Opinion
CIVIL ACTION 15-0513-WS-M
04-28-2016
TONJA CARSTARPHEN, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff, who is proceeding pro se, seeks judicial review of an adverse social security ruling which denied claims for disability insurance benefits and Supplemental Security Income (hereinafter SSI). The action was referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72, and S.D.Ala. Gen.L.R. 72. Oral argument was heard on April 26, 2016. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is recommended that the decision of the Commissioner be affirmed, that this action be dismissed, and that judgment be entered in favor of Defendant Michael J. Astrue and against Plaintiff Tonja Carstarphen.
This Court is not free to reweigh the evidence or substitute its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported by evidence sufficient to justify a reasoning mind in accepting it; it is more than a scintilla, but less than a preponderance." Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).
At the time of the administrative hearing, Carstarphen was thirty-eight years old, had completed some college coursework (Tr. 30-31), and had previous work experience as a certified nurse assistant, information clerk, and cashier (Tr. 30, 52). In claiming benefits, Plaintiff alleges disability due to hypothyroidism, a stroke, sleep apnea, arthritis, asthma, high blood pressure, diabetes, and a herniated disc (Doc. 13).
The Plaintiff filed applications for disability benefits and SSI on June 11, 2012, asserting a disability onset date of January 1, 2011 (Tr. 9, 142-56). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that although Carstarphen was unable to perform her past work, there were specific light jobs that she could perform (Tr. 9-20). Plaintiff requested review of the hearing decision (Tr. 5) by the Appeals Council, but it was denied (Tr. 1-3).
Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Carstarphen alleges that: (1) The ALJ did not properly consider the conclusions of her treating physician; (2) the ALJ did not consider all of her impairments; (3) the ALJ did not properly consider her pain; and (4) she is unable to work (Doc. 13). Defendant has responded to—and denies—these claims (Doc. 14). The relevant evidence of record follows.
At oral argument before the Court, Carstarphen mentioned that one of her doctors had re-evaluated her pain, provided a new diagnosis, and prescribed a different medication regimen since the ALJ's decision was entered. The Court informed Plaintiff that it could only consider the evidence that had been reviewed by the ALJ for purposes of this action, but that she could file a new application for benefits with the Social Security Administration.
Evidence that precedes Plaintiff's asserted date of disability will not be included within this summary.
On June 1, 2011, Carstarphen was examined at Franklin Primary Health Center (hereinafter Franklin) for bilateral hip pain, radiating into both knees and ankles; for her diagnoses of arthralgia and fatigue, Flexeril and Ultram were prescribed (Tr. 270-71). On June 17, 2011, Plaintiff was examined for persistent left hip pain that she rated as eight on a ten-point scale (Tr. 274-75). Plaintiff reported that she had lost fifty pounds over the prior year with exercise and diet. The Doctor diagnosed her to have hypothyroidism, borderline blood pressure, left hip pain, obesity, and vitamin D deficiency and prescribed Naproxen and Flexeril. On August 23, Carstarphen was seen for a sore throat; she indicated that she was compliant with her hypothyroidism medications (Tr. 268-69). Plaintiff was placed on a low fat, low cholesterol diet.
Flexeril is used along with "rest and physical therapy for relief of muscle spasm associated with acute, painful musculoskeletal conditions." Physician's Desk Reference 1455-57 (48th ed. 1994).
Ultram is an analgesic "indicated for the management of moderate to moderately severe pain." Physician's Desk Reference 2218 (54th ed. 2000).
Naprosyn, or Naproxyn, "is a nonsteroidal anti-inflammatory drug with analgesic and antipyretic properties" used, inter alia, for the relief of mild to moderate pain. Physician's Desk Reference 2458 (52nd ed. 1998).
On November 11, Dr. Cynthia R. Crowder, who specializes in pulmonary and critical care medicine, examined Carstarphen for six months of insomnia and follow-up of her sleep apnea; Plaintiff admitted her diet was irregular, that she was no longer exercising, and that she had gained twenty-two pounds (Tr. 294-95, 342-46). Carstarphen reported that she was not using her CPAP and was progressively fatigued; Crowder stressed that she begin exercising again and prescribed Elavil. On February 8, 2012, the Doctor noted that Plaintiff had lost twelve pounds through diet but was still not sleeping well and anxious; Crowder suggested the cause may be the appetite suppressants that she was taking (Tr. 291-92). On July 2, Carstarphen reported that she was not using the CPAP, opting for increased exercise though her weight was up twenty-four pounds; she complained of increased fatigue and sleepiness (Tr. 288-90). The Doctor encouraged her to exercise and noted that the fatigue could be related to hypothyroidism.
Amitriptyline, marketed as Elavil, is used to treat the symptoms of depression. Physician's Desk Reference 3163 (52nd ed. 1998).
On September 29, at the request of the Social Security Administration (hereinafter SSA), Dr. Celtin Robertson, an Internist, examined Carstarphen who complained of back pain at level ten and a history of a herniated disc (Tr. 303-06, 350-52). The Doctor noted normal gait and that Plaintiff could toe and heel walk and squat and rise; he noted no back tenderness. Motor strength was 5/5 in all muscle groups; no range of motion (hereinafter ROM) limitations were noted. Robertson's diagnosis was "[l]ower back pain as per claimant" (Tr. 306).
On October 11, an MRI of the cervical spine revealed the following:
1. Posterior and left paracentral disc herniation with possible adjacent disc fragment at the C6-7 level. There is moderate AP and left lateral recess narrowing.(Tr. 307). An MRI of the lumbar spine revealed as follows:
2. Broad disc protrusion with moderate to severe AP and mild bilateral foraminal encroachment at C5-6.
3. Disc bulge with mild AP stenosis at C3-4 and left paracentral disc bulge/pro-trusion with moderate AP stenosis at C4-5.
1. Minimal disc bulging with left foraminal encroachment at L5-S1, L4-5, and bilateral minimal foraminal encroachment at the L2-3 level.(Tr. 308).
2. No evidence of disc herniation or central canal stenosis at any lumbar level.
On October 12, 2012, Dr. Edward M. Schnitzer, with the Coastal Neurological Institute, examined Plaintiff for complaints of lumbar spine pain, radiating into her legs; pain, rated at seven-to-ten, was worse when walking (Tr. 427-32). On examination, testing for straight leg raise was negative bilaterally; heel and toe walking were normal bilaterally. The Doctor performed tests indicating that Carstarphen had: (1) normal NCV of her lower extremities bilaterally; (2) decreased volition and effort due to discomfort on EMG testing; and (3) no evidence of active lumbar radiculopathy (Tr. 423-26).
On October 18, 2012, Dr. Crowder noted that Carstarphen had gained thirty pounds since the previous visit; she was not exercising secondary to chronic back pain and was fatigued (Tr. 317-18). Plaintiff reported using her CPAP only eleven of the prior 434 days. The Doctor noted back pain, joint swelling, and arthralgias as well as edema.
On October 15, Franklin records report Carstarphen's complaints of edema in both legs and pain at level ten; the Doctor noted that her musculoskeletal/back examination was within normal limits (Tr. 323-24). On November 20, still complaining of level-ten pain, she was told to work on her diet.
On November 1, Carstarphen began twelve sessions of physical therapy for her lower back at Springhill Medical Center through December 20 (Tr. 434-47). During that treatment, she became able to stand more upright for long periods, her mobility improved, she could bend and reach with less difficulty, and her pain decreased.
On November 27, Plaintiff complained of pain in the low back and into the lower extremities bilaterally to Dr. Schnitzer; physical therapy did not seem to be helping with the pain (Tr. 418-22). Carstarphen was taking her pain medications only on weekends because it made her sleepy; she was not exercising. The Doctor noted normal gait and full strength in the lower extremities; he encouraged exercise and prescribed Ultram. On January 15, 2013, Carstarphen complained of low back, bilateral leg, and neck pain; she also complained of chest pain, fatigue, and shortness of breath with exertion (Tr. 413-17). Plaintiff reported walking and that there were no side effects from her medications. Schnitzer noted bilateral paraspinal tightness; gait was normal and strength was full in all extremities.
On December 20, 2012, Franklin records show Carstarphen reporting abdominal and back pain, a recent asthma attack, and a loss of five pounds; Dr. Parven Akhter noted no cervical, thoracic, or lumbar spine tenderness with normal mobility and curvature (Tr. 338-41). She had no edema. On January 22, 2013, Plaintiff's weight had increased; the record said that she had no history of hypertension (Tr. 335-37). On examination, Plaintiff had normal ROM, muscle strength, and stability in all extremities with no pain on inspection. On February 22, Carstarphen reported no back or joint pain; Dr. Akhter noted no neurological sensory loss (Tr. 330-33). On March 22, Plaintiff complained of pain in her upper, middle, and lower back, radiating to her thighs, calves, and feet bilaterally; she was exercising and watching her diet and had lost three pounds (Tr. 326-29).
A chest x-ray on March 16, 2013 was unremarkable (Tr. 325).
On April 11, Dr. Schnitzer reported Carstarphen's complaints of low back and bilateral leg pain; she said the Ultram was not working (Tr. 408-12). The Spurling Maneuver was positive centrally, even with non-physiologic pressure; strength was 4+-5/5, diffusely, bilaterally in upper and lower extremities. The Doctor prescribed Medrol and Lortab after diagnosing Plaintiff to have cervical stenosis.
A Medrol Dosepak (methylprednisolone) is a steroid that prevents the release of substances in the body that cause inflammation. See http://www.drugs.com/mtm/medrol-dosepak.html
Lortab is a semisynthetic narcotic analgesic used for "the relief of moderate to moderately severe pain." Physician's Desk Reference 2926-27 (52nd ed. 1998).
On April 22, Dr. Akhter noted no complaints of back pain, joint pain, joint swelling, or muscle weakness; Carstarphen stated her pain was at level seven (Tr. 373-76). The Doctor's assessment was chronic, morbid obesity.
On May 15, Dr. Crowder noted that Carstarphen had gained twenty-two pounds and was tired and sleepy; she was noncompliant with using her CPAP as she had only recently began to use it (Tr. 380-82). The Doctor noted that Plaintiff was engaging in only limited exercise though she needed to walk/bike at least thirty minutes daily; she had lower back pain with overall degenerative changes in her lumbar. Lortab was prescribed.
On May 22, 2013, Carstarphen saw Dr. Schnitzer, complaining of low back and neck pain, radiating into her arms and legs (Tr. 404-07). On June 11, 2013, EMG and NCV testing demonstrated mild bilateral carpal tunnel syndrome and chronic right C6-8 radiculopathy, but no evidence of acute cervical radiculopathy (Tr. 397-403). On June 19, Plaintiff complained of persistent aching lumbar pain, though the Lortab helped; Dr. Schnitzer noted normal gait and full strength in the lower extremities (Tr. 393-96). Carstarphen was walking some, but her Doctor told her to continue home exercise.
On September 11, Dr. Akhter noted that Plaintiff had lost twelve pounds by eating healthier and exercising; she had been turned down for gastric bypass surgery (Tr. 369-72). Carstarphen rated her pain at zero.
On September 18, Plaintiff saw Dr. Schnitzer for low back pain, muscle weakness, loss of strength, and muscle aches; she took Lortab on only a limited basis because she could not function during the day if she took them (Tr. 389-92). On November 6, Carstarphen complained of neck and low back pain (Tr. 384-88). Dr. Schnitzer found bilateral trapezius tightness; the Spurling Maneuver was negative. The Doctor prescribed Zanaflex, Norco, and Lortab.
Zanaflax "is a short-acting drug for the acute and intermittent management of increased muscle tone associated with spasticity." Physician's Desk Reference 3204 (52nd ed. 1998).
Norco is an opioid pain medication used to relieve moderate to severe pain. See http://www.drugs.com/norco.html
On November 6, 2013, Dr. Akhter completed a form stating that he had treated Plaintiff for thirteen months for lumbar, bilateral wrist, and bilateral leg pain (Tr. 353). He had diagnosed her to have lumbar spine degenerative disc disease, carpal tunnel syndrome, sciatica, and chronic pain. The Doctor noted that physical activity would cause some increase in her symptoms, but not to such an extent as to prevent adequate functioning. Akhter finally stated that Carstarphen was capable of gainful employment at a sedentary or light level for forty hours a week.
On November 11, Dr. Akhter noted Plaintiff's complaints of knee pain, worse on the right; she rated her pain at zero (Tr. 361-64). Musculoskeletal examination revealed full ROM but severe crepitation; the lumbar spine and both knees were normal. Neurontin was prescribed. X-rays of Carstarphen's knees were negative (Tr. 357). On November 25, Plaintiff complained of back and joint pain; there was tenderness in the lumbar spine (Tr. 354-56).
Neurontin is used in the treatment of partial seizures. Physician's Desk Reference 2110-13 (52nd ed. 1998).
On November 20, 2013, Plaintiff admitted to Dr. Crowder that she was noncompliant with using her CPAP over the previous four months; she still felt tired and fatigued (Tr. 377-79). Carstarphen had started walking and had lost twenty-seven pounds. Mild depression was noted.
On January 19, 2014, Plaintiff was admitted to Springhill Medical Center for three nights for chest pain and shortness of breath for the previous two weeks; she also had a moderate headache with blurry vision (Tr. 448-80; 481-514). An MRI of the brain showed an old right corpora striatum infarct (Tr. 452); a chest x-ray was normal (Tr. 453). A CT scan demonstrated evidence of an old, and non-acute, cerebrovascular accident (Tr. 474). An echocardiogram found no aortic insufficiency, normal systolic function, and no significant valvular heart disease (Tr. 458-59). A cardiac catheterization demonstrated normal coronary anatomy, normal left ventricular systolic and diastolic function, and normal valvular function (Tr. 471-72). The final diagnosis was that Carstarphen had suffered a trans-ischemic attack and accelerated hypertension (Tr. 473). Plaintiff was discharged home in good condition.
On March 27, Dr. Akhter wrote a letter saying that Plaintiff was "unable to work due multiple [sic] illnesses and a stroke that she had January 19, 2014" (Tr. 515).
At the evidentiary hearing, Carstarphen testified that she had attended college classes for one semester but she dropped out because of her back pain and her need to care for a disabled child (Tr. 34-35). She attempted to get gastric bypass surgery because her weight was very hard on her back, but she was not approved; though she was now healthier, she has not lost the weight (Tr. 36-37). Plaintiff had problems with her neck and back, all the way down; she had two herniated discs (Tr. 37-38). Carpal tunnel caused her hands and arms to go numb for which she wore braces at night (Tr. 38, 42). Carstarphen's pain was intolerable at a level ten, even with Lortab and a muscle relaxer (Tr. 38). Though she had been diagnosed to be diabetic, she took no insulin or medication (Tr. 39). Plaintiff had asthma and used an inhaler once or twice a day and slept with a CPAP; she took two different hypertension medications (Tr. 39). She had recently had to go to the hospital for high blood pressure and blurred vision; though it was initially thought that she had had a stroke, that was not the case (Tr. 39-41). Carstarphen was the primary caregiver of her three children who were 10, 11, and 14; she had taught them to cook, clean, and wash and they did that for her regularly (Tr. 42-43, 45). Plaintiff's children helped her clothe herself; she had been so weak lately that she had not been able to prepare her own meals (Tr. 43, 45-46). Carstarphen stated that she could only lift one-to-two pounds because anything more than that triggered pain in her back; she could sit, stand, and walk, each, for ten-to-fifteen minutes at a time (Tr. 47-48). Plaintiff grocery-shopped one day a month, but her children picked up everything for her; she also went to church and could drive (Tr. 49).
This concludes the Court's summary of the medical evidence.
In bringing this action, Carstarphen first claims that the ALJ did not properly consider the conclusions of her treating physician (Doc. 13). Though Plaintiff does not name the doctor, the Court understands her to be referring to her doctor at Franklin Primary Health Center, Dr. Parven Akhter. The Court notes that "although the opinion of an examining physician is generally entitled to more weight than the opinion of a non- examining physician, the ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion." Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981); see also 20 C.F.R. § 404.1527 (2015).
The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. --------
In her determination, the ALJ gave little weight to Dr. Akhter's opinion that Carstarphen was disabled, finding it unsupported by his own treatment records "which generally show no abnormal physical findings related to the spine and primarily note findings of obesity with fluctuating weights with a need for gastric bypass surgery" (Tr. 16). The ALJ went on to note that the Doctor's findings demonstrated "no abnormal neurological deficits, a normal gait, and normal mobility" (Tr. 16). Finally, the ALJ noted that the record did not support his assertion that Carstarphen had had a stroke.
The Court finds substantial support for the ALJ's rejection of Dr. Akhter's conclusions, noting that the other evidence of record fails to support a finding of disability either. The Court further notes that the Doctor, just five months before pronouncing her disabled, stated his opinion that Plaintiff was capable of performing, at least, sedentary or light work (see Tr. 353). Carstarphen's claim that the ALJ improperly discounted the conclusions of her treating physician is without merit.
Plaintiff next claims that the ALJ did not consider all of her impairments. She specifically asserts that the ALJ overlooked her hypothyroidism, stroke, sleep apnea, arthritis in the spine, asthma, high blood pressure, and diabetes (Doc. 13).
The Court first notes that the ALJ specifically found that Plaintiff had the following severe impairments: "cervical disc herniation with stenosis, cervical degenerative disc disease, lumbar minimal disc bulge at L4-5 and L5-S1, lumbar radiculopathy, diabetes mellitus, neuropathy, asthma, sleep apnea, hypertension, bilateral carpal tunnel syndrome, and obesity" (Tr. 12). This finding belies Carstarphen's assertion as to most of her impairments.
Plaintiff does raise concerns over several impairments that the ALJ did not find severe. Specifically, while her hypothyroidism was not found to be a severe impairment, the ALJ discussed it and ultimately found it to be well-controlled (Tr. 13, 14, 16). The ALJ rejected Carstarphen's assertion of a stroke, a finding consistent with statements made by her former attorney (Tr. 15, 40-41). And, finally, though the ALJ did not specifically find that Plaintiff had arthritis in her spine, he did find stenosis, degenerative disc disease, a disc bulge, radiculopathy, and neuropathy as severe impairments.
Though Plaintiff does not specifically raise the issue, the Court notes that "the Secretary shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity." 42 U.S.C. § 423(d)(2)(C). The Eleventh Circuit Court of Appeals has noted this instruction and further found that "[i]t is the duty of the administrative law judge to make specific and well-articulated findings as to the effect of the combination of impairments and to decide whether the combined impairments cause the claimant to be disabled." Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984), see also Reeves v. Heckler, 734 F.2d 519 (11th Cir. 1984), Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir. 1982).
In the ALJ's findings, she lists Carstarphen's impairments and concludes by saying that "[t]he claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)" (Tr. 12). This language has been upheld by the Eleventh Circuit Court of Appeals as sufficient consideration of the effects of the combinations of a claimant's impairments. Jones v. Department of Health and Human Services, 941 F.2d 1529, 1533 (11th Cir. 1991) (the claimant does not have "an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4"). The Court finds that the ALJ has properly considered Carstarphen's impairments, both singly and in combination.
Plaintiff next claims that the ALJ did not properly consider her pain (Doc. 13). The standard by which complaints of pain are to be evaluated 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." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). The Eleventh Circuit Court of Appeals has also held that the determination of whether objective medical impairments could reasonably be expected to produce the pain was a factual question to be made by the Secretary and, therefore, "subject only to limited review in the courts to ensure that the finding is supported by substantial evidence." Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986). Furthermore, the Social Security regulations specifically state the following:
statements about your pain or other symptoms will not alone establish that you are disabled, there must be medical signs and laboratory findings which show that you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all of the other evidence (including statements about the intensity and persistence of your pain or other symptoms which may reasonably be accepted as consistent with the medical signs and laboratory findings), would lead to a conclusion that you are disabled.20 C.F.R. 404.1529(a) (2015).
In her determination, the ALJ found that although Carstarphen suffered impairments, her "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible" (Tr. 13). As reasons for this conclusion, the ALJ first noted that the objective medical evidence did not support her allegations (Tr. 16). The ALJ then noted that the assessments of Drs. Crowder and Akhter, her treating physicians, as well as that of the consultative examiner, were all fairly benign (Tr. 16). Next, the ALJ pointed out that her treatment was conservative, noting that Carstarphen did not take narcotic medications through the week as she was able to limit the pain with over-the-counter medications (Tr. 16). The ALJ found most of her impairments were stable and well-controlled, in spite of her non-compliance with certain treatment recommendations (Tr. 16-17). Finally, the ALJ pointed to Plaintiff's activities of daily living and work history as a basis for denying the extreme limitations asserted (Tr. 17). The Court finds substantial evidence to support the ALJ's conclusions in this claim.
In her last claim, Carstarphen asserts that she is unable to work (Doc. 13). The Court notes that "[t]he [Residual Functional Capacity (hereinafter RFC)] assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities." Social Security Ruling 96-8p, Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184, *3. The ALJ is responsible for determining a claimant's RFC. 20 C.F.R. § 404.1546 (2015). That decision cannot be based on "sit and squirm" jurisprudence. Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984). However, the Court also notes that the social security regulations state that Plaintiff is responsible for providing evidence from which the ALJ can make an RFC determination. 20 C.F.R. § 404.1545(a)(3).
The ALJ found that Carstarphen had the RFC
[t]o perform a reduced range of light work (20 CFR 404.1567(b) and 416.967(b)). That is, the claimant is able to lift and carry 10 pounds frequently and 20 pounds occasionally; sit, stand, and walk for a total of 6 hours each during an 8-hour workday; frequently use the upper and lower extremities to push and pull; frequently balance, stoop, kneel, crouch, crawl and climb ramps and stairs; precluded from climbing ladders, ropes, and scaffolds; frequently reach overhead; frequently handle, finger, and feel; no exposure to extreme heat and cold; no exposure to vibrations; no work around pulmonary irritants; no work around unprotected heights or dangerous machinery; and able to sustain concentration and attention for 2-hour periods secondary to complaints of musculoskeletal pain.(Tr. 12). In her decision, the ALJ noted that Dr. Schnitzer found that she could work (Tr. 15). The Court further notes that Plaintiff's treating physician, Dr. Akhter, found that she could work before finding that she could not work (Tr. 353; cf. Tr. 515). The ALJ rejected the latter conclusion, a finding this Court found was supported by substantial evidence. Finally, a Vocational Expert testified, based on evidence presented by the ALJ, that Plaintiff could work, performing specific light work jobs (Tr. 19). The Court finds that Carstarphen has not demonstrated any error in the ALJ's conclusion that she is able to work.
Plaintiff has raised four different claims in this action. All are without merit. Upon consideration of the entire record, the Court finds "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401. Therefore, it is recommended that the Secretary's decision be affirmed, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), that this action be dismissed, and that judgment be entered in favor of Defendant Carolyn W. Colvin and against Plaintiff Tonja Carstarphen.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 7(c). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
DONE this 28th day of April, 2016.
s/ BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE