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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

THOMAS CASSIDY,

Plaintiff,

vs. Case No. 5:10cv212/RH/EMT

MICHAEL J. ASTRUE,

Commissioner of the 

Social Security Administration,

Defendant.

______________________________/

ORDER, REPORT AND RECOMMENDATION

This case has been referred to the undersigned magistrate judge pursuant to the authority of

28 U.S.C. § 636(b) and Local Rules 72.1(A), 72.2(D) and 72.3 of this court relating to review of

administrative determinations under the Social Security Act (“Act”) and related statutes, 42 U.S.C.

§ 401, et seq. It is now before the court pursuant to 42 U.S.C. § 405(g) of the Act for review of a

final determination of the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s

application for disability insurance benefits (“DIB”) under Title II of the Act, 42 U.S.C. §§ 401–34.

Upon review of the record before this court, it is the opinion of the undersigned that the

findings of fact and determinations of the Commissioner are supported by substantial evidence; thus,

the decision of the Commissioner should be affirmed.

I. PROCEDURAL HISTORY 

Plaintiff protectively filed an application for DIB on March 1, 2005, and alleged disability

beginning October 11, 2001 (Tr. 12).1

 His application was denied initially and on reconsideration

1 All references to “Tr.” refer to the transcript of Social Security Administration record filed on November 17,

2010 (Doc. 14). If a cited page has more than one page number, the court cites to the “Bates stamp” page number that

appears at the top right of the page.

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(id.). Plaintiff requested a hearing before an administrative law judge (“ALJ”), and following a

hearing held July 16, 2008, the ALJ issued a decision in which he found Plaintiff “not disabled”

under the Act (Tr. 12–21). The Appeals Council of the Social Security Administration denied

Plaintiff’s request for review (Tr. 4–6). Thus, the decision of the ALJ stands as the final decision

of the Commissioner, now subject to review in this court. Ingram v. Comm’r of Soc. Sec. Admin.,

496 F.3d 1253, 1262 (11th Cir. 2007); Falge v. Apfel, 150 F.3d 1320 (11th Cir. 1998). This appeal

followed.

II. FINDINGS OF THE ALJ 

In a decision issued on September 3, 2008, the ALJ made several findings relative to the

issues raised in this appeal (Tr. 12–21): 

1) Plaintiff is insured under the Act through December 31, 2006.2

2) Plaintiff did not engage in substantial gainful activity during the relevant time frame. 

3) Plaintiff has the following severe impairments: degenerative disc disease (“DDD”)

of the lumbar spine and cervical spine, back pain, status post cervical sprain/strain,

status post right shoulder rotator cuff tendonitis, status post right rotator cuff

impingement with right shoulder pain, status post arthroscopy and subacromial

decompression of the right shoulder, status post kidney stones, and status post

adjustment disorder with depressed mood.

4) Plaintiff’s impairments, alone or in combination, do not meet or medically equal one

of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

5) Plaintiff has the following residual functional capacity (“RFC”). He can sit, stand,

or walk six hours; lift twenty pounds occasionally and up to ten pounds frequently;

balance and climb ramps or stairs frequently; kneel, crouch, crawl, stoop, and reach

overhead occasionally; and handle, finger, feel, see, and communicate limitlessly. 

He cannot work at unprotected heights or around dangerous machinery; he cannot

climb ladders, ropes, or scaffolds; and he is limited to low level semi-skilled to

unskilled occupations (secondary to adjustment disorder).

6) Plaintiff cannot perform any past relevant work and has no skills that transfer within

his RFC.

2 Thus, the time frame relevant to this appeal is October 11, 2001 (alleged onset) to December 31, 2006 (date

last insured).

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7) Considering Plaintiff’s age, education, work experience, and RFC, Plaintiff is not

disabled because he has work skills from past relevant work that are transferable to

other occupations with jobs existing in significant numbers in the national economy.

III. STANDARD OF REVIEW

Review of the Commissioner’s final decision is limited to determining whether the decision

is supported by substantial evidence from the record and was a result of the application of proper

legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) (“[T]his Court may

reverse the decision of the [Commissioner] only when convinced that it is not supported by

substantial evidence or that proper legal standards were not applied.”); see also Lewis v. Callahan,

125 F.3d 1436, 1439 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A

determination that is supported by substantial evidence may be meaningless . . . if it is coupled with

or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),

superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214

(11th Cir. 1991). As long as proper legal standards were applied, the Commissioner’s decision will

not be disturbed if in light of the record as a whole the decision appears to be supported by

substantial evidence. 42 U.S.C. § 405(g); Falge, 150 F.3d at 1322; Lewis, 125 F.3d at 1439; Foote

v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a scintilla, but

not a preponderance; it is “such relevant evidence as a reasonable person would accept as adequate

to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.

2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L.

Ed. 126 (1938)); Lewis, 125 F.3d at 1439. The court may not decide the facts anew, reweigh the 

evidence, or substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d

1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates against the

Commissioner’s decision, the decision must be affirmed if supported by substantial evidence. 

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

The Act defines a disability as an “inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which can be expected to result

in death or which has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A). To qualify as a disability the physical or mental impairment

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must be so severe that the claimant is not only unable to do his previous work, “but cannot,

considering his age, education, and work experience, engage in any other kind of substantial gainful

work which exists in the national economy.” Id. § 423(d)(2)(A).

Pursuant to 20 C.F.R. § 404.1520(a)–(g), the Commissioner analyzes a disability claim in

five steps: 

1. If the claimant is performing substantial gainful activity, he is not disabled.

2. If the claimant is not performing substantial gainful activity, his impairments must

be severe before he can be found disabled.

3. If the claimant is not performing substantial gainful activity and he has severe

impairments that have lasted or are expected to last for a continuous period of at least twelve

months, and if his impairments meet or medically equal the criteria of any impairment listed in 20

C.F.R. Part 404, Subpart P, Appendix 1, the claimant is presumed disabled without further inquiry.

4. If the claimant’s impairments do not prevent him from doing his past relevant work,

he is not disabled.

5. Even if the claimant’s impairments prevent him from performing his past relevant

work, if other work exists in significant numbers in the national economy that accommodates his

residual functional capacity and vocational factors, he is not disabled.

The claimant bears the burden of establishing a severe impairment that keeps him from

performing his past work. 20 C.F.R. § 404.1512. If the claimant establishes such an impairment,

the burden shifts to the Commissioner at step five to show the existence of other jobs in the national

economy which, given the claimant’s impairments, the claimant can perform. MacGregor v. Bowen,

786 F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner carries this burden, the claimant must

then prove he cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d

1007, 1011 (11th Cir. 1987).

IV. RELEVANT BACKGROUND INFORMATION

A. Plaintiff’s Personal History

Plaintiff was born in May 1956, and he attended school through the eleventh grade (Tr. 83,

106, 209). He previously worked as a general mechanic and automotive electrician (Tr. 200–01,

256–57). Plaintiff alleges disability beginning October 11, 2001, due in large part to a work-related

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accident that injured his right arm and two subsequent automobile accidents that injured his back

(see Tr. 17). Plaintiff alleges that as a result of all three accidents he cannot lift more than ten

pounds, has limited movement and use of the right shoulder, and has constant back pain that radiates

down his legs and affects his ability to sit, stand, walk, and drive (Tr. 17, 200, 244–45). 

B. Plaintiff’s Medical History3

Plaintiff was injured at work on October 4, 2001, while moving a 300-pound motor with a

co-worker (Tr. 17). He presented to an emergency room and reported experiencing a “sudden,

tearing, burning type sensation in the right elbow” and right elbow pain (Tr. 538). X-rays were

obtained, which revealed a “normal” right elbow (id.).

On October 11, 2001, Plaintiff was evaluated by Christo W. Koulisis, M.D., in connection

with the elbow injury and related workers compensation claim (Tr. 363). Although Plaintiff

presented with multiple complaints, including complaints of right arm, elbow, knee, and forearm

pain, as well as “multiple joint complaints,” Dr. Koulisis noted that the only symptoms attributable

to Plaintiff’s injury at work were those related to his right arm (see id.). Within about a month of

the injury, on November 9, 2001, Dr. Koulisis opined that Plaintiff could return to work with a fortypound weight restriction (Tr. 537). Within about two months, on or about December 14, 2001, Dr.

Koulisis diagnosed “elbow strain,” determined Plaintiff had reached maximum medical

improvement (“MMI”), and discharged Plaintiff from treatment with a 0% impairment rating and

no work restrictions (Tr. 363, 537).

Plaintiff sought treatment for his elbow from Steven S. Donchey, M.D., beginning in

February 2002 (see Tr. 537, 718). Dr. Donchey initially assessed right medial epicondylitis (“tennis

elbow”4

) and right shoulder rotator cuff tendinitis and chronic subacromial bursitis, rule out possible

tear (see Tr. 717–18). He advised Plaintiff to begin physical therapy (“PT”) and prescribed Celebrex

(Tr. 718). 

3

 The following review of Plaintiff’s medical records is quite extensive. The court feels compelled to discuss

the medical record at such length, in effect to conduct a complete de novo review of the ALJ’s decision, for two reasons. 

First, Plaintiff’s counsel, David Evans, declined to participate in the administrative hearing in this case. Second,

although he initiated this case and filed a memorandum in support of his position while still a member in good standing

of the Florida Bar, Mr. Evans currently is under suspension from the practice of law. Both circumstances are discussed

in greater detail infra.

4 See, e.g., http://www.nlm.nih.gov/medlineplus/ency/article/000449.htm (last visited August 9, 2011).

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Plaintiff obtained an MRI of the right shoulder on March 4, 2002, which revealed an

essentially “normal shoulder” with no tears but some osteoarthritis, tendinitis, and bursitis (Tr. 360,

720–21). Three days later Plaintiff returned to Dr. Donchey (Tr. 716). Dr. Donchey noted that

Plaintiff had no elbow pain and was “doing quite well with his elbow,” although he complained of

shoulder pain with overhead reaching or sleeping on his right side (id.).

Plaintiff was involved in a motor vehicle accident (“MVA”) on or about April 13, 2002, and

he presented to the North Okaloosa Medical Center (“NOMC”) with complaints of back pain and

mild neck pain radiating to both shoulders (Tr. 361, 542). X-rays of the shoulders were normal,

while x-rays of the cervical spine revealed some narrowing at C6-C7 (Tr. 361, 732–34). Plaintiff

was discharged with a prescription for Motrin and referred to his family physician (Tr. 543, 730).

Plaintiff returned to Dr. Donchey on April 23, 2002, and Dr. Donchey noted that Plaintiff’s

elbow pain had resolved and that Plaintiff had been “doing well” until the April 13 MVA (Tr. 362,

715). Dr. Donchey noted Plaintiff’s treatment at the NOMC and commented that the MVA may

have exacerbated the right elbow injury; he also noted that Plaintiff was somewhat limited in straight

leg raising on the right (Tr. 362, 715). In May 2002, Dr. Donchey assessed lumbosacral sprainstrain (rule out herniated nucleus pulposus), cervical sprain, trapezius myofascitis, intrascapular

myofascitis, posterior tension headaches, trochanteric bursitis in the hip (improved), and medial

epicondylitis (improved) (Tr. 714). 

A lumbar MRI obtained on June 3, 2002, revealed disc protrusion at L5-S1 with mild

impingement on the thecal sac and moderate impingement at the right nerve root, moderate loss of

height and signal intensity at L5-S1, and slight posterior annulus bulging at L4-L5 without

impingement on the thecal sac or nerve roots (Tr. 719).

Upon referral from Dr. Donchey, Plaintiff saw a pain management physician, Frank Zondlo,

M.D., on July 3, 2002 (Tr. 707). Dr. Zondlo assessed “probable right L5 radiculopathy” and

administered a right L5 transforaminal epidural steroid injection (Tr. 703–04). After the injection

Dr. Zondlo noted that Plaintiff exhibited full strength in the right foot dorsiflexors and could heel

walk without difficulty (Tr. 708). He also stated that Plaintiff’s back pain was resolved, Plaintiff

had no tenderness to palpation, and Plaintiff estimated pain relief at “80–90%” (id.). 

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On July 15, 2002, Plaintiff apparently presented to Deshar Lutfi., M.D., with complaints of

back pain and radiating and migraine-producing neck pain, as well as shoulder stiffness and hand

numbness (see Tr. 359 (notation made by another physician in a November 2004 summary of

Plaintiff’s previous treatment)). In July 2003, Dr. Lufti observed “electrodiagnostic evidence of

moderate right carpal tunnel syndrome [but] the rest of the study, including right upper arm and both

legs, electrically, was negative” (id.). 

On July 17, 2002, Plaintiff returned to Dr. Zondlo, who noted that upon examination Plaintiff

exhibited “complete return of sensation and strength [in the L5 area] with only minimal tenderness

in the L5 paraspinal muscles” (Tr. 701). Thus, Dr. Zondlo commented, the steroid injection at L5

had provided good, prolonged relief (see Tr. 699). Also on July 17, Dr. Zondlo administered

diagnostic fluoroscopic injections at C4, C5, and C6, which caused some stiffness in the neck but

produced good pain relief immediately following the procedure; moreover, Plaintiff’s neck was

described as non-tender in all areas except at the injection sites (see Tr. 701–02). Plaintiff was

advised to return for follow-up in about two weeks (Tr. 702). Plaintiff returned on August 1, 2002,

and reported that his cervical pain was “basically unchanged,” that the cervical diagnostic injections

provided only minimal relief and, “in fact,” that his pain was “basically the same degree on his drive

home” following the cervical injections on July 17 (Tr. 700). Dr. Zondlo recommended a cervical

MRI in order to properly evaluate Plaintiff’s condition (see id.).

A cervical MRI was obtained on August 29, 2002, which revealed mild disc degeneration

at C5-C6 (with a moderate but wide left posterior disc herniation that represents “at least protrusion”

and causes a slight deformity of the left anterior margin of the cord); mild disc degeneration at C5-

C6 (“with small and wide combination of disc protrusion and sondylitic ridge” that causes some

crowding of the cord and mild narrowing of the left foramen); a “quite small” left posterior disc

bulge at C7-T1, without cord deformity; and a small posterocentral disc protrusion at C4-C5,

without cord deformity or impingement (Tr. 359, 547–48, 699).

Plaintiff returned to Dr. Zondlo on September 11, 2002, after Dr. Zondlo had reviewed the

cervical MRI results (Tr. 699). Plaintiff reported low back pain that was more severe than his neck

pain (id.). Upon examination of the neck, Plaintiff reported some paraspinal muscle tenderness on

the right at C5-C6, and he exhibited a mildly limited neck range of motion but no sensory deficit,

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weakness, or reflex dropout (id.). Dr. Zondlo mentioned the possibility of right C6 radiculopathy,

noting that Plaintiff exhibited some “patchy sensory deficit” at C6 during the August 1 examination,

although he exhibited no such deficit during the September 11 examination (see Tr. 699–700). 

Examination of the back on September 11 produced more positive findings than did examination

of the neck (see Tr. 699). Dr. Zondlo diagnosed right L4 radiculopathy and administered an epidural

steroid injection at L4 (since, Dr. Zondlo noted, the same injection at L5 had been so successful)

(id.). After the injection Dr. Zondlo noted that Plaintiff exhibited full strength in the right foot

dorsiflexors, the L4 paraspinal muscles were non-tender to palpation, sensation in the L4 dermatome

was intact, and straight leg raising was performed without pain, although Plaintiff reported pain in

the right hip, lateral thigh, and superior knee (Tr. 698). Plaintiff returned to Dr. Zondlo on October

2, 2002 (Tr. 696). Dr. Zondlo’s report suggests that the injection at L4 was successful, but he noted

that Plaintiff complained of right hip, thigh, and knee pain (id.). Dr. Zondlo surmised that Plaintiff

was likely experiencing some residual L5 radiculopathy, and he advised Plaintiff to return in two

weeks for another injection at L5 (he noted that during the first injection at L5 the nerve root was

not in optimal view) (see id.). Dr. Zondlo advised Plaintiff to refrain from work for two weeks (i.e.,

between October 2, 2002, and the date he was supposed to return for the second injection at L5)

(id.).

On October 17, 2002, Plaintiff returned to Dr. Donchey (Tr. 711). Plaintiff reported that the

injections provided no significant improvement for his neck or low back (id.). He also reported

persistent right shoulder pain (id.). An examination of the shoulder and elbow revealed normal

alignment and contour (id.). Range of motion in the shoulder was decreased, but it was normal in

the wrist and elbow (id.). Dr. Donchey noted that Plaintiff’s shoulder MRI was negative, and he

prescribed anti-imflammatory medication and PT (Tr. 362). In November 2002, Dr. Donchey

reported he had treated Plaintiff for both the work injury and the April 2002 MVA, that the same

shoulder was injured in both incidents, and he reiterated that Plaintiff had been doing well with the

elbow condition between the incidents although he was not convinced the shoulder fully healed in

the interim (id.). Dr. Donchey also stated that Plaintiff’s elbow, cervical spine, and lumbosacral

conditions were worse as a result of the MVA (id.).

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In January 2003, Mark M. Williams, M.D., conducted an independent medical examination

related to Plaintiff’s on-the-job injury (Tr. 536, 630–36). Dr. Williams opined that Plaintiff’s

shoulder injury had healed and that Plaintiff subsequently re-injured his shoulder in the April 2002

MVA (see Tr. 536, 631). He suggested that the elbow injury had not fully healed before the MVA,

and that surgery for both the elbow and shoulder might be appropriate (see Tr. 630). Finally, Dr.

Williams opined that Plaintiff could return to work as long as he avoided overhead activity with the

right upper extremity, lifting more than twenty pounds, hammering, and vigorous pulling or

wrenching (id.)

Plaintiff occasionally saw Thomas Fox, D.O., in 2003 for treatment related to his right elbow

and shoulder. Dr. Fox’s treatment notes reflect, essentially, his belief that Plaintiff injured both his

elbow and shoulder in the work-related incident and that by March 2003 neither had healed (see Tr.

588). In one treatment note, dated March 17, 2003, Dr. Fox stated that both shoulder and elbow

surgery were recommended/warranted, but in a treatment note dated two months later he stated that

surgery was warranted only for the shoulder and not the elbow (see Tr. 588, 587). Regardless, the

treatment notes reflect Dr. Fox’s belief that Plaintiff was capable of light duty work in 2003 (see,

e.g., Tr. 588).5

Plaintiff was treated at Flowers Hospital following a second MVA on July 12, 2003. Steven

Fernandez, M.D., described as “negative” x-rays of Plaintiff’s shoulder, cervical spine, and lumbar

spine (Tr. 360). Plaintiff was discharged with prescriptions for Motrin and a cervical collar (Tr.

550). A cervical MRI, obtained July 18, 2003, revealed no substantial change since the August 2002

MRI (Tr. 359, 519, 546). A lumbar MRI, obtained July 26, 2003, revealed mild degenerative facet

disease, mild hypertrophy, mild bilateral narrowing of the lateral recess at L4-L5, and mild disc

degeneration at L5-S1 and T11-T12, but no evidence of lumbar disc herniation (Tr. 359, 519, 545).

On July 31, 2003, Plaintiff presented to R. Barry Lurate, M.D., in connection with his

workers compensation claim (Tr. 538). Plaintiff advised Dr. Lurate that his elbow pain has “done

5 Dr. Donchey, who is apparently Dr. Fox’s partner (see, e.g., Tr. 585), also believed Plaintiff was capable of

work. Specifically, Dr. Donchey opined on November 21, 2002, that Plaintiff was capable of performing light duty work

and, similarly, opined on February 27, 2003, that Plaintiff could work as long as he did not lift more than ten pounds with

the right hand or flex or extend the wrist (Tr. 589, 710).

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nothing but persist since [the on-the-job accident in October 2001] with no signs of improvement

now nearly two years later” (id.). He also reported unresolved shoulder pain related to the job

accident that is exacerbated with use the shoulder (id.). Plaintiff exhibited a diminished range of

motion in the shoulder (apparently, due to “guarding”) and neck, but full range of motion in the

elbow (Tr. 536). Dr. Lurate’s impressions were chronic medial epicodylitis in the right elbow

(related to the on-the-job injury), likely capable of surgical resolution, and chronic right shoulder

pain (likely related, initially, to the on-the-job accident but exacerbated by “the MVA” (it is unclear

whether Dr. Lurate is referring the first or second MVA)) (see Tr. 535). Dr. Lurate recommended

arthroscopic shoulder surgery (Tr. 535–36). 

Plaintiff presented to Stuart Steiger, D.C., on August 11, 2003, and reported he had been “in

his usual state of health until being involved in a [MVA] on July 12, 2003” (see Tr. 359). Plaintiff

noted that following the first MVA his neck pain “had resolved,” and although he experienced low

back pain after the first MVA it was “not constant” and no longer radiated into the right leg (id.).

Plaintiff reported that at present, however (i.e., following the second MVA), his symptoms were

“much worse,” including those related to his neck, upper back, and left upper extremity (id.). 

Chiropractor Steiger treated Plaintiff from the initial visit in August 2003, through January 26,

2004.6

 On the last visit Plaintiff reported continued symptoms with “mild increased pain to his neck

and upper shoulder regions,” as well as pain in his back and legs (Tr. 360). On the same day

Chiropractor Steiger observed “no problems . . . as [Plaintiff] moved about the office,” although

Plaintiff displayed a moderately to severely restricted range of motion in the shoulder and some

limited mobility in the cervical, thoracic, and lumbar areas of the spine (id.).

X-rays obtained on August 18, 2003, revealed mild disc degeneration at C6-C7, mild

thoracic spondylosis, and mild disc degeneration at L5, S1 (Tr. 522–25).

On November 19, 2003, Plaintiff underwent right shoulder arthroscopy with decompression

for rotator cuff impingement (see Tr. 568, 574, 582). Plaintiff developed moderate stiffness and

continued to complain of pain after the surgery (Tr. 568, 574). He was referred to PT, and after a

time Dr. Fox concluded that Plaintiff was not making significant progress (see Tr. 568, 574). Dr.

6 As discussed more fully infra, Plaintiff returned to Dr. Steiger on one occasion in February 2005 (Tr. 446).

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Fox therefore recommended that Plaintiff undergo right shoulder manipulation under anesthesia, and

the manipulation was performed on April 7, 2004 (see Tr. 568, 574).

Plaintiff returned to Dr. Fox for follow-up on April 21, 2004. Dr. Fox noted that Plaintiff’s

right shoulder abduction was “much improved,” and flexion and extension were “also improved,”

although Plaintiff’s rotation was moderately restricted (Tr. 567). Plaintiff had no subjective

complaints of pain (id.). In May 2004, Dr. Fox assessed “status post [right shoulder] manipulation

under anesthesia for chronic right shoulder pain and stiffness,” and he opined that Plaintiff had

reached MMI for the shoulder (Tr. 558). He assessed a 5% impairment rating, recommended

vocational rehabilitation, and opined that Plaintiff could likely perform light duty work (id.).

On November 10, 2004, Plaintiff was examined by John C. Warburton, M.D., at the request

of Plaintiff’s automobile insurance carrier (Tr. 328, 355–65). It appears that Dr. Warburton was

asked to determine the extent to which each MVA contributed to Plaintiff’s current condition. Thus,

the examination focused on Plaintiff’s lumbar and cervical spine, as opposed to his right arm,

although Dr. Warburton extensively reviewed all of Plaintiff’s past relevant medical records and

MRIs (see Tr. 358–63). Dr. Warburton made following observations and conclusions:

(1) Cervical Spine (Tr. 356, 358) 

• Plaintiff walked with some difficulty on the toes and heels, “asserting that

this is the cause of his pain”

• Although Plaintiff displayed some discomfort in the lower posterior area

of the neck and some limitation and discomfort at the extremes of motion, he

exhibited “no tenderness to speak of,” tightness, or spasm

• Plaintiff displayed full muscle strength (described as “5/5”) “from the

shoulder down”

• Plaintiff’s reflexes were equal and essentially normal (“1+”), and sensation

was intact

• Plaintiff displayed limited ranges of motion

(2) Lumbar Spine (Tr. 357–58)

• Plaintiff walked with some difficulty, asserting he “was having too much

pain to walk on his toes and less so on his heels”

• Plaintiff was tender and had poor musculature in the low back at the right

sacroiliac area, and compression and rotation testing in the same area

produced pain

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• Plaintiff had full muscle strength “from the hips down,” knee and ankle

jerks were 1+ and equal, plantar responses were normal (downgoing), and no

clonus was present

• Plaintiff displayed limited ranges of motion

• Straight leg raising was positive in a recumbent position at 65 degrees,

bilaterally, with low back discomfort, but was negative at 85 degrees in a

sitting position

Dr. Warburton diagnosed DDD of the cervical and lumbar spine (Tr. 358). He noted that

Plaintiff generally had the same complaints following the first and second MVAs and that MRIs

following the second MVA were not materially different from those following the first MVA (Tr.

363). He also noted that Plaintiff was not seeing a physician for his lumbar and cervical issues

between the two MVAs, but rather was receiving care from Dr. Fox for the work-related injury at

that time; thus, it was difficult to assess Plaintiff’s physical capacities during the interval (id.). 

Notwithstanding, Dr. Warburton opined, the medical records do not substantiate “a continued

significant disability or pain issue” during the interval because such issues would be reflected in Dr.

Fox’s treatment notes (Tr. 364). Dr. Warburton then opined that two-thirds of Plaintiff’s present

condition is attributable to the second MVA, and one-third is attributable the first MVA. He

assessed Plaintiff with a 16% impairment of the whole person, with 5% resulting from the first

MVA, and 11% resulting from the second. He assessed no impairment resulting from the workrelated injury and stated Plaintiff had no pre-existing impairment prior to the first MVA (364–65).

Plaintiff returned to Chiropractor Steiger in February 2005 for one visit, primarily to obtain

a letter “for the food stamp office regarding his ability to work” (Tr. 328, 446). A neurological

examination was normal. Additionally, Plaintiff walked without assistance (even though he

presented using a cane), his gait was normal, he had no limp, and he was able to tandem walk (Tr.

329). The Romberg’s test was negative, all reflexes tested were normal, sensation in the upper and

lower extremities was “without any significant deficit,” and Plaintiff had normal muscle strength

in all major muscle groups of the upper and lower extremities (id.). Plaintiff exhibited some trigger

point, muscle, and joint tenderness, and he displayed some limited range of motion in the shoulders,

greater on the right (Tr. 330). Straight leg raising tests were negative for radicular components,

although Plaintiff complained of low back pain at 50 to 60 degrees forward elevation and back pain

during several of the other tests (see Tr. 331). Chiropractor Steiger noted that his findings upon

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examination were consistent with “pathomechanical joint dysfunction,” degenerative joint disease,

chronic myofascial findings, and multiple area musculoskeletal complaints (id.).

On May 27, 2005, Plaintiff presented to Efiong Andem, M.D. (Tr. 435). Dr. Andem

observed that Plaintiff walked and sat without difficulty, and his physical examination in most areas

tested was essentially normal (e.g., Dr. Andem noted full range of motion in the elbows, wrists,

hands, hips, knees, ankles, great toes, neck and arms, as well as normal muscle bulk, strength

(including grip strength), fine manipulation, neuropsychological abilities, hearing abilities,

push/pull abilities, and ability to change positions) (Tr. 436–37, 439–41). Plaintiff exhibited some

deficits, including limited ranges of motion in the cervical spine, lumbar spine, shoulders and right

leg, as well as positive straight leg raising tests due to back pain (Tr. 436–37, 439). Dr. Andem’s

relevant diagnoses or “impressions” were all based on Plaintiff’s reports (see Tr. 437 (e.g., “chronic

right shoulder pain in patient’s own words”)) (emphasis added), and he offered no opinions

regarding Plaintiff’s physical capacities. 

On November 3, 2005, Plaintiff underwent an independent medical examination by Jerold

A. Derkaz, M.D., a family practitioner (Tr. 398). The results of Plaintiff’s examination were normal

in most areas tested, including his neurological system and extremities, and Plaintiff displayed full

ranges of motion in the shoulders, hands, fingers, hips, knees, wrists, great toes, and ankles, with no

swelling, tenderness, or crepitations (Tr. 399–401, 403–04). The only abnormalities detected upon

examination were reduced grip strength (although Plaintiff was able to turn a door knob and button

and unbutton a shirt) and back limitations (id.). Specifically, with regard to Plaintiff’s back, Dr.

Derkaz observed a decreased range of motion in the lumbar and cervical spine, as well as tenderness

to palpation, an inability to squat, difficulty getting on and off the examination table, an unsteady

gait, an inability to tandem walk or heel and toe walk, and positive straight leg raising tests “sitting

and supine at 60N

 right and left” (Tr. 400). In relevant part, Dr. Derkaz summarized his findings and

recommendation as follows:

[Plaintiff] shows a decrease in [range of motion] during exam today. He complains

of complete hearing loss in the right ear. He had no difficulty with conversation

during the exam. He is currently not under the care of a physician or taking any

medications due to finances. . . . With exam findings and MRI documentation I

would restrict him as follows: no overhead work, no repetitive pushing, pulling,

bending, squatting, no kneeling, no crawling, no prolonged sitting or standing.

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(Tr. 401).

Finally, the record contains four physical RFC assessments, completed at various times by

four different non-examining agency physicians, each of whom opined that Plaintiff is capable of

at least light work7

 (see Tr. 390–97, 423–30, 638–45, 688–95).

C. Plaintiff’s Administrative Hearing

Plaintiff’s first hearing was scheduled for September 12, 2007, during which the ALJ

intended to solicit expert telephonic testimony from a medical expert, Bruce Witkind, M.D., who

is a board certified neurosurgeon and spine specialist (Tr. 774). On the same day Plaintiff’s counsel

(David Evans) submitted numerous additional exhibits that the ALJ admitted into evidence (see id.). 

Attorney Evans then objected to Dr. Witkind testifying that day, asserting that before he testified

he needed to review the additional evidence he (Attorney Evans) had just submitted (see Tr. 17,

774–75).8

 The ALJ expressed frustration over the situation, which was caused by Attorney Evans’

failure to timely submit the additional exhibits, and the ALJ essentially overruled Attorney Evans’

objection and attempted to start the hearing by telephoning Dr. Witkind (see Tr. 775). When

reached by phone, however, Dr. Witkind indicated he had not been notified of the hearing and had

not reviewed any of Plaintiff’s records (Tr. 776). The hearing was therefore continued to March 11,

2008. When the parties reconvened on March 11, Attorney Evans again presented new evidence to

the ALJ, which might have again been problematic in light of Dr. Witkind’s inability to timely

review the evidence, but the hearing had to be continued regardless because the ALJ was ill (see Tr.

12). Thus, the parties convened for a third time, on July 16, 2008, and a hearing commenced (id.). 

The transcript of the July 2008 hearing begins with a notation that Plaintiff is not present and

that his attorney, David Evans, was present but left before the hearing started and, therefore, waived

his right to cross-examine Dr. Witkind and the Vocational Expert (“VE”) (Tr. 787). The transcript

also reflects that Attorney Evans was specifically advised by the ALJ that if he left, his right to

cross- examine the witnesses would be waived (see Tr. 787–88). The transcript further reflects that

7 See 20 C.F.R. § 404.1567(b) (“Light work involves lifting no more than 20 pounds at a time with frequent

lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this

category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some

pushing and pulling of arm or leg controls.”).

8 Attorney Evans stated no objection to Dr. Witkind testifying by phone.

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the hearing then began—and was conducted in its entirety—without Plaintiff or his counsel present.9

(1) Summary of Dr. Witkind’s Relevant Testimony and Opinions

Dr. Witkind testified first and discussed the February 2002 diagnoses related to Plaintiff’s

right elbow. He characterized the elbow conditions as “mild,” including the epicondylitis (which,

according to Dr. Witkind, normally resolves quickly and appears to have done so in Plaintiff’s case)

(see Tr. 794–95). He also noted the March 2002 MRI of the right shoulder, which revealed arthritis

and tendinitis, and he stated that these conditions resolved with arthoscopic surgery (Tr. 795). 

Dr. Witkind discussed the June 2002 lumbar MRI, which—as noted supra—revealed disc

protrusion at L5-S1 with mild impingement on the thecal sac and nerve roots (Tr. 793 (referencing

Tr. 719)). Dr. Witkind opined that this MRI was of “no real significance in lumbar pathology”

because the record establishes that the impingement resolved. Dr. Witkind also explained that no

other MRI, including the more recent lumbar MRI from July 2003, revealed any impingement or

9 In the ALJ’s decision, he provides additional information about the hearing:

The claimant is represented by David E. Evans, an attorney. At the time the [July

16, 2008] hearing was ready to proceed, Mr. Evans indicated that he had sent the

claimant home because the hearing was beginning more than an hour late[] . . . . 

The undersigned [ALJ] notes that the reason for this delay was because the prior

scheduled hearing, which was also a case being handled by Mr. Evans, took longer

than expected because of the testimony of two medical experts. The undersigned

notes that Mr. Evans had abandoned the prior hearing as well because the

undersigned refused to order a consultative examination that Mr. Evans felt was

necessary and [he] refused to continue the case for such examination. Mr. Evans

left the hearing room even before the instant hearing could be started. The . . .

reason given by the attorney for the claimant and the attorney failing to attend the

[instant] hearing is not . . . a valid reason. The undersigned would take note of the

fact that this legal representative has a long standing history of engaging in similar

behavior if he fails to get his way. The fact that the claimant’s hearing was starting

late is simply not a valid reason for telling that claimant to go home and then

leaving the hearing site. Mr. Evans is aware of these facts but often conducts

himself much like a small child who feels justified in throwing a tantrum if he does

not get his way. It is indeed unfortunate that his clients are often the ones having

to suffer for his completely unprofessional behavior to the extent that they are not

allowed to participate in the hearing and offer testimony.

(Tr. 12) (emphases omitted). As noted supra, after Plaintiff and the Commissioner submitted memoranda in support of

their positions in this case (docs. 20, 23), Attorney Evans was suspended from the practice of law for ninety-days, as

evidenced by other filings in this court (see, e.g., Jones v. Astrue, No. 5:11cv47/RS/EMT (doc. 16)) and information

available on the Florida Bar’s website. Thus, the undersigned will order that a copy of this Report be provided to Todd

Brister, the attorney handling Attorney Evans’ affairs during the term of his suspension (id. at doc. 18).

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root involvement (see Tr. 793–94, 799). Additionally, he referenced Plaintiff’s negative straight leg

raising test (while sitting) when examined by Dr. Warburton in November 2004, and stated that the

negative results are inconsistent with any impingement (see Tr. 799). Dr. Witkind stated clearly that

Plaintiff has no lumbar radiculopathy or any “neuro deformity” (see Tr. 794, 796). Dr. Witkind also

discussed the August 2002 cervical MRI and noted that it revealed some deformity on the left

anterior margin of the cord (Tr. 797). However, Dr. Witkind opined, this finding “may not mean

much clinically” because it is inconsistent with Plaintiff’s reported problems on his right side (Tr.

797). In explaining the foregoing opinion, Dr. Witkind stated that Plaintiff’s cervical degeneration

is “on the wrong side,” that is, Plaintiff complained of right-sided pain and symptoms, but his

complaints do not correlate with MRI findings or neurologic tests (Tr. 801). In sum, Dr. Witkind

acknowledged that Plaintiff has cervical and lumbar DDD, but he stated that both conditions are

mild and require no surgical intervention (Tr. 801–02).

Dr. Witkind considered Plaintiff’s examination by Dr. Warburton in November 2004 (Tr.

799). He testified that Dr. Warburton documented no neurologic abnormality, and Dr. Witkind

opined that Plaintiff’s performance on Dr. Warburton’s straight leg raising test indicates symptom

magnification (see Tr. 799). He further testified that Dr. Warburton’s lumber spine examination was

normal, and he opined that there were no “other objective findings on examination . . . of any

significance” (Tr. 799). He agreed with Dr. Warburton’s diagnosis of “muscular ligamentous with

sprain/strain” but noted that the condition is transient (Tr. 802).

Dr. Witkind also discussed Plaintiff’s treatment by Chiropractor Steiger. In relevant part he

noted that Plaintiff presented to Steiger in February 2005 using a cane, but without a cane he could

tandem walk and his gait was normal (Tr. 792). Thus, Dr. Witkind suggested, Plaintiff exaggerated

his symptoms since a cane was not necessary (see id.). Similarly, Dr. Witkind noted an entry in

Chiropractor Steiger’s records reflecting Plaintiff’s score of “22 out of 24” on a disability

assessment (Tr. 798). This score, Dr. Witkind opined, clearly indicates symptom magnification

because such a score would render a person “bed-bound” (id.).

Dr. Witkind next discussed the examination and findings by Dr. Derkaz in November 2005

(Tr. 800). He testified that the findings were of no real significance since no neurologic deficits

were detected, the examination was not actually conducted by Dr. Derkaz, and the findings “do[]n’t

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make very much sense” (Tr. 800–01). Additionally, Dr. Witkind appears to suggest that certain

findings were based on Plaintiff’s subjective complaints (i.e., “tenderness”), as opposed to objective

medical evidence (see Tr. 801).

Dr. Witkind testified that he is familiar with Social Security Regulations, including the

listing of impairments, and he opined that none of Plaintiff’s impairments meet or equal a listed

impairment (Tr. 790, 803). He noted that Plaintiff’s right shoulder impingement equates to a “five

percent impairment rating,” and he opined that Plaintiff is capable of performing light work (Tr.

803). More specifically, Dr. Witkind opined that Plaintiff can lift twenty pounds occasionally and

ten pounds frequently with both arms; push or pull up to twenty pounds with both arms; stand and

walk six hours a day; sit without limitation; frequently balance and climb ramps and stairs; never

climb ladders, ropes or scaffolds; occasionally kneel, crouch, crawl and stoop; and perform fingering

and fine manipulation without limitation (Tr. 803–05). Dr. Witkind added that Plaintiff should not

reach overhead with either arm, but he can frequently reach in other directions, such as forward or

sideways (Tr. 805–06). Finally, he stated that Plaintiff has no environmental limitations other than

the need to avoid work at unprotected heights (Tr. 806–07).

(2) Summary of the Testimony of VE Robert Strader

VE Strader characterized Plaintiff’s past relevant work as an auto mechanic as skilled work

that is generally performed at a medium level of exertion (but “medium to heavy” as described by

Plaintiff), and his past work as an electrician as “skilled” and “medium” (Tr. 810). VE Strader

testified that he listened to Dr. Witkind’s testimony and, considering the physical capacities assessed

by Dr. Witkind, there are jobs available that Plaintiff can perform, including cashier II, hand packer,

security guard, and ticket taker (Tr. 811–13). VE Strader stated that each of those four jobs are

“light” jobs that can be performed within the restrictions assessed by Dr. Witkind (id.).

V. DISCUSSION

Plaintiff contends the ALJ erred by taking Dr. Witkind’s testimony over the phone, instead

of in-person or by video teleconferencing. He also contends the ALJ erred by relying “completely

on consultative examiner Dr. Witkind” and failing to consider the opinions of other treating

physicians that limit or preclude Plaintiff from work (Doc. 20 at 2) (emphasis added).

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Before addressing Plaintiff’s contentions, the undersigned notes that Plaintiff is mistaken in

his characterization of Dr. Witkind as a consultative “examiner.” Dr. Witkind did not examine

Plaintiff. The distinction is important because, as this court is well aware, different weight is

assigned to the opinions of examining and non-examining sources. See 20 C.F.R. § 404.1527(d)(1)

(the Commissioner will generally “give more weight to the opinion of a source who has examined

you than to the opinion of a source who has not examined you.”). Similarly, greater weight is

generally assigned to the opinions of treating sources, but “[c]ontrolling weight cannot be given to

a treating source’s medical opinion unless the opinion is well-supported by medically acceptable

clinical and laboratory diagnostic techniques.” Social Security Ruling (“SSR”) 96-2p, 1996 WL

374188, at *5 (July 2, 1996). Consequently, an ALJ must have “an understanding of the clinical

signs and laboratory findings and what they signify.” Id.

In a complex case such as this, which involves conflicting medical opinions, conflicting

medical evidence, and numerous records related to three separate accidents, an ALJ may employ a

medical expert (“ME”) to assist in understanding the evidence. See 20 C.F.R. § 404.1527(f)(2)(iii)

(expressly permitting an ALJ to secure the services of a ME to review the evidence and render an

opinion as to the nature and severity of a claimant’s impairments and whether those impairments

meet or equal any listings); HALLEX I-2-5-34, 1994 WL 637370 (Sept. 28, 2005) (a ME may also

be employed, among other reasons, to: (a) explain, clarify, or help resolve conflicting or confusing

medical evidence, (b) explain the significance of clinical or laboratory findings, (c) assist the ALJ

in determining a claimant’s RFC, or (d) explain the etiology or course of a disease and how it may

affect a claimant’s ability to engage in work activities at pertinent points in time).10 Thus, in this

case the ALJ properly exercised his discretion in securing the services of Dr. Witkind, a nonexamining medical expert.

A. Telephonic Testimony

Plaintiff’s first contention, that the ALJ erred in obtaining Dr. Witkind’s testimony by phone,

is wholly without merit. First, as Plaintiff acknowledges, HALLEX I-2-5-30, 1994 WL 637367

10 The Hearings, Appeals and Litigation Law Manual (“HALLEX”) is a policy manual written by the Social

Security Administration to provide policy and procedural guidelines to ALJs and other staff members. See Moore v.

Apfel, 216 F.3d 864, 868 (9th Cir. 2000). 

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(Sept. 28, 2005) specifically provides for medical expert or vocational expert testimony via

telephone or video teleconferencing (see Doc. 20 at 19–20). The same HALLEX provision also

states that written interrogatories may be submitted to an ME, although the “preferred method for

obtaining ME or VE opinion is through in-person testimony or testimony taken via telephone or

video teleconference at a hearing.” HALLEX I-2-5-30 (emphasis added). Second, Plaintiff’s

counsel stated no objection to the ALJ’s course of action, even though counsel was aware at three

different hearings that the ALJ intended to solicit Dr. Witkind’s testimony by phone. Third, counsel

voluntarily chose to absent himself from the hearing at which Dr. Witkind testified and,

correspondingly, voluntarily chose to give up his right to cross-examine him, so it matters not how

his testimony was obtained. Stated another way, the primary benefit of in-person testimony is the

ability to observe demeanor, which assists in making credibility determinations, but Plaintiff did not

challenge Dr. Witkind’s credibility so he has no basis on which to claim error. Fourth, although the

Regulations apparently make no mention of telephonic testimony, see, e.g., 20 C.F.R. §§ 404.936(c),

404.950(a) (discussing in-person testimony or testimony via video teleconferencing only), they do

not prohibit telephonic testimony. See also Hepp v. Astrue, 511 F.3d 798, 805–06 (8th Cir. 2008)

(“[W]e do not believe that, in a non-adversarial proceeding, an in-person cross-examination would

significantly increase the accuracy of determining a witness’s credibility over that of a telephone

cross-examination. Additionally, an in-person cross-examination requirement would increase

substantially the administrative costs and likely reduce the willingness of physicians to participate

as consultative examiners.”). 

B. ALJ’s Assigning Full Weight to the Opinions of Dr. Witkind 

Plaintiff also contends the ALJ erred by relying exclusively on Dr. Witkind’s opinions

instead of other opinions in the record that restricted or precluded Plaintiff from work.

SSR 96-6p provides that “[f]indings of fact made by State agency medical . . . consultants

and other program physicians . . . regarding the nature and severity of an individual’s impairment(s)

must be treated as expert opinion evidence of non-examining sources . . . .” SSR 96-69, 1996 WL

37418 (July 2, 1996). The Ruling indicates that the medical opinions of such consultants must be

considered, and it states that “State agency medical . . . consultants are highly qualified physicians

. . . who are experts in the evaluation of the medical issues in disability claims under the Act.” The

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opinions of non-examining medical sources, “when contrary to those of examining [sources], are

entitled to little weight in a disability case, and standing alone do not constitute substantial

evidence.”11 Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987). However, the ALJ may rely

on opinions of non-examining sources when they do not conflict with those of examining sources.

Edwards v. Sullivan, 937 F.2d 580, 584–85 (11th Cir. 1991). Additionally, where the ALJ has

discounted the opinion of an examining source properly, the ALJ may rely on the contrary opinions

of non-examining sources. See Milner v. Barnhart, 275 Fed. Appx. 947 (11th Cir. 2008)

(unpublished opinion) (where ALJ rejected conflicting opinion of onetime examining physician

properly, ALJ did not err by giving substantial weight to the opinions of non-examining

psychologists); Wainwright v. Comm’r of Soc. Sec. Admin., 2007 WL 708971, No. 06-15638 (11th

Cir. 2007) (unpublished opinion) (where ALJ rejected examining psychologist’s opinion properly,

the ALJ was entitled to rely on the opinions of non-examining state agency psychologists). 

Here, a review of the ALJ’s decision shows that he was aware of and discussed various

medical records in Plaintiff’s file, including MRI-related records and some of the treatment records

of Dr. Zondlo, Dr. Williams, Dr. Fox, Chiropractor Steiger, Dr. Lurate, Dr. Derkaz, and Dr.

Warburton (as well as psychological records not at issue in this appeal) (see Tr. 17–18).12 Moreover,

based on the substance of the questions posed by the ALJ to Dr. Witkind, it is evident that the ALJ

was well familiar with the content of Plaintiff’s file. Likewise, Dr. Witkind specifically stated that

he had reviewed Plaintiff’s file prior to testifying (see Tr. 789–90). Thus, although the ALJ did not

mention every piece of medical evidence in his opinion, it is evident that he (and Dr. Witkind)

considered Plaintiff’s medical condition as a whole. See Dyer v. Barnhart, 395 F.3d 1206, 1211

(11th Cir. 2005) (“there is no rigid requirement that the ALJ specifically refer to every piece of

evidence in his decision,” as long as the ALJ’s decision “is not a broad rejection which is ‘not

enough to enable [the district court or this Court] to conclude that [the ALJ] considered her medical

condition as a whole.’”) (quoting Foote, 67 F.3d at 1561).

11 When an ALJ employs a ME, the ME’s opinions should be evaluated in the same manner as those of a nonexamining agency physician. See 20 C.F.R. § 404.1527(f)(2)(iii).

12 All of these physicians are not mentioned by name in the ALJ’s opinion, but—even in the absence of a

name—it is evident to whom the ALJ refers based on the date and nature of treatment noted (see Tr. 17–18).

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Additionally, when the ALJ’s opinion is read in conjunction with Dr. Witkind’s testimony,

the ALJ’s reasons for assigning full weight to Dr. Witkind’s opinions are clear. First, the ALJ noted

that Dr. Witkind is a spine specialist and “has specific expertise in this area” (Tr. 19). See 20 C.F.R.

§ 404.1527(d)(5) (providing that “more weight [is given] to the opinion of a specialist about medical

issues related to his or her area of specialty than to the opinion of a source who is not a specialist.”). 

The ALJ also noted that Dr. Witkind’s opinions are based on substantial evidence in the record as

a whole (see Tr. 19). The ALJ then identified specific evidence in the record (and/or the opinions

of Dr. Witkind, based on evidence in the record) that supports his decision to fully credit Dr.

Witkind’s testimony, including evidence demonstrating that: (1) the work-related injury to Plaintiff’s

elbow was mild and resolved quickly; (2) x-rays of the right shoulder were normal, (3) the nerve

root impingement resolved, (4) arthroscopic surgery was successful, (5) Plaintiff’s reported rightsided symptoms were inconsistent with the objective medical evidence, including MRIs, x-rays, and

clinical findings, (6) Dr. Williams released Plaintiff to light work with certain restrictions, (7) Dr.

Fox (and/or Dr. Donchey) released Plaintiff to light duty work, (8) Plaintiff exaggerated his

symptoms (as evidenced by Plaintiff’s performance on certain examinations and by Chiropractor

Steiger’s records), and (9) Dr. Warburton’s November 2004 examination revealed mild findings and

no neurological abnormalities (Tr. 17–19). The ALJ also mentioned Dr. Derkaz’s examination and,

apparently relying on Dr. Witkind’s testimony, concluded that the examination results were of little

significance.13

13 Dr. Witkind’s testimony regarding Dr. Derkaz’s examination is somewhat unclear, but both he and the ALJ

suggest that his opinions were based in part on Plaintiff’s subjective complaints, even though Plaintiff’s examination

did not substantiate those complaints. For example, the ALJ noted that although Plaintiff reported “complete hearing

loss in the right ear,” Dr. Derkaz specifically noted that Plaintiff had no difficulty conversing during the examination

(Tr. 18, 401). Moreover, the court notes that Dr. Derkaz’s report contains a section titled “review of systems,” which

provides areas to record any complaints made by Plaintiff with regard to twelve different bodily “systems” (i.e., general,

head, eyes, ears, neck, lungs, gastrointestinal, genitourinary, musculoskeletal, neurological, psychiatric, and endocrine)

(see Tr. 398–99). Plaintiff reported symptoms in all twelve areas (see id.). While it is not necessary to list all of

Plaintiff’s varied and numerous complaints, the undersigned notes that many of the complaints reported to Dr. Derkaz

are wholly inconsistent with those reported to Dr. Andem approximately five months earlier. For example, Plaintiff told

Dr. Andem he experienced no shortness of breath, nausea, vomiting, intolerance to cold or heat, or emotional instability;

he told Dr. Derkaz, however, that he experienced shortness of breath, recurrent nausea, headache-associated vomiting,

“all season” intolerance to cold and heat, as well as depression, irritability, anxiousness, stress, panic attacks, and

“compulsiveness about everything” (compare Tr. 436 with Tr. 399). Furthermore, the results of Plaintiff’s examination

by Dr. Derkaz were similar to those of other examinations (i.e., a generally normal examination in most areas tested with

some limitations related to Plaintiff’s back).

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Furthermore, as fully summarized supra, additional evidence in the record supports Dr.

Witkind’s opinions, including records from Dr. Koulisis (who released Plaintiff to work with a fortypound weight restriction within a month of his work injury and with no restrictions within two

months), Dr. Zondlo (who administered lumbar steroid injections that provided good, prolonged

relief for the lumbar radiculopathy, and who restricted Plaintiff from work for only two weeks while

awaiting a second recommended injection at L5 (which Plaintiff apparently failed to obtain)), and

Dr. Warburton (who opined that Plaintiff had no impairment from the work-related injury and no

“significant pain or disability issue” between the two MVAs).

Thus, as can be seen, the physicians who treated and examined Plaintiff released him to light

duty work with certain restrictions (or offered no specific opinions as to his RFC). Likewise, four

non-examining agency physicians determined that Plaintiff was capable of at least light work with

certain restrictions, a factor also considered by the ALJ in assigning great weight to the similar

opinions of Dr. Witkind (see Tr. 19). Although the various examining and non-examining

physicians’ light work restrictions are not identical, the ALJ certainly did not err in relying on the

testimony of Dr. Witkind in determining which restrictions should be included in Plaintiff’s RFC

for light work. He likewise did not err in discounting certain evidence based upon Dr. Witkind’s

expert opinion that the evidence was unreliable or clinically insignificant.

VI. CONCLUSION

Although Plaintiff is represented by counsel, in light of counsel’s decision leave Plaintiff’s

administrative hearing before it started (and, apparently, his instructing Plaintiff to do the same), the

undersigned has spent a longer-than-average time studying and summarizing the voluminous record

in this case. The undersigned did so in order to independently determine whether the ALJ conducted

While the ALJ could have better explained his decision to discount some of Dr. Derkaz’s opinions, the

undersigned finds no reversible error in his failure to do so. Initially, based on the foregoing comparison between Dr.

Andem’s report and Dr. Derkaz’s report, it is evident—as the ALJ suggests—that Plaintiff exaggerated his symptoms

when he presented to Dr. Derkaz. Moreover, Dr. Witkind, who is a spine specialist, read Dr. Derkaz’s report, considered

the results of the examination he conducted, and concluded—in his expert opinion—that the examination was of no real

significance since no neurologic deficits were detected. It should also be noted that Dr. Derkaz did not opine Plaintiff

was totally restricted from all work; rather, he opined that Plaintiff could work with certain restrictions, including, for

example, “no overhead reaching,” which restriction was also imposed by Dr. Witkind and considered by VE Strader. 

Finally, Plaintiff’s counsel could have questioned—but chose not to question—Dr. Witkind about all of his opinions,

including those related to Dr. Derkaz. Likewise, counsel could have presented a hypothetical question to the VE that

included all of Dr. Derkaz’s restrictions, but counsel chose not to do so.

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a fair administrative hearing, fully developed the record,14 and reached a decision that is supported

by substantial evidence on the record as a whole.15 Having done so, the undersigned confidently

concludes that the Commissioner’s final decision should be affirmed.

While the ALJ’s decision could have been written with more clarity, when his decision is

compared with the relevant medical records and transcript of Plaintiff’s administrative hearing, it

is evident that the ALJ considered Plaintiff’s condition as a whole and properly relied on Dr.

Witkind’s opinions in making his findings. It is also evident that the ALJ’s overall findings are

generally consistent with the medical opinions of record, as no physician opined that Plaintiff is

“disabled” or otherwise precluded from work for any significant period of time. Rather, the opinions

of record establish that Plaintiff can perform (at least) light work with certain restrictions. The ALJ

thus committed no error in relying on the opinions of ME Witkind, since his opinions were generally

consistent with those of Plaintiff’s treating and examining physicians. See Edwards, 937 F.2d at

584–85 (11th Cir. 1991). And, to the extent the opinions of record differed in some, relatively minor

respects, the ALJ acted properly in employing an expert to assist him in resolving the differences.

For all these reasons the undersigned concludes that the Commissioner’s decision is

supported by substantial evidence and should not be disturbed. 42 U.S.C. § 405(g); Lewis, 125 F.

3d at 1439; Foote, 67 F.3d at1560. Furthermore, there is no basis to conclude that the ALJ applied

improper legal standards, erred in making his findings, or that any other ground for reversal exists. 

Accordingly, it is ORDERED:

That a copy of this Report and Recommendation be provided to Attorney Todd C. Brister

by mail at 108 West 4th Street, Panama City, FL 32401, and by electronic mail at

tbrister@knology.net.

14 An ALJ has an affirmative duty to develop a full and fair record. Brown v. Shalala, 44 F.3d 931, 934 (11th

Cir. 1995); Lucas v. Sullivan, 918 F.2d 1567, 1573 (11th Cir. 1990); Smith v. Bowen, 792 F.2d 1547, 1551 (11th Cir.

1986); Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). The duty to develop the record exists even though the

plaintiff is represented by a lawyer or paralegal. Brown, 44 F.3d at 934 (citing Clark v. Schweiker, 652 F.2d 399, 404

(5th Cir. Unit B July 1981)); Smith, 792 F.2d at 1551 (citing Cowart, 662 F.2d at 735).

15 The undersigned carefully analyzed the record in this case even though Plaintiff’s counsel did not abandon

Plaintiff’s case (subsequent to Plaintiff’s hearing counsel filed a brief in support of Plaintiff’s complaint). Moreover,

the Commissioner filed a response to Plaintiff’s brief and this case became ripe for review prior to Attorney Evans’

current ninety-day suspension from the practice of law. 

Case No. 5:10cv212/RH/EMT

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Page 24 of 24

And it is it is respectfully RECOMMENDED:

That the decision of the Commissioner be AFFIRMED, that this action be DISMISSED,

and that the clerk be directed to close the file. 

At Pensacola, Florida this 9th day of August 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed recommendations must be filed within fourteen (14)

days after being served a copy hereof. Any different deadline that may appear on the

electronic docket is for the court’s internal use only, and does not control. A copy of any

objections shall be served upon any other parties. Failure to object may limit the scope of

appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

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