Opinion
Civil Action No 99-0318-CB-L
June 26, 2000
REPORT AND RECOMMENDATION
The Plaintiff brings this action under 42 U.S.C. § 405 (g) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits.
This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Oral argument was waived (Doc. 13). Therefore, upon consideration of the administrative record and the memoranda of the parties, it is recommended that the decision of the Commissioner be affirmed.
I. Issues on Appeal .
The Plaintiff raised the following argument in her Statement of Issues.
(1) That the ALJ's decision is not supported by substantial evidence.
(2) That the ALJ committed reversible error by rejecting the opinion of the treating physician and relying instead on the opinion of the consulting physician.
II. Background Facts .
Plaintiff was born on December 9, 1948 and was forty-eight years old at the time of the administrative hearing on May 16, 1997 (Tr. 44). She has a twelfth grade education and has past relevant work as an assistant to the operations manager for a transportation company and as a customer service administrator for an insurance company (Tr. 108-109). She alleged a disability onset date of August 15, 1994 due to carpal tunnel syndrome of both hands, arthritis of her hands, fibromyalgia, bursitis of her feet, tendinitis, tarsal tunnel syndrome, plantar fascitis, depression and stress (Tr. 85-113).
The Plaintiff applied for disability insurance benefits on August 29, 1995 alleging onset of disability of August 15, 1994 (Tr. 57-60). Her application was denied initially (Tr. 61-62) and on reconsideration (Tr. 66-75). The hearing before the Administrative Law Judge was held on May 16, 1997 (Tr. 40-55). The ALJ entered a decision on July 25, 1997 (Tr. 18-33) wherein the Plaintiff was found able to perform medium work activity and that she could return to her past relevant work as the assistant to an operations manager and as a customer service administrator, and was therefore, not disabled (Tr. 19). The ALJ found that the Plaintiff had severe fibromyalgia and mild carpal tunnel syndrome by history but that she did not have an impairment or combination of impairments that met or equaled a listed impairment (Tr. 19). On February 26, 1999, the Appeals Council denied the Plaintiff's request for review (Tr. 4-5). Therefore, the hearing decision became the final decision of the Commissioner of Social Security.
III. ALJ Findings
The ALJ made the?following finding, in pertinent part, in regard to Plaintiff's issue on appeal (Tr. 31):
3. The medical evidence establishes that the claimant has severe fibromyalgia, by history, and mild carpal tunnel syndrome, by history, but that she 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.
4. The claimant's allegations of disability are not credible in light of her history of medical treatment, in light of the absence of continuing medical treatment for any underlying impairment or record and in' light of the report from the consulting orthopaedic specialist.
5. The claimant has the residual functional capacity to perform work related activities except for work involving sitting for more than four hours at one time or more than eight hours throughout an eight hour work day, standing for more than four hours at one time or more than eight hours throughout an eight hour work day, walking for more than four hours at one time or for more than eight hours throughout an eight hour work day, lifting objects weighing more than 100 pounds, carrying objects weighing more than 50 pounds, frequently lifting objects weighing more than 50 pounds, frequently carrying objects weighing more than 25 pounds, more than frequently bending, squatting, crawling and climbing, and for more than moderate exposure to unprotected heights.
6. The claimant's past relevant work as an assistant to the operations manager for a transportation company, or as the customer service administrator for an insurance company did not require the performance of work related activities precluded by the above limitation(s).
7. The claimant's impairments does not (sic) prevent the claimant from performing past relevant work.IV. Discussion A. Standard of Review .
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id. at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Powell o/b/o Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir. 1985); Ambers v. Heckler, 736 F.2d 1467, 1469 (11th Cir. 1984). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
C. Medical Evidence
On April 4, 1995, Gino DiVittorio, M.D. initially saw the Plaintiff on referral from David Borcicky, D.P.M. (Tr. 123-130). Dr. Borcicky treated the Plaintiff for her heel spurs, tarsal tunnel syndrome, plantar fasciitis and bursitis of the feet (Tr. 181-184; 197-228). On April 10, 1995, Dr. DiVittorio wrote Dr. Borcicky that his assessment was fibromyalgia. Dr. DiVittorio prescribed Flexeril (Tr. 122). On May 11, 1995, he noted that the Plaintiff had "widespread tender points," "tenderness in the 1st metacarpal joints in both hands," and normal x-rays (Tr. 121). He also noted a long discussion with the Plaintiff in regard to diet and exercise and that he would re-evaluate her in two months or sooner if needed. He prescribed Clinoril (Tr. 121). On July 13, 1995, Dr. DiVittorio noted that her pain continued, mainly in her hands and that the Clinoril did not help. He added a prescription for Ultram and noted that the Plaintiff should return in two months or sooner if needed (Tr. 120). There are no other treatment notes or clinical or laboratory tests from Dr. DiVittorio.
On December 7, 1995, the Plaintiff was initially seen by Lisa Burch, M.D. (Tr. 162-167; 172). Dr. Burch treated the Plaintiff from December 7, 1995 until February 8, 1996 (Tr. 162-167). Dr. Burch noted the past diagnosis of fibromyalgia by Dr. DiVittorio, the past treatment of the Plaintiff's feet by Dr. Joseph Ray (Tr. 133-155, 157) and Dr. Gilbert Holland (Tr. 116-117), her past prescription of Prozac for depression by her gynecologist, and listed her initial assessment of depression, gastroesophageal reflux, elevated blood pressure, fibromyalgia and carpal tunnel syndrome. Dr. Burch changed the Plaintiff from Prozac to Effexor, prescribed Pepcid, and told her to return in a month (Tr. 167). The Plaintiff next saw Dr. Burch on December 28, 1995 for a recheck and an upper respiratory infection. The medication for her gastroesophageal reflux was changed and she was prescribed Ceclor for her infection (Tr. 166). On January 30, 1996, the Plaintiff contacted Dr. Burch's staff with a message from Dr. Ray that he wanted Dr. Burch to manage her pain medication (Tr. 166). The records show that this statement was confirmed by telephone call to Dr. Ray's office on February 5, 1996 (Tr. 166). After her February 8, 1996 visit with Dr. Burch wherein Dr. Burch begins to prescribe pain medication, there are several notations of phone calls to Dr. Burch's staff in regard to medication for her upper respiratory tract infection, cough, and pain (Tr. 165). However, the Plaintiff did not return to Dr. Burch.
On May 1, 1996, Dr. Burch prepared a letter wherein she stated that the Plaintiff had conditions that "may well last a life time" but she had a good prognosis and that "[g]ainful employment in my opinion is not contraindicated" (Tr. 163). Dr. Burch discussed her conditions and referred to the Plaintiff's exam as normal except for obesity. She also stated that she performed no test or x-rays because testing had been done by Dr. Ray and Dr. DiVittorio (Tr. 163).
On May 20, 1996, Dr. Burch prepared a physical capacities evaluation wherein the Plaintiff could sit for four hours at a time and for eight hours in an eight hour workday, stand for two hours at a time and for four hours in an eight hour workday, walk for one hour at a time and for two hours in an eight hour work day, continuously lift and carry up to five pounds, frequently lift up to ten pounds, occasionally carry up to ten pounds, occasionally lift up to twenty-five pounds, but never lift more than twenty-five pounds, and never carry more than ten pounds. The Plaintiff had no restrictions on the use of her hands or legs for repetitive action. She could frequently bend, squat and reach and occasionally crawl or climb. She had no restrictions in regard to unprotected heights, moving machinery, marked changes in temperature and humidity, driving automotive equipment, or exposure to dust, fumes or gases. (Tr. 162).
Dr. Robert A. Kimbrell treated the Plaintiff on May 4, 1994 for a cough (Tr. 191). The medical records indicate telephone calls on July 6, 1994 and August 30, 1994 in regard to refills of Prilosec for her gastroesophageal reflux and polytussin (Tr. 191). There are no records until August 21, 1996 when the Plaintiff was again examined by Dr. Kimbrell. He noted that she had been diagnosed with fibromyalgia about two years prior. He also noted weight gain, gastroesophageal reflux, allergies, current medications of Prilosec, Prozac and Flonase, and that she had taken Relafen, Soma and Flexeril "without much benefit" (Tr. 191). Dr. Kimbrell recommended that she continue her current medications, begin a weight loss program, and noted he would obtain lab data (Tr. 191). She was seen again on September 5, 1996. However, his notations reference only her loss of five pounds, a change in her Estrace by her gynecologist, and instructions to continue diet and medications (Tr. 191). She returned for a follow-up on October 4, 1996. The medical records indicate that she should continue her diet and exercise, continue same medications and return for follow-up. At her November 4, 1996, visit the records indicate that Claritin was added for her sinus, she wanted to try Naprelan, she was still not sleeping and her hands were peeling (Tr. 190). On February 17, 1997, Dr. Kimbrell noted a follow-up for chronic sinus congestion and drainage. He continued the prescriptions for Prilosec and Prozac, changed her diet medication and gave her samples of Allegra for her sinus (Tr. 257). On March 27, 1997, the Plaintiff discussed "her plantar fasciitis, sweating at night, [and] staying tired all the time" (Tr. 257). Dr. Kimbrell refilled her Prilosec, ProFast, Pondimin, Darvocet and Allegra (Tr. 257). On April 21, 1997, he noted her return for a recheck of her sinusitis, fibromyalgia, contact dermatitis and gastroesophageal reflux and noted that her allergies were flaring up, her lungs were clear and that she was "still hurting all over" (Tr. 257). Her medications were refilled, she was changed from Darvocet to Darvon, and instructed to return in one month for a re-check. There are no further medical records from Dr. Kimbrell
On February 10, 1997, Dr. Kimbrell wrote the Plaintiff's attorney in regard to her fibromyalgia (Tr. 232-233). Included in his brief discussion of the disease, Dr. Kimbrell noted the absence of a definitive test for fibromyalgia and that objective medical tests are generally within normal limits. He stated that the Plaintiff was depressed because of her constant pain. In regard to the Plaintiff, he noted as follows:
Specifically, in Ms. Lowell's case, I do not expect her to be able to sit for very long periods of time, to lie down for very long periods of time, to stand for very long periods of time, or to walk for long periods of time. However, activity such as walking and range of motion exercises are recommended for patients who have fibromyalgia syndrome. Basically, this amounts to occupational and physical therapy. I have had the patient under observation and therapy for the illness since 21 August 1996. I expect she will continue to be under therapy for the foreseeable future.
(Tr. 232).
On March 20, 1997, Dr. Kimbrell completed a physical capacities evaluation wherein he found that the Plaintiff could sit, stand or walk for zero hours at one time, sit three hours out of an eight hour day, and stand and walk for one hour combined during an eight hour day. He also found that she could frequently lift up to ten pounds, occasionally lift up to twenty-five pounds but never lift more, and she could occasionally carry up to twenty-five pounds but never carry more. He also found no restrictions on the use of her hands and feet for repetitive motions, and that she could bend, squat, crawl, climb and reach only occasionally. He found no restriction of unprotected heights, moving machinery or exposure to dust, fumes or gases, mild restriction in regard to changes in temperature and humidity and a moderate restriction for driving motor vehicles (Tr. 240).
On January 16, 1997, the Plaintiff was consultatively examined by William A. Crotwell III, M.D. (Tr. 234-236). Dr. Crotwell is a board-certified orthopaedic surgeon (Tr. 237). His examination notes indicate that the Plaintiff related her history of treatment by Dr. Ray, Dr. Kimbrell and Dr. DiVittorio. On physical examination, Dr. Crotwell found as follows:
Lower extermity — DTR's +2 and equal in patella and Achilles. Sensory normal. Motor is 5/5. Toe and heel walk good. Flexion 70-80 with no tenderness or spasm and no straightening. Extension 50 with no tenderness, spasm. Left thigh 19 1/2, right thigh 19 5/8. Left calf 15, right calf 15. Straight leg raise sitting right and left 90 degrees with no radicular pain at all. Upper extremity reflex +2 in biceps, triceps and brachioradialis. Sensory is normal. Motor is 5/5. Grip strength is good. Swept patterns slightly decreased, bilateral thumbs. Range of motion of the neck — flexion, extension and lateral motion is all full. Hands have no abnormalities. There is no synovitis. Wrists are normal with full range of motion. Shoulders have full range of motion normal. Knees with full range of motion normal. Ankles show no obvious abnormalities full range of motion. No swelling, no synovitis.
(Tr. 234). Dr. Crotwell noted his impression of "1. History of mild carpal tunnel syndrome. 2. History of fibromylagia" (Tr. 235).
On January 16, 1997, Dr. Crotwell then completed a physical capacities evaluation wherein he found that the Plaintiff could sit, stand or walk for four hours each at one time, and sit, stand and walk for eight hours each during an eight hour day. He also found that she could continuously lift up to twenty-five pounds, frequently lift fifty pounds and occasionally lift up to one hundred pounds. He found that she could continuously carry up to twenty pounds, frequently carry up to twenty-five pounds, occasionally carry up to fifty pounds but never carry more. He also found no restrictions on the use of her hands and feet for repetitive motions, and that she could frequently bend, squat, crawl, climb and continuously reach. He found a moderate restriction of unprotected heights, a mild restriction around moving machinery and driving automotive equipment and no restriction of changes in temperature and humidity and exposure to dust, fumes or gases (Tr. 236).
D. Plaintiff's Argument
The Plaintiff argues that the decision of the ALJ is not supported by substantial evidence. The ALJ found the Plaintiff had a severe impairment of fibromyalgia and mild carpal tunnel syndrome by history but that she did not meet or equal a listing of impairment. He also found that her impairments restricted her to medium work and that she retained the physical and mental ability to return to her past work as an assistant to an operations manager and as a customer service administrator (Tr. 19, 27). In reaching his decision, the ALJ considered and analyzed the Plaintiff's testimony and statements, and the medical evidence (Tr. 19-28). He also considered the evidence presented in regard to Plaintiff's subjective complaints of pain and fatigue (Tr. 28, 30). Re also considered the weight to be given to the opinion of a Plaintiff's treating physician which is addressed in more detail in the next section of this report and recommendation.
The undersigned has reviewed the decision of the ALJ and the administrative record, including the Plaintiff's testimony (Tr. 42-58), her statements in regard to the duties of her past work (Tr. 110-111) and her medical records including the physical capacities evaluations of Dr. Kimbrell (Doc. 240), Dr. Burch (Doc. 162) and Dr. Crotwell (Doc. 246). The ALJ found that the Plaintiff had the residual functional capacity to perform medium work and that she could return to her past relevant work. The undersigned finds no error with this decision. Plaintiffs description of the basic duties and physical activities of her past relevant work is generally consistent with the physical capacities evaluations of Dr. Burch and Dr. Crotwell. Additionally, while the Plaintiff alleged disability caused in part by bilateral carpal tunnel syndrome, arthritis in both hands, bursitis of her feet, tendinitis, tarsal tunnel syndrome, and plantar fasciitis, neither Dr. Kimbrell, Dr. Burch nor Dr. Crotwell placed any restrictions on the use of her hands and feet.
"Medium work, Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work." 20 C.F.R. § 404.1567 (c).
The undersigned finds that the Commissioner's decision at step four of the evaluation process that the Plaintiff has the residual functional capacity to return to her past relevant work is supported by substantial evidence and that proper legal principles were applied by the ALJ in reaching that determination. As stated herein, this Court's role is a limited one and it may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). Also, as stated herein, substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239.
In support of the argument that the decision of the ALJ was not supported by substantial evidence, the Plaintiff specifically argues that the ALJ erred by rejecting the opinion of her treating physician, Dr. Kimbrell and accepting the opinion of Dr. Crotwell, the consultative examiner.
In general, the Regulations require the ALJ to give more weight to the opinion of the Plaintiff's treating physician because he or she is most able to provide a detailed, longitudinal picture of the Plaintiff's medical impairments and the treating physician" may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527 (d)(2) (1998). However, the treating physician's opinion is not always controlling. Generally, the opinion and examination report of a treating physician are given substantial weight, unless there is good cause to discount. Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986). Good cause to justify discounting a treating physician's opinion exists when the opinion is "not bolstered by the evidence," the evidence "supports a contrary finding," the opinion is "conclusory," "wholly conclusory," or "so brief and conclusory that it lacks persuasive weight," the opinion is "inconsistent with [the treating physician's] own medical records," the treating physician's statement "contains no clinical data or information to support" the opinion, the opinion "is unsubstantiated by any clinical or laboratory findings," or the opinion "is not accompanied by objective medical evidence." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991) ( citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987)); Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). If an ALJ rejects the opinion of a treating physician, the ALJ must give explicit, adequate reasons for so doing, and failure to do so results in the opinion being deemed accepted as true as a matter of law. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). Also, the ALJ may discredit evidence submitted by a treating physician, if the ALJ clearly articulates his reasons. Marbury v. Sullivan, 957 F.2d 837, 841 (11th Cir. 1992).
The ALJ found as follows (Tr. 29):
In response to the report from Dr. Crotwell, counsel submitted contusions (sic) maintaining that the opinion of Dr. Kimbrell should be afforded controlling weight because Dr. Kimbrell was a treating physician and Dr. Crotwell only evaluated the claimant from an orthopaedic standpoint. Counsel noted that in Broughton v. Heckler, 776 F.2d 960 (11th Cir. 1985), the court held that an Administrative Law Judge must accord "substantial" or "considerable" weight to the opinion of a treating physician unless "good cause" is shown to the contrary. In this case, Dr. Kimbrell submitted a physical capacities evaluation form that would restrict the claimant to less than a full range of sedentary work. However, Dr. Kimbrell began treating the claimant in August 1996, and his treatment notes refer to specific complaints related to allergies, sinus difficulties, dermatitis and gastroesophageal reflux. Although Dr. Kimbrell noted that a diagnosis of fibromyalgia had been presented in the past by Dr. Divittorio, the specific notes from Dr. Kimbrell did not identify ongoing treatment for fibromyalgia and the testing obtained by Dr. Kimbrell was within normal limits. Prior to Dr. Kimbrell noting the diagnosis of fibromyalgia, Dr. Burch had treated the claimant and had submitted a physical capacities evaluation form and statements indicating the claimant could engage in sedentary to medium work activities and concluding that the claimant had a good prognosis and that gainful employment was not contraindicated. In light of the relatively brief patient-physician relationship documented in the reports from Dr. Kimbrell, and considering the specific complaints on each occasion that the claimant was treated by Dr. Kimbrell, and considering the qualifications of the Board-certified orthopaedic specialist, and considering the limitations described by the claimant's prior treating physician, Dr. Burch, the Administrative Law Judge finds that the totality of the evidence of record supports the physical restrictions identified by the consulting orthopaedic specialist and that the totality of the evidence establishes substantial good cause for rejecting the severe restrictions indicated by Dr. Kimbrell.
In the section of his opinion wherein the ALJ addressed the Plaintiff's complaints of disabling pain, the ALJ noted that "the evidence refers to a history of a diagnosis of fibromyalgia but the specific treatment notes from Dr. Burch and from Dr. Kimbrell do not refer to continuing complaints of symptoms of fibromyalgia" (Tr. 30). Additionally, the ALJ noted that Dr. Burch found that "employment would not be precluded for the claimant" (Tr. 30) and that "[a]lthough Dr. Kimbrell indicated the claimant would be limited to less than a full range of sedentary work, that conclusion is not supported by the specific office notes from Dr. Kimbrell" (Tr. 30). The ALJ found that the "notes and statements from Dr. Kimbrell do show that exercise programs have been recommended for treatment of the claimant's symptoms" (Tr. 30).
Review of the record shows that Dr. Kimbrell's medical records do not produce a detailed, longitudinal picture of his treatment of Plaintiff's disabling condition of fibromyalgia as anticipated by the regulations. As the ALJ found, Dr. Kimbrell saw the Plaintiff a limited number of times and the focus of his treatment appeared to be other medical problems rather than fibromyalgia. Review of Dr. Kimbrell's records show only two mentions of fibromyalgia. Additionally, as the ALJ found, Dr. Kimbrell states that the Plaintiff should participate in physical and occupational therapy and exercise which is inconsistent with his physical capacities evaluation wherein he found that the Plaintiff can do little more than recline at all times (Tr. 232-233; 240).
Review of the ALJ's decision shows that he relied upon the physical capacities evaluation of Dr. Crotwell and Dr. Burch, and his review of the records of Dr. DiVittorio (Tr. 26-27). As herein discussed, the evaluations by Dr. Crotwell and Dr. Burch indicate that the Plaintiff is capable of sedentary to medium work and thus capable of returning to her past relevant work. The ALJ specifically noted that Dr. Crotwell is a board-certified orthopaedic surgeon and that he found "very little orthopaedic problems" (Tr. 27). The Plaintiff has argued that it was error for the ALJ to rely upon this orthopaedic evaluation because fibromyalgia is a rheumatoid condition. However, the ALJ also referenced the evaluation of the Dr. Burch, the Plaintiff's internal medicine physician prior to Dr. Kimbrell which indicated that the Plaintiff could perform sedentary to medium work and Dr. Burch's statement that she believed that the Plaintiff could work (Tr. 26-27). Also, the ALJ noted that "although Dr. DiVittorio diagnosed fibromyalgia, specific treatment was not provided by any of the claimant's physicians" (Tr. 27).
Review of Dr. Burch's physical capacities evaluation indicates that the Plaintiff could perform sedentary work to light work reduced by an inability to carry more than ten pounds rather than sedentary to medium. However, the description of the Plaintiff's past relevant work is generally consistent with Dr. Burch's physical capacities evaluation (Tr. 110-111; 162).
Upon consideration of the foregoing, the undersigned finds that the ALJ did not err in rejecting the opinion of the treating physician and relying upon the opinions of Dr. Burch and Dr. Crotwell and the absence of any continuing treatment records for fibromyalgia. The undersigned further finds that the ALJ stated adequate and specific reasons for rejecting the opinion of the treating physician, that good cause existed to reject the opinion, and that substantial evidence supports the decision that the Plaintiff could return to her past relevant work.
V. Conclusion
For the reasons set forth, and upon consideration of the administrative record, the hearing decision and the memoranda of the parties, it is recommended that the decision of the Commissioner denying the Plaintiff's claim for disability insurance benefits be affirmed.