United States District Court, N.D. Alabama, Jasper Division
MEMORANDUM OPINION AND ORDER
C. BURKE UNITED STATES DISTRICT JUDGE.
the Court is the complaint of plaintiff Richard Kimbrell. In
his complaint, plaintiff seeks judicial review of an adverse
final decision of the Commissioner of the Social Security
Administration (“the Commissioner”) pursuant to
42 U.S.C. § 405(g). The Court has reviewed the pertinent
record and the parties' briefs.
the duty of the Court to review the decision of the ALJ and
not re-weigh the evidence or substitute its decision for the
ALJ's. In particular, the Court must affirm the ALJ's
decision if it is supported by substantial evidence even if
there is evidence that supports the opposite conclusion. The
Court must also determine whether the ALJ applied the correct
filed an application for a period of disability and
disability insurance benefits alleging disability beginning
on March 2, 2015, the date of a work-related accident.
Plaintiff's claim was initially denied, but he filed a
request for a hearing before an administrative law judge
(“ALJ”), which was held on April 5, 2017. The ALJ
ultimately concluded that plaintiff was not disabled.
not made in an organized fashion, plaintiff appears to argue
that the ALJ did not properly evaluate his subjective
complaints of pain, improperly relied on the opinions of Dr.
Bruce Romeo, and ignored the vocational expert's
testimony with respect to alternate hypotheticals. The Court
will address each contention in turn.
Failure to properly evaluate subjective complaints
Court finds that the ALJ did not fail to properly evaluate
plaintiff's subjective complaints of pain. The ALJ stated
the standard for evaluating subjective complaints of pain in
the Eleventh Circuit. After a review of the relevant medical
evidence, the ALJ then stated that plaintiff's
“descriptions of his impairments and resulting
restrictions fail to establish the presence of objectively
determined medical conditions sufficient to warrant a
conclusion of disability.” (R. 24). While the Court
will not repeat the entirety of that analysis here, it notes
that the ALJ specifically considered plaintiff's
testimony at the hearing. However, the ALJ noted that, while
diagnostic imaging in March 2013 revealed degeneration in the
cervical and lumbar spine, an MRI performed approximately two
years later revealed no greater than a mild disc bulge,
moderate facet hypertrophy at ¶ 5-S1 and only mild
flattening of the exiting L5 nerve, much greater on the
right. The ALJ notes that, following plaintiff's injury
on March 2, 2015, he was prescribed physical therapy, which
he reported to be beneficial.
in terms of plaintiff's alleged right wrist limitation,
plaintiff points out that, on March 21, 2013, a medical
record indicated that plaintiff had restricted abduction in
his right wrist and loss of hypothenar muscles. But the ALJ
noted that plaintiff had no observable abnormalities during
the course of his treatment at Whatley Health Services in
2015 and 2016. The January 20, 2017, consultative examination
revealed that there was no loss of power, muscle atrophy, or
grip strength in the right wrist. (R. 317).
although plaintiff alleges disabling pain, recent treatment
notes indicated that his pain was moderate in severity.
Indeed, plaintiff's treatment has been conservative,
consisting of physical therapy and/or medication. See
Horowitz v. Comm'r of Soc. Sec., 688 Fed.Appx. 855,
863 (11th Cir. 2017) (“ALJs are permitted to consider
the type of a treatment a claimant received in assessing the
credibility of her subjective complaints.”).
Importantly, the ALJ did not ignore plaintiff's
subjective complaints of pain entirely. Rather, the ALJ found
that they were not disabling. The ALJ acknowledged the
diagnostic imaging of plaintiff's cervical and lumbar
spine, as well as complaints of back pain, and found that
plaintiff could not return to his past work. The ALJ then
limited plaintiff to light work, but with occasional stooping
and crouching, no driving, no lower extremity pushing or
pulling, no climbing, and a temperature controlled
environment. In sum, the Court must affirm if the ALJ's
determination is supported by substantial evidence, and the
Court finds that it is here. See Henry v. Comm'r of
Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015)
(“Indeed, ‘[e]ven if the evidence preponderates
against the Commissioner's findings, we must
affirm if the decision reached is supported by substantial
evidence.'”) (internal quotation omitted);
Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995)
(“A clearly articulated credibility finding with
substantial supporting evidence in the record will not be
disturbed by a reviewing court.”). Therefore, the Court
finds no error in the ALJ's evaluation of plaintiff's
subjective complaints of pain.
Improperly relied on opinions of Dr. Bruce Romeo
Romero, in conducting a workman's compensation
examination, assessed plaintiff with lumbar strain and
spondylolisthesis, but put no restrictions on his activity.
The Court finds that the ALJ did not commit error in
considering the opinion of Dr. Romero. For one, the ALJ did
not solely rely on the opinion of Dr. Romeo in his
determination. Second, the ALJ gave good weight to the
opinions of Dr. Romeo because they appeared consistent with
the medical evidence as a whole. Third, the non-controlling
case cited by plaintiff, Garcia v. Colvin, 219
F.Supp.3d 1063, 1074 (D. Colo. 2016), does not stand for the
proposition that the ALJ must ignore the opinion of a medical
source that was rendered in the workman's compensation
context. The court in Garcia noted that the mere
fact that a source, such as a workman's compensation
doctor, is selected does not mean that it should be accorded
less weight. That being said, the court also stated that,
because the workman's compensation process is an
adversarial one, any opinion should be entitled to greater
weight when favorable to the claimant and reviewed more
carefully when unfavorable. Id. Here, Dr. Romeo
recognized plaintiff's back impairment as indicated by
the MRI, but did not recommend any activity restrictions. (R.
252-53). In other words, Dr. Romeo's opinion both
supports plaintiff's allegations, but also appears to be
unfavorable in that he did not impose any work restrictions.
Plaintiff has not shown that the ALJ's consideration of
Dr. Romeo's opinions, both favorable and unfavorable,
were error, especially in light of the ALJ's conclusion
that it was consistent with other medical evidence.
Ignored vocational expert's testimony with respect to
hearing, the ALJ posed several hypotheticals to the
vocational expert, which the vocational expert answered. For
example, the vocational expert testified that occasional
flexion or extending of plaintiff's right wrist would not
permit plaintiff to do any of the jobs the vocational expert
identified. Similarly, the vocational expert testified the
jobs identified by him would be precluded if plaintiff could
only occasionally turn his head left or right and up or down.
Plaintiff, relying on the same testimony and medical records
that he did with respect to the ALJ's evaluation of his
subjective complaints of pain, argues that the ALJ ignored
the vocational expert's testimony on these two points
(right wrist movement and turning of head).
the Court acknowledges the vocational expert's testimony
as pointed out by plaintiff, the ALJ asked many different
hypotheticals to which the vocational expert responded.
Notably, the vocational expert testified that jobs were
available to a person with plaintiff's vocational profile
(age, education, and work experience) and the limitations
included in residual functioning capacity
(“RFC”). The ALJ was permitted to rely on this
testimony as substantial evidence because it included all of
plaintiff's impairments that the ALJ found credible.
See Jones v. Comm'r of Soc. Sec., 423 Fed.Appx.
936, 938 (11th Cir. 2011) (unpublished opinion) (finding that
a vocational expert's testimony will constitute
substantial evidence if the ALJ poses a hypothetical
questions which comprises all of the claimant's
impairments); Jones v. Apfel, 190 F.3d 1224, 1229
(11th Cir. 1999) (“In order for a VE's testimony to
constitute substantial evidence, the ALJ must ...