activities are

inconsistent with Dr. Ripka’s opinion about the severity of Plaintiff’s limitations as expressed in

the Physical Capacities Form. (R. 641). Regardless, and as discussed above, the ALJ relied

heavily on objective medical evidence in assigning no weight to Dr. Ripka’s opinion. (R. 896).

D. The ALJ Committed Harmless Error When She Applied the Wrong Listings.

Finally, Plaintiff argues that the ALJ erred as a matter of law by applying the wrong listings.

(R. 35). In her decision on April 26, 2021, the ALJ considered whether Plaintiff met Listings 1.02,

1.04, 12.04, or 12.06. (R. 890). However, the Social Security Administration amended its Listings

prior to the ALJ’s decision. See Revised Medical Criteria for Evaluating Musculoskeletal

Disorders, 85 Fed. Reg. 78164-01, 2020 WL 7649906 (Dec. 3, 2020). The regulations dictate that

the Social Security Administration apply the new Listings to all claims pending on or after April

2, 2021. Id. Because the ALJ issued her decision on April 26, 2021, the relevant Listings that the

ALJ should have considered were Listings 1.15, 1.16, and 1.18. Id. The Commissioner concedes

that the ALJ erred by applying the wrong Listings but argues that Plaintiff failed to show reversible

error because she provided no evidence that she would meet the new Listings. (Doc. 14, p. 14-

17). The Commissioner contends that the ALJ’s error therefore does not warrant remand. (Doc.

14, p. 18-19).

Addressing different revised Listings, Judge Kallon previously held that an ALJ committed

reversible error by failing to apply the new Listing for diabetes mellitus to an application for

benefits filed one month after the new Listing went into effect. See Christiansen v. Colvin, No.

5:14-CV-1314-AKK, 2015 WL 875427, at *4 (N.D. Ala. March 2, 2015). However, Christiansen

is distinguishable because, whereas the new Listing for diabetes mellitus in Christiansen had

materially different medical criteria from the former Listing, the criteria for the Listings at issue

here are not materially different. Id. at *8-9. If anything, Listings 1.15, 1.16, and 1.18 contain

more stringent requirements for claimants than Listings 1.02 and 1.04.

Courts generally will not vacate or remand a case unless an error has prejudiced the

plaintiff. See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (“Procedural perfection in

administrative proceedings is not required. This court will not vacate a judgment unless the

substantial rights of a party have been affected.”); see also Fisher v. Bowen, 869 F.2d 1055, 1057

(7th Cir. 1989) (“No principle of administrative law or common sense requires the Commissioner

to remand a case in quest of a perfect opinion unless there is reason to believe that remand might

lead to a different result.”). Here, Plaintiff was not prejudiced by the ALJ’s error because Plaintiff

still would be unable to meet the requirements for the new Listings, which are not materially

different from the outdated Listings that the ALJ considered. (R. 890); see also Robin F. ex rel.

J.R.F. v. Berryhill, No. 4:17-cv-00021, 2018 WL 10802683, at *8 (W.D. Va. Aug. 21, 2018)

(finding harmless error where ALJ applied wrong version of Listing because Plaintiff clearly did

not satisfy criteria of correct Listing). Because the old and new Listings are substantially similar

and remanding would not lead to a different outcome for Plaintiff, this court easily concludes that

the ALJ did not commit reversible error when she applied the superseded Listings. See Holland

ex rel. West v. Saul, No. 18-CV-25248, 2019 WL 7842199, at *7 (S.D. Fla. Oct. 18, 2019) (finding

harmless error when ALJ cited to wrong Listing because ALJ considered elements of correct

Listing and plaintiff did not articulate prejudice resulting from error); see also Fleming v.

Barnhart, 284 F. Supp. 256, 267 (D. Md. 2003) (remanding when ALJ applied superseded Listing

because new Listing contained materially different criteria).

VI. Conclusion

The court concludes that the ALJ’s determination that Plaintiff is not disabled is supported

by substantial evidence and the proper legal standards were applied in reaching this determination.

The Commissioner’s final decision is therefore due to be affirmed A separate order in accordance

with this memorandum of decision will be entered.

DONE and ORDERED this July 25, 2023.

R! DAVID 24 2

UNITED STATES DISTRICT JUDGE

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