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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ALAN JAY WILSON,

Plaintiff,

vs. Case No. 4:11cv307-SPM/WCS

MICHAEL J. ASTRUE, 

Commissioner of Social Security,

Defendant.

 /

REPORT AND RECOMMENDATION

This is a social security case referred to me for a report and recommendation

pursuant to 28 U.S.C. § 636(b) and local rule 72.2(D). It is recommended that the

decision of the Commissioner be reversed and remanded.

Procedural status of the case

Plaintiff, Alan Jay Wilson, applied for disability insurance benefits. His last date

of insured status for disability benefits was December 31, 2011. Plaintiff alleges

disability due to obesity, gout, degenerative lumbar disc disease, and degenerative joint

disease of the knee, post surgical correction, with onset on July 1, 2006. Plaintiff was

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50 years of age at the time of the ALJ's decision, has two years of college, and has past

relevant work as an ROTC instructor in a high school and as a sergeant first class in the

United States Army, serving for over 20 years as an airborne ranger with over 400

jumps. The Administrative Law Judge found that Plaintiff had the residual functional

capacity to do a limited range of light work, can still perform his past relevant work as a

school teacher, and thus was not disabled.

Legal standards guiding judicial review

This court must determine whether the Commissioner's decision is supported by

substantial evidence in the record and premised upon correct legal principles. Chester

v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). "Substantial evidence is more than a

scintilla, but less than a preponderance. It is such relevant evidence as a reasonable

person would accept as adequate to support a conclusion." Bloodsworth v. Heckler,

703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); Moore v. Barnhart, 405 F.3d

1208, 1211 (11th Cir. 2005). "The Commissioner's factual findings are conclusive if

supported by substantial evidence." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.

2002).1

 1 "If the Commissioner's decision is supported by substantial evidence we must

affirm, even if the proof preponderates against it." Phillips v. Barnhart, 357 F.3d 1232,

1240, n. 8 (11th Cir. 2004) (citations omitted). The court must give "substantial

deference to the Commissioner's decision." Dyer v. Barnhart, 395 F.3d 1206, 1211

(11th Cir. 2005). "A 'substantial evidence' standard, however, does not permit a court to

uphold the Secretary's decision by referring only to those parts of the record which

support the ALJ. A reviewing court must view the entire record and take account of

evidence in the record which detracts from the evidence relied on by the ALJ." Tieniber

v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). "Unless the Secretary has analyzed

all evidence and has sufficiently explained the weight he has given to obviously

probative exhibits, to say that his decision is supported by substantial evidence

approaches an abdication of the court's 'duty to scrutinize the record as a whole to

Case No. 4:11cv307-SPM/WCS

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A disability is defined as a physical or mental impairment of such severity that the

claimant is not only unable to do past relevant 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 . . . ." 42 U.S.C. § 423(d)(2)(A). A disability is 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). Both the "impairment" and the "inability" must

be expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212, 122

S.Ct. 1265, 1272, 152 L.Ed.2d 330 (2002).

The Commissioner analyzes a claim in five steps. 20 C.F.R. § 404.1520(a)-(f):

1. Is the individual currently engaged in substantial gainful activity?

2. Does the individual have any severe impairments?

3. Does the individual have any severe impairments that meet or

equal those listed in Appendix 1 of 20 C.F.R. Part 404?

4. Does the individual have any impairments which prevent past

relevant work?

5. Do the individual's impairments prevent other work?

A positive finding at step one or a negative finding at step two results in disapproval of

the application for benefits. A positive finding at step three results in approval of the

application for benefits. At step four, the claimant bears the burden of establishing a

severe impairment that precludes the performance of past relevant work. If the claimant

determine whether the conclusions reached are rational.' " Cowart v. Schweiker, 662

F.2d 731, 735 (11th Cir. 1981) (citations omitted).

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carries this burden, the burden shifts to the Commissioner at step five to establish that

despite the claimant's impairments, the claimant is able to perform other work in the

national economy. Chester, 792 F.2d at 131; MacGregor v. Bowen, 786 F.2d 1050,

1052 (11th Cir. 1986). If the Commissioner carries this burden, the claimant must prove

that he or she cannot perform the work suggested by the Commissioner. Hale v.

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).

Evidence from the administrative hearing2

Plaintiff was in the Army from 1979 to 2001, attaining the rank of Sergeant First

Class. R. 51. He was a certified military diver and a paratrooper. R. 50-51. Plaintiff

testified that he drives a pickup truck with an automatic transmission. R. 52. He drives

four to five times a week, depending on how he is feeling. R. 53. He drives his 16 year

old son to school and drives with his son to his 50 acre pasture where he has 15 head

of cattle and three horses. R. 53-54. Plaintiff was driven to the hearing by his wife. R.

55. He said that normally has his wife drove him from Perry, Florida, to Tallahassee, to

see his physician. Id.

 2 Descriptions of the purpose and effects of prescribed drugs are from PHYSICIANS'

DESK REFERENCE, as available to the court on Westlaw, or PDRhealthTM, PHYSICIANS'

DESKTOP REFERENCE, found at http://www.pdrhealth.com/drugs/drugs-index.aspx, or

PUBMED HEALTH, found at http://www.ncbi.nlm.nih.gov/pubmedhealth/, or

EVERYDAYHEALTH, found at http://www.everydayhealth.com/drugs. Information about

medical terms and prescription drugs come from MEDLINE PLUS (MERRIAM-WEBSTER),

found at: www.nlm.nih.gov/medlineplus/mplusdictionary.htm or NATIONAL INSTITUTES OF

HEALTH, found at: http://health.nih.gov. Social Security Rulings can be found at: 

http://www.ssa.gov/OP_Home/rulings/rulfind1.html. The pages at these websites are

not attached to this report and recommendation as the information is relatively wellsettled, the precise definitions are not at issue in this case, and the definitions are not

likely to be in dispute.

Case No. 4:11cv307-SPM/WCS

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Plaintiff said that his last work was a high school ROTC instructor. R. 58. 

Plaintiff said he was on his feet all day in that job, 95% of the time. Id. He

accompanied students on marches and obstacle courses. R. 107. He said that in

September during class, he was instructing "raider competition," with students running

an obstacle course, and his knee went out as he ran. R. 58. He had surgery on his

knee in September, 2005. R. 59. He went back to work in the spring of 2006, and

worked until June, 2006. Id. He had not held a job since then. Id. He did not think he

was physically able to be an ROTC instructor. R. 61. Plaintiff said he was then

receiving a combat-related disability pension from the Veteran's Administration with a

total disability rating of 70%. R. 62.

Plaintiff testified that he visits his pasture or ranch about three times a week. R.

62. These are short trips, lasting 10 minutes or so. R. 89. He rides with his son or

wife, supervising, checking on the health of the animals, and making sure that they are

fed. R. 63. The animals come to the truck, expecting feed. Id. He could visually check

on the health of the animals. R. 88. Sometimes he brings feed which his son or wife

bought at a feed store. R. 64. He said he had driven to the feed store and had the

people put the feed into his truck, but since 2005, he had not delivered the feed to the

animals by himself. R. 65. His son or hired help fixes things at the ranch. R. 66. He

said that sometimes a board or something may come down, and he moves it so the

animals do not step on the nails, but he does not try to nail it back up. Id. He sold

about 10 to 12 animals in the prior year, and he considered the ranch a hobby. R. 67. 

He gets about $180 per 300 pound calf. R. 68.

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Plaintiff said he could do limited household chores that did not involve stooping or

bending. R. 69. He said that he could help sort laundry from a seated position, move

clothing, and pick up pine cones in the yard with a "grabber." Id. Plaintiff said that on

an average day, he could be productive with activity for a couple of hours at most. R.

90. He had not gone to his son's sporting events because of the need to sit and stand

at such events. R. 72. He said if he were very careful, he could tend to his personal

hygiene. R. 84. He was taking an online course in management from Dickerson State

University. R. 85. Over a week, he thought he spent 15 to 20 hours taking the course

online. R. 86. In the last year, he had once taken his sons to a deer stand so they

could hunt while he sat in the truck. R. 87.

Plaintiff said that he is limited by pain in his back and knees, and said that small

amounts of activity aggravated both. R. 72. The pain was mostly in his right knee, but

there was also pain in his left knee, described as a dull pain. R. 77-78. The dull pain

was two on a scale of 10, but it could go higher. R. 78-79. Plaintiff had had three or

four surgeries to his knee, and was told he needed a knee replacement, but he was

"just not ready for that." R. 90-1. 

Plaintiff described his lumbar pain as a dull pain also. R. 82. As he sat at the

hearing, he described the dull pain as level 3, but could go to 4 or 5. Id. He said that

getting up and moving helped relieve the back pain. Id. and R. 99. He said he had

gone to the emergency room for back pain a few weeks earlier and Lortab was

prescribed. R. 83. He took pain medication prescribed by Dr. Ramel Failma. R. 72-73. 

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Plaintiff said that he has dizziness and drowsiness from his medications, and this

impaired his ability to concentrate. R. 91-93.

He said that when he has bad spells of back pain, lasting two or three days, he

rested totally off his feet and sought relief from ice and heat. R. 95. He said he could

walk for 10 to 20 minutes and then would "starting to feel some discomfort" in his knees. 

R. 97. He said that sitting in the hearing more than 40 minutes was "pushing it," and it

was hard to concentrate due to pain. R. 98. He said that his depression "certainly

doesn't help any." R. 76.

Medical evidence

On January 16, 2006, Plaintiff had an arthroscopic meniscectomy on his right

knee. R. 295. Plaintiff attended physical therapy and by February 24, 2006, was able

to walk reasonably well, though he had significant quadriceps atrophy and weakness of

his right leg. R. 299. By March 16, 2006, he was regaining strength gradually, but had

some crepitation. R. 300. He walked well, his knee was stable, and sensation and

motor function in his foot were intact. Id. His surgeon, Dr. Timothy Lane, said that

Plaintiff could return to "light duty" with no climbing, running, or squatting. Id. On April

21, 2006, his physical therapist said that Plaintiff had "a very physically demanding job"

(as a high school ROTC instructor) and needed three to four more weeks of physical

therapy. R. 305. Continued treatment was to include jogging, intense lateral

movements, and strengthening, with a very good prognosis. Id. He was discharged

from physical therapy on May 1, 2006, after working "very hard" at rehabilitation. R.

306. He had returned to his work as an ROTC instructor. Id. He was able to jog and

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walk on a treadmill, and was released to return to work with the expectation that he

would return to his "PLF," his previous level of functioning. Id.

On May 15, 2006, Plaintiff was examined at the VA hospital. R. 438. He said his

back and knee pain was worse. Id. He reported a constant dull pain in his right knee,

aggravated by walking and standing, and a progressive increase in low back pain. Id. 

He said he could not lift objects weighing over 10 pounds without pain. Id. Plaintiff

reported that he had over 400 paratrooper jumps while in service, and in one of the

jumps, injured his knee. Id. He had knee surgery in 1986 and 1997. Id. He reported

his right knee was unstable. Id. He said that he was self-employed. Id. Plaintiff

walked with a limping gait but entered the office in no acute distress. R. 439. His back

had no tenderness and he was able to bend and reach 10 inches from the floor. Id. An

MRI from June, 2001, revealed only minimal disc space narrowing at L5-S1. Id. 

Plaintiff did 10 deep knee bends, but said that if he did knee bends all day, his knee

would be swollen and he would not be able to work the next day. Id. Plaintiff said he

regularly exercised by walking and doing yard work as long as he could stand the pain

in his knees. R. 441. He said that in the past year, he had not been depressed or

lacked interest in doing things. R. 442.

On October 9, 2006, Plaintiff was seen for his annual physical by Larissa A. Lim,

M.D., about ten months after his right knee surgery. R. 345-346. Plaintiff said that he

had trouble falling asleep, and that the pain in his right knee was worse than in his left

knee and back. R. 345. Symptoms were worse after bending over with straining. Id. 

Plaintiff told Dr. Lim that he was a cattle farmer in Alachua, Florida, that he was going to

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school for a business degree, and that he worked part-time as a truck driver. Id. He

also told Dr. Lim that he ran eight to 10 miles a week. Id. He had had a right knee

arthroscopy for a torn ligament in January, 2006. Id. He had undiminished strength in

his extremities. Id. Dr. Lim prescribed Ambien,3

 tramadol,4 Flexeril,5 diet, and exercise. 

R. 346.

On March 5, 2007, Plaintiff returned to Dr. Lim. R. 339. He reported that his

insomnia was better with Ambien. Id. He did not report knee or back pain as a

complaint. Id. Dr. Lim noted, however, that his "arthralgias" were unchanged, and that

he had hurt his back several weeks earlier. Id. His medications were continued. R.

340.

On March 20, 2007, Plaintiff had a negative x-ray of his lumbosacral spine. R.

513. It was found that his bones were "well-mineralized," his joints and soft tissues

appeared to be normal, and alignment was normal. Id.

On March 20, 2007, Plaintiff was evaluated by Linda Hauzer, ARNP, and Carrie

Ann Labelle, M.D., for VA disability associated with his spinal problems. R. 389-401. 

The problem noted was mild degenerative disc changes, and disc protrusion at L4-L5. 

 3 Ambien is used for short term treatment of insomnia. PDRhealthTM, PHYSICIANS'

DESKTOP REFERENCE.

 4 Tramadol is a narcotic-like pain reliever. Tramadol is used to treat moderate to

severe pain. Tramadol extended-release is used to treat moderate to severe chronic

pain when treatment is needed around the clock. Tramadol is a generic name sold as

Ultram. EVERYDAYHEALTH.

 5

 Flexeril is a muscle relaxant prescribed to relieve muscle spasms resulting from

injuries such as sprains, strains, or pulls. Combined with rest and physical therapy,

Flexeril provides relief of muscular stiffness and pain. PDRhealthTM, PHYSICIANS'

DESKTOP REFERENCE.

Case No. 4:11cv307-SPM/WCS

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R. 389-390. Plaintiff reported that his lower back had become progressively worse in

the prior 20 years, and sometimes there was pain radiating down both legs, and that he

did not do much anymore. R. 390. It was noted that back surgery had been

recommended, but Plaintiff had put that "on hold." Id. Plaintiff said he had severe flareups of back pain weekly, depending upon what activities he had done, and he said that

the flare-ups would last two to four weeks. R. 391. He said that he could do nothing

during a flare-up except bed rest. Id. Plaintiff reported that he could walk only 100

yards. R. 392. From the MRI dated June 2, 2003, it was noted that Plaintiff had "mild

degenerative changes with a small broad based right foramen disc protrusion at L4-L5,

which is displacing but not compressing the exiting right L4 nerve root." R. 400-401. 

The diagnosis was the same, with radiculopathy down both legs from L4-L5. R. 401. 

Plaintiff said that his condition had severe effects upon his ability to do chores, shop,

exercise, and engage in sports, recreation, and travel. Id.

On June 20, 2007, Plaintiff was seen again at the VA clinic by Angel L.

Quinones-Colon, RN. R. 417. He complained of pain in his back and knee. Id. He

walked with a limp but with an erect posture, in no acute distress. Id. He had no lower

back tenderness, and he could bend over to 10 inches from the floor. Id. A service

connected disability rating of 30% was assigned to the right knee and 10% for lower

back pain. R. 418. He was not depressed. R. 419.

On July 10, 2007, Plaintiff was seen by Dr. Lim. R. 341. He did not report pain

in his knee or in his back. Id. Dr. Lim prescribed a decrease in alcohol intake, diet, and

exercise. R. 342.

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On January 11, 2008, Plaintiff was seen again at the VA clinic. R. 405. He

reported worse back and knee pain due to the weather. Id. He used NSAID for pain,

and used Ultram "only rarely." Id.

On January 17, 2008, Plaintiff was examined on a consultative basis by Abdul

Sofi, M.D. R. 559. Plaintiff said he could not work due to severe low back and right

knee pain. Id. On examination, Dr. Sofi found that Plaintiff had tenderness and painful

movements of his right knee, that he could not extend the knee properly, and there was

some deformity. R. 560. Dr. Sofi also seems to have found cyanosis, edema, or

clubbing, but this is probably incorrect as Dr. Sofi did not pick which one.6

 Id. Dr. Sofi

also found that Plaintiff had "grade 5 power [full strength] in both lower extremities, hip,

knee and ankle joints, although he cannot move the right knee because of pain." Id. 

Dr. Sofi had x-rays dated January 17, 2008. R. 558, 561. The knee x-ray showed

cruciate ligament repair and mild hypertrophic spurring. R. 561. The lumbar spine

showed only minimal hypertrophic spurring, with no other abnormalities. Id. Dr. Sofi

then said that Plaintiff had:

severe chronic pain of the back and right knee, causing him not to be able

to work. The patient has some deformity as well as painful movements of

the right knee, which may[]be hindering him in doing much work at this

time. The patient may need further evaluation, if not already done by an

orthopedic physician for determining the severity of his injury as well as

disease.

R. 560. Dr. Sofi apparently had none of the previous medical records to review.

 6 Edema is swelling. Cyanosis is bluish discoloration due to lack of oxygen. 

Clubbing is a bulbous enlargement. The words do not mean the same thing, and the

sentence uses "or," indicating that Dr. Sofi probably meant to write "no edema,

cyanosis, or clubbing."

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On March 25, 2008, Plaintiff was first treated by Dr. Failma. R. 661. He sought

treatment for congestion and a cough. Id. He also mentioned chronic low back and

knee problems. Id.

On March 28, 2008, Plaintiff returned to Dr. Failma, who noted "suspicions of

gout." R. 660. He was treating his toe pain with NSAIDs (nonsteroidal antiinflammatory drugs). Id.

On April 7, 2008, the VA increased Plaintiff's combat related disability benefits to

40% for his spine impairment. R. 575. He continued to receive 30% for his right knee

and 10% for his left knee. Id. His total disability rating was 70%. Id.

On April 8, 2008, Plaintiff again saw Dr. Failma for left foot pain. R. 657. 

Plaintiff said he felt "almost resolved from pain" that day, and he was found to be

"definitely not as tender with range of motion testing." Id. 

On June 4, 2008, Plaintiff was again seen at the VA clinic for disability related to

his spine, which he said was a little worse. R. 518. He reported drowsiness from

tramadol. R. 519. Plaintiff reported a constant moderate dull ache in his middle low

back, with pain radiating down both legs. R. 520. He said he had severe flare-ups

every 5 to 6 months, with a duration of more than a month when he had to be confined

to a bed. Id. The flare-ups were caused by bending, lifting, pushing, and pulling. Id. 

He said he was able to walk one block. Id. His gait was antalgic. R. 522. Dr. Marc A.

Linden, an examining physician at the VA, said that Plaintiff's low back condition "should

not preclude very light duty or sedentary employment." R. 530. Dr. Linden thought that

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Plaintiff would be limited to less than 20 minutes per hour lifting or carrying less than 20

pounds occasionally, with minimal bending, and a sit or stand option was preferable. Id.

On July 2, 2008, Plaintiff was seen by Dr. Failma. R. 656. He complained of

chronic joint pain in his hips, knees, and low back, keeping him up at night. Id. Plaintiff

said he previously had good relief with tramadol (Ultram), but it had stopped working. 

Id. On examination, some lumbar tenderness (without radiculopathy) was noted, and

nonspecific right knee pain was also noted. Id. Ultracet7 was prescribed. Id.

On October 20, 2008, Plaintiff was seen by Dr. Failma. R. 652. Plaintiff was

suffering from gout in his left foot and he took medication for that condition. Id. Plaintiff

also thought that the pain and instability of his right knee were becoming worse. Id. On

examination, Plaintiff had "some discomfort on valgus stress, more than varus stress,"

of his right knee. Id. Plaintiff told Dr. Failma that a right knee replacement had been

recommended, and Dr. Failma decided an MRI was needed. Id.

On November 5, 2008, an MRI of Plaintiff's right knee revealed tricompartmental

degenerative changes, and a medial and lateral meniscal tear. R. 623. The ACL repair

seemed to be intact. Id.

On November 6, 2008, Plaintiff returned to the VA and was examined by Anne

Hastings, ARNP. R. 587, 593. The purpose was to determine the current level of

disability due to Plaintiff's right knee problems. R. 587. The claims file was then at the

 7 Ultracet is a trademark for a preparation of tramadol hydrochloride and

acetaminophen. DORLAND'S MEDICAL DICTIONARY FOR HEALTHCARE CONSUMERS. 

Ultracet is used to treat moderate to severe pain for a period of five days or less. It

contains two pain-relieving agents. Tramadol, known technically as an opioid analgesic,

is a narcotic pain reliever. Acetaminophen is the active ingredient in the over-thecounter pain remedy Tylenol. PDRhealthTM, PHYSICIANS' DESKTOP REFERENCE.

Case No. 4:11cv307-SPM/WCS

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Board of Veterans Appeals. Id. Nurse Hastings noted that a VA examination on June

4, 2008, did not note any instability of the knee. Id. Hastings further said that an

outside orthopedist determined on October 11, 2005: "Stability examination reveals

NORMAL STABILITY [o]n anterior/posterior and varus/valgus stress testing." R. 588

(emphasis in original). It was noted that an examination on November 20, 2004, found

that Plaintiff "is STABLE TO VARUS VALGUS stress," but said that "patient is

significantly disabled both functionally and SUBJECTIVELY by his knee." Id. (emphasis

in original). Hastings explained to Plaintiff that there was a difference between his

subjective feeling of "giving way" and the "medical-objective findings on various knee

maneuvers to test for instability." R. 589. She said that the "usefulness of tests is

limited if the patient's muscles are not relaxed, as quadriceps contraction masks signs

of instability." Id. She later again said that a 2004 examination diagnosis discussed

Plaintiff's subjective feelings that his right knee was unstable, but examination findings

in 2004, 2005, and 2008 "all show negative valgus/varus." R. 593. She said that

Plaintiff could stand for 15 to 30 minutes but was unable to walk for more than a few

yards. R. 590.

On December 16, 2008, the VA Board of Veteran's Appeals found that Plaintiff

was entitled to a 60% disability rating for his spinal problems. R. 255. The Board

followed the guidance of 38 C.F.R. § 4.3, which provides that if a reasonable doubt

arises regarding the degree of disability, such doubt will be resolved in favor of the

veteran. R. 256.

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On February 6, 2009, Plaintiff was seen in the Tallahassee Orthopedic Clinic by

Garrison A. Rolle, M.D. R. 620. Plaintiff complained of a constant dull ache in his right

knee. Id. He reported that he worked "as an entrepreneur working cows." Id. 

Examination of Plaintiff's right knee revealed minimal medial and lateral patella facet

and joint tenderness. Id. Dr. Rolle found Plaintiff's knee to be stable "to varus and

valgus stress." Id. A pivot shift test was impossible to perform because Plaintiff was

"jumpy and very apprehensive." Id. Dr. Rolle reviewed an x-ray, noting a possible tear

of the lateral meniscus, and the absence of the medical meniscus consistent with the

surgery, and "significant chondromalacia[8

] in both the medial and lateral

compartments."9 Id. Dr. Rolle diagnosed probable insufficient ACL, probable meniscus

tear, and chondromalacia. Id. He recommended diagnostic arthroscopy, but "because

of his work schedule and season, [Plaintiff] chose to undergo an injection." Id. Plaintiff

was to rest for a couple of days and "then resume normal activities." Id.

On April 9, 2009, Dr. Failma filled out a "multiple impairment questionnaire." R.

627-634. His diagnosis was chronic joint pain, lumbar degenerative disc disease, and

lower extremity neuropathy, with "recovery unlikely" as his prognosis. R. 627. He said

that his diagnosis was supported by MRI findings, range of motion testing of Plaintiff's

back, legs, knees, and hands, and his antalgic gait. Id. Specifically, he cited knee MRIs

in November, 2008, and October, 2005, a lumbar MRI in June, 2003, and a left foot MRI

 8 Chondromalacia is the abnormal softening of cartilage. DORLAND'S MEDICAL

DICTIONARY FOR HEALTHCARE CONSUMERS. 

 9

 Dr. Rolle also noted that x-rays of both knees showed no obvious wear, and only

minimal changes in the right knee as compared with the left. R. 622.

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in December, 2008. R. 628. He said that Plaintiff's primary symptoms were chronic

lower back and knee pain, radicular symptoms, possible depressive symptoms,

decreased tolerance for activity, and decreased range of motion. Id. He said that

Plaintiff's pain was daily, and easily exacerbated by movement, or prolonged standing

or sitting. R. 629. He found Plaintiff to be easily irritable. Id. He said that Plaintiff had

pain and fatigue ranging from 3 to 10, and that the pain had not been relieved with

medication without unacceptable side effects. Id. He thought that Plaintiff could sit or

stand at most for one hour a day, and could not, for medical reasons, sit or stand

continuously in a work setting. R. 629-630. He said that Plaintiff had to get up and

move every 30 to 60 minutes before returning to sitting. Id. He thought that Plaintiff

could only occasionally lift and carry up to 10 pounds, and had significant limitations for

doing repetitive reaching, handling, fingering, or lifting. R. 630. Dr. Failma said that

"PT" (physical therapy) had not resulted in improvement. R. 631. He said that Plaintiff's

symptoms would increase in a competitive work environment and his condition would

interfere with his ability to keep his neck in a constant position looking at a computer

screen. Id. He thought that Plaintiff could not do a full time competitive job requiring

activity on a sustained basis, and that his pain and fatigue frequently to constantly

interfered with his ability to attend and concentrate. R. 632. He thought that Plaintiff

was incapable of tolerating even low stress. Id. He thought that Plaintiff would be

absent from work more than three times per month. R. 633.

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Legal analysis

Whether the ALJ improperly discounted the opinions Dr. Failma and

Dr. Linden, treating physicians

The opinion of a claimant's treating physician must be accorded considerable

weight by the Commissioner unless good cause is shown to the contrary. Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Winschel v. Commissioner of Social

Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). The reasons for giving little weight to the

opinion of a treating physician must be supported by substantial evidence, Marbury v.

Sullivan, 957 F.2d 837, 841 (11th Cir. 1992), and must be clearly articulated. Phillips v.

Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). "The Secretary must specify what

weight is given to a treating physician's opinion and any reason for giving it no weight,

and failure to do so is reversible error." MacGregor v. Bowen, 786 F.2d 1050, 1053

(11th Cir. 1986). This circuit finds good cause to afford less weight to the opinion of a

treating physician "when the: (1) treating physician's opinion is not bolstered by the

evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion

was conclusory or inconsistent with the doctor's own medical records." Winschel, 631

F.3d at 1179; Phillips v. Barnhart, 357 F.3d 1232, 1240-1241(11th Cir. 2004); Edwards

v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991) ("The treating physician's report may be

discounted when it is not accompanied by objective medical evidence or is wholly

conclusory."). See also, Crawford v. Commissioner Of Social Security, 363 F.3d 1155,

1159 (11th Cir. 2004) (finding good reasons articulated by the ALJ to discount the

treating physician's opinion).

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The Administrative Law Judge described much of the medical and testimonial

evidence in his opinion. R. 28-31. In particular, he noted that in May, 2006, after the

last surgery to his right knee and completion of physical therapy, it was reported that

while Plaintiff had minor limitation in right knee range of motion and strength, Plaintiff

was able to jog and walk on a treadmill, had returned to work, and his therapist said he

had returned to his level of functioning prior to his injury. R. 29. The ALJ noted that in

October, 2006, Plaintiff told Dr. Lim that his sleep was being interrupted by knee pain,

but despite his complaints, he told her that he ran eight to ten miles a week, worked as

a part-time truck driver, and she did not note any significant abnormalities in her

examination. Id.

The ALJ further noted that despite Plaintiff's subjective complaints of knee and

back pain to the VA, objective testing was not supportive. R. 29. The ALJ observed

that "[i]maging showed only mild degenerative changes with protrusion at the L4-5 level

with no neurological impairment." Id. He also found that Dr. Linden said, after

examination, that his findings were not severe enough to account for Plaintiff's abnormal

gait and no radicular symptoms were elicited. Id. The ALJ further noted that Dr. Linden

concluded that Plaintiff was limited to light or sedentary work with limitations on his

ability to sit, stand, or bend based on Plaintiff's subjective complaints, but the ALJ also

found that the subjective complaints "exceeded the objective findings." R. 29-30.

The ALJ then reviewed the consultative physical examination by Dr. Sofi. R. 30. 

He did not mention Dr. Sofi's comment about inability to work due to knee and back

pain, but the ALJ did note that Dr. Sofi found that Plaintiff had full strength in his lower

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extremities, that the x-rays that Dr. Sofi had showed only minimal problems in the right

knee and lumbar spine, and that Dr. Sofi would defer to the opinion of an orthopedic

surgeon in regards to the limitations caused by Plaintiff's right knee problems. Id.

The ALJ reviewed the orthopedic opinion of Dr. Rolle, noting that Plaintiff told Dr.

Rolle that at that time, in February, 2009, he was an entrepreneur working a cattle

ranch. R. 30. The ALJ noted that Dr. Rolle found Plaintiff's right knee to be stable with

varus and valgus stress testing, with minimal tenderness. Id. Dr. Rolle had had trouble

conducting range of motion testing because Plaintiff's apprehension interfered with

testing. Id. The ALJ further noted that Dr. Rolle recommended arthroscopic revision,

but Plaintiff could not do this "because of his work schedule that season," and instead,

had an analgesic injection. Id.

Turning to the records of Dr. Failma, the ALJ determined that Plaintiff had an

aggravation of painful symptoms that appears to have been adequately resolved with

medication. R. 30. He also noted Dr. Failma's treatment of apparent gout in Plaintiff's

left foot. Id. He then noted Dr. Failma's residual functional capacity opinion which will

be addressed ahead. R. 30-31.

The ALJ also accurately reported Plaintiff's testimony. R. 331. Of relevance

here, he determined that Plaintiff said he drove his truck two to five times a week, drove

his son to and from school three times a week, drove to his cattle ranch to check on the

health of his animals, but did not drive longer distances. Id. He noted that Plaintiff said

that his wife or son fed the ranch animals, but he did minor pick up of things in the way,

that he fed and watered his dog, and did only light household chores. Id. He noted

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Plaintiff's testimony that he could walk for only two hundred yards without significant

pain, and that his back pain was aggravated by sitting. Id. He noted that after sitting for

an hour at the hearing, his back pain was at level three, and that he could not sit for

more than two hours in an eight hour day. R. 32. He also noted Plaintiff's testimony

that his pain medications cause drowsiness and impairment of concentration, and that

he had aggravation of symptoms about once a month lasting one to three days. Id.

The ALJ then said he gave significant weight to the "opinion" of Dr. Sofi and Dr.

Rolle, noting especially that Dr. Rolle was an orthopedic surgeon. R. 32. He found that

their findings suggested that Plaintiff could do a limited range of light work. Id.

Finally, the ALJ discounted the opinion of Dr. Failma. R. 33. He said that his

opinion was not supported by his own treatment notes and was not consistent with the

objective evidence "throughout the record." Id. The ALJ similarly discounted the

opinion of Dr. Linden because the opinion seemed to have been based on Plaintiff's

subjective complaints, and was not supported by objective findings. Id.

Though the paragraph in which the ALJ discounted the opinion of Dr. Failma did

not again refer to the evidence, that evidence had already been fully set forth as

explained above and is substantial evidence in the record to discount Dr. Failma's

residual functional capacity assessment. Dr. Failma's medical treatment records indeed

do not contain objective evidence to support his residual functional capacity opinion. He

did little in the way of objective testing of Plaintiff's lower back and right knee, and on

several occasions, knee and back pain was not the problem treated. 

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After right knee surgery, Plaintiff was diligent in physical therapy, he healed well,

and he was released to light duty. In 2006, some months after the knee surgery,

Plaintiff was running eight to ten miles a day. Objective testing of right knee stability

over the period from 2005 through 2008 was mixed, as the VA pointed out. In 2008, Dr.

Rolle, an orthopedic specialist, found with testing that Plaintiff's knee was stable. By

2008, Plaintiff's knee pain was apparently becoming worse again, but Plaintiff declined

Dr. Rolle's recommendation of further knee surgery because of his work needs and the

"season," and he told Dr. Rolle that he worked "as an entrepreneur working cows."

There was like evidence of daily activities inconsistent with Dr. Failma's

assessment. Plaintiff testified that he was taking an online college course, and worked

on that 15 to 20 hours a week, presumably in a seated position, which was inconsistent

with Dr. Failma's opinion that he could sit or stand only about two hours a day, and

inconsistent with Dr. Failma's opinion that Plaintiff had problems with his neck, hands,

and arms. He was able to drive his truck with some frequency each week, similarly

inconsistent with Dr. Failma's opinion. Plaintiff told Dr. Lim in October, 2006, that he

was attending school in pursuit of a business degree, worked part-time as a truck driver,

and worked as a cattle rancher. This was additional substantial evidence in the record

to support the ALJ's decision to discount Dr. Failma's opinion. Plaintiff's testimony as to

the limitations of his daily activities, of course, was inconsistent with this evidence, but

the court's task is to determine whether substantial evidence exists to support the ALJ's

conclusions, not to determine the issues de novo. 

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Other objective medical evidence was also inconsistent with Dr. Failma's opinion. 

X-rays in 2007 did not show significant lumbar abnormalities. An MRI dated June 2,

2003 revealed only "mild degenerative changes with a small broad based right foramen

disc protrusion at L4-L5, which is displacing but not compressing the exiting right L4

nerve root." R. 400-401. On June 20, 2007, at a VA examination, Plaintiff had no lower

back tenderness, and he still could bend over to ten inches from the floor. R. 417. On

January 11, 2008, Plaintiff was using NSAID for pain, and used Ultram only rarely,

though a few months later, he said Ultram was no longer working and Ultracet was

prescribed.

Further, Dr. Linden's opinion was inconsistent with Dr. Failma's opinion, and was

not disregarded by the ALJ.10 Dr. Linden said that Plaintiff's low back condition "should

not preclude very light duty or sedentary employment." R. 530. Dr. Linden thought that

Plaintiff would be limited to less than 20 minutes per hour lifting or carrying less than 20

pounds occasionally, with minimal bending, and a sit or stand option was preferable.

For all of these reasons, the ALJ's rejection of the opinion of Dr. Failma, and

reliance upon the opinion of Dr. Linden, correctly followed the law and is supported by

substantial evidence in the record. However, as will be explained, the ALJ did not

explicitly discuss and evaluate the VA disability rating. A remand is needed for that

purpose, and this necessitates reconsideration of Dr. Failma's opinion in light of the VA

 10 I agree that the ALJ could not disregard Dr. Linden's opinion because it was

premised upon Plaintiff's subjective complaints, but that finding leads to no useful Place

as Dr. Linden's residual functional capacity assessment is much the same as the one

adopted by the ALJ.

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determination. If the VA rating is given great weight, it will provide significant support for

Dr. Failma's assessment.

Whether the ALJ erred in failing to consider the VA disability decision

The ALJ did not indicate the weight he gave, if any, to the VA decision that

Plaintiff suffers a significant combat-related disability and was awarded VA disability

benefits based upon a 70% disability rating. R. 25-33. Plaintiff assigns this as error. 

Doc. 11, p. 14.

A disability rating by the Veteran's Administration is not binding upon the

Commissioner but is entitled to great weight. Brady v. Heckler, 724 F.2d 914, 921 (11th

Cir. 1984); DePaepe v. Richardson, 464 F.2d 92, 101 (5th Cir. 1972). The VA disability

rating here was 70%. While it does not bind the Commission, this high disability rating

should have been more closely examined by the ALJ. Rodriguez v. Schweiker, 640

F.2d 682, 686 (5th Cir. 1981) ("A VA rating of 100% disability should have been more

closely scrutinized by the ALJ.").

Defendant argues that the VA rating was based upon Dr. Linden's review, and

since the ALJ partially discounted Dr. Linden's opinion, "it can be inferred that he

indirectly discounted the disability rating from the VA based on his evaluation of Dr.

Linden's opinion." Doc. 14, p. 9. The portion of Dr. Linden's opinion that was

"discounted" because based upon Plaintiff's "subjective complaints" appears to be the

portion that found that Plaintiff had significant limitations of his ability to sit, stand, or

bend. R. 30. Still, Dr. Linden found that Plaintiff could do light or sedentary activities,

consistent with the residual functional capacity determined by the ALJ, so the

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importance of this "discounting" is rather unclear. In any event, this short analysis of Dr.

Linden's opinion is not an adequate substitute for "close scrutiny" of the VA disability

rating itself. A remand is needed for that purpose. Since this evidence was not

considered when discounting Dr. Failma's opinion, it is also necessary to reconsider Dr.

Failma's opinion in light of whatever weight is assigned to the VA disability rating.

Whether the ALJ properly determined Plaintiff's credibility

The ALJ discounted Plaintiff's testimony, finding that while his medically

determinable impairments could reasonably cause the symptoms, the extent of the

symptoms was not credible. R. 32. The ALJ noted that Plaintiff responded well to knee

surgery and therapy, and Plaintiff chose not to have further surgery so that he could

"perform duties on his farm." Id. The ALJ noted that Plaintiff's description of his back

problems was more severe when presented to the VA than recorded by his treating

physicians. Id. For the reasons set forth above with respect to the ALJ's analysis of the

opinions of treating physicians, these findings are supported by substantial evidence in

the record and are sufficient to discount Plaintiff's testimony.11 However, a remand is

needed to discuss and evaluate the VA rating, and when that has occurred, the ALJ

must again address this issue. If the VA rating is given great weight, it will provide

significant support for Plaintiff's testimony.

 11 "If the ALJ discredits subjective testimony, he must articulate explicit and adequate

reasons for doing so." Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The

reasons articulated by the ALJ for disregarding the claimant's subjective testimony must

be based upon substantial evidence. Jones v. Department of Health and Human

Services, 941 F.2d 1529, 1532 (11th Cir. 1991).

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Whether the residual functional capacity (RFC) determination is

supported by substantial evidence

The ALJ's residual functional capacity assessment is supported by substantial

evidence in the record if he properly evaluated the medical opinions and Plaintiff's

testimony. Those aspects of the decision may be altered, however, depending upon the

weight to be given to the VA rating.

Whether Plaintiff's past relevant work was as a school teacher

The ALJ determined that Plaintiff could do his past relevant work as a school

teacher, requiring an ability to do light work. R. 33. Plaintiff contends that his past

relevant work as an ROTC high school instructor was performed at the medium

exertional level, and not the light work level of an ordinary school teacher. Doc. 11, p.

18. Plaintiff refers to the testimony of the vocational expert, which so found without

contradiction. R. 104, 107-108. Plaintiff contends that it was error to refer to his past

relevant work as an ordinary school teacher. Id. Plaintiff points out that he does not

have a college degree, but has only experience in the Army. Id. Plaintiff concludes that

since he cannot do medium work and is not a certified school teacher in general, the

conclusion that he can return to his allegedly past relevant work as a school teacher is

flawed. Id.

Plaintiff is correct. The vocational expert said that an ROTC instructor is typically

performed "at least" at the medium exertional level. R. 104. The vocational expert

admitted that the requirement that such an instructor accompany the cadets on marches

and running obstacle courses would require "much heavier exertion" than a normal

school teacher. R. 106-108. Plaintiff did not have past relevant work as a school

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teacher in general, even though he used that phrase in several documents in the

record. A remand is needed to determine at step 5, based upon vocation testimony,

whether there are other jobs in the national economy which Plaintiff may do with his

limited residual functional capacity. 

Conclusion

In summary, portions of the ALJ's decision are supported by substantial evidence

in the record. A remand is needed, however, to evaluate the VA disability rating, to

reconsider other portions of the opinion in light of the VA disability rating, and to

reconsider the claim at step 5. 

Therefore, it is RECOMMENDED that the decision of the Commissioner to deny

Plaintiff's application for Social Security benefits be REVERSED, and the case be

REMANDED for further consideration as set forth in this report and recommendation.

IN CHAMBERS at Tallahassee, Florida, on February 15, 2012.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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