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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CHRISTOPHER TAYLOR,

Plaintiff,

vs. Case No. 5:10cv294/RS/EMT

MICHAEL J. ASTRUE,

Commissioner of the 

Social Security Administration,

Defendant.

______________________________/

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 section 405(g) for review of a final

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

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

and Supplemental Security Income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C.

§§ 1381–83. 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 filed applications for DIB and SSI on July 10, 2007, and in each application he

alleged disability beginning November 27, 2006 (Tr. 16).1

 His applications were denied initially and

on reconsideration (id.). On March 24, 2010, after a hearing, an administrative law judge (“ALJ”)

1 All references to “Tr.” refer to the transcript of Social Security Administration record filed on January 21,

2011 (Doc. 6). Additionally, the page numbers refer to those found on the lower right-hand corner of each page of the

transcript, as opposed to those assigned by the court’s electronic docketing system.

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issued a decision in which she found Plaintiff “not disabled” under the Act at any time through the

date of her decision (Tr. 16–28). The Appeals Council denied Plaintiff’s request for review on

September 22, 2010 (Tr. 1–5). Thus, the ALJ’s decision stands as the final decision of the

Commissioner, 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 her decision dated March 24, 2010, the ALJ made several findings relative to the issues

raised in this appeal (Tr. 16–28): 

1) Plaintiff meets the insured status requirements of the Act through March 31, 2012.2

2) Plaintiff has not engaged in substantial gainful activity since the date he alleges he

became disabled.

3) Plaintiff has the following severe impairments: lumbar spine disorder, right ulnar

neuropathy status post transposition surgery, hypertension, chronic pain, and

depression.

4) Plaintiff has no impairment or combination of impairments that meets or medically

equals a listed impairment.

5) Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work3 or,

more specifically, the following RFC: he can lift/carry ten pounds occasionally and

less than ten pounds frequently; he can stand/walk two hours in an eight-hour

workday and sit six hours; he requires a sit/stand option; he is precluded from

climbing ladders/ropes/scaffolds; he is limited to occasional ramp/stair climbing,

stooping, kneeling, crouching, and crawling; he must avoid exposure to extreme heat,

humidity, cold conditions, and dangerous work hazards, such as unprotected heights;

and he is limited to routine, uncomplicated work tasks due to medication side effects.

6) Plaintiff cannot perform any of his past relevant work.

2

 Thus, since Plaintiff’s date last insured is after the date of the ALJ’s decision, the time frame relevant to this

appeal is November 27, 2006 (alleged onset), through March 24, 2010 (date of the ALJ’s decision).

3

 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles

like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain

amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing

are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567.

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7) Transferability of job skills is not material to the determination of disability because

use of the Medical-Vocational Rules as a framework supports a finding that Plaintiff

is “not disabled,” whether or not Plaintiff has transferable job skills.

8) Considering Plaintiff’s age, education, work experience, and RFC, jobs exist in

significant numbers in the national economy he can perform; Plaintiff, therefore, is

not disabled.

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).

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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

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),4

 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,

4 In general, the legal standards applied are the same regardless of whether a claimant seeks DIB or SSI, but

separate, parallel statutes and regulations exist for DIB and SSI claims (see 20 C.F.R. §§ 404, 416). Therefore,

hereinafter, citations in this Report should be considered to refer to the appropriate parallel provision. The same applies

to citations of statutes or regulations found in quoted court decisions.

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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. PLAINTIFF’S PERSONAL, EMPLOYMENT, AND MEDICAL HISTORY

A. Personal History

Plaintiff was born on November 29, 1965, and was forty years old on the date he alleges he

became disabled (Tr. 26). He has at least a high school education and is able to communicate in

English (Tr. 27). His previous work experience includes work as a general laborer, where he hauled

roofing materials and cleaned job sites; creeler for a carpet manufacturer; assembly line worker,

where he handled light materials; and pallet loader, where he handled heavy materials (Tr. 20–21).

B. Relevant Medical History

Treatment Records That Precede November 27, 2006, the Alleged Onset Date

Plaintiff was a patient at Nathanael Medical Center (Tr. 323–33) and Dothan Therapy

Associates (Tr. 317–22) shortly before his alleged onset date. The relevant Nathanael records reflect

that Plaintiff presented on October 12, 2006, and stated he hurt his back lifting pallets at work (Tr.

326). X-rays taken the same day revealed a normal lumbar spine (Tr. 333). The Dothan records

reflect that Plaintiff attended physical therapy sessions on October 20, 23, and 25, 2006, for lumbar

strain and lower back pain (Tr. 317–22). Additionally, Plaintiff presented to an emergency room

(“ER”) in mid-October 2006, and complained of continuous back pain for the past two years (Tr.

463). He was assessed with sciatica5

 and musculoskeletal back pain (Tr. 464). On October 31,

2006, Plaintiff saw Mark Choquette, M.D., with Southern Bone and Joint Specialists (“SBJS”), and

reported back pain since his work injury on October 12 (Tr. 448). Plaintiff stated he was “not really

doing any better,” although he noted physical therapy had helped (id.). A physical examination was

essentially normal, with the exception of some pain in the area of the left sacral pelvic ilium (see

id.). Dr. Choquette opined that Plaintiff could perform light duty work for one week, heavier duty

work the following week, and full duty work the next week (Tr. 448–49). Plaintiff returned to the

ER on November 7, 2006, with essentially the same complaints as before (see Tr. 461). His

5 “Sciatica refers to pain, weakness, numbness, or tingling in the leg. It is caused by injury to or pressure on

the sciatic nerve. Sciatica is a symptom of another medical problem, not a medical condition on its own.” See

http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001706 (last visited November 18, 2011).

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diagnoses remained the same, and Plaintiff was advised to follow up with a back specialist (Tr. 462). 

Finally, on November 8, 2006, a physician with Marianna Medical Associates saw Plaintiff and

diagnosed lumbosacral strain (see Tr. 340).

Treatment Records That Follow the Alleged Onset Date 

On December 4, 2006, a magnetic resonance imaging (“MRI”) of Plaintiff’s lumbar spine

was obtained (Tr. 457). The MRI revealed marked degenerative disc disease (“DDD”) at L4-L5

with bilateral neural foraminal narrowing, left greater than right, but otherwise was normal (id.). 

Plaintiff returned to the SBJS ten days later and saw James P. Maddox, M.D. (Tr. 447). Plaintiff 

complained of back pain with left buttock and leg pain (id.). Dr. Maddox recommended a trial of

physical therapy geared toward lumbar stabilization, a foraminal epidural injection, and the use of

Celebrex (id.). Plaintiff obtained the epidural steroid injection and returned to Dr. Maddox on

January 8, 2007 (Tr. 446). Plaintiff reported no improvement and continued to complain of sciatica

on the left (id.). Because Dr. Maddox was unsure of Plaintiff’s specific work-related abilities, he

referred Plaintiff for functional capacity evaluation (“FCE”) (id.).

Plaintiff presented for the FCE on February 8, 2007, but the FCE was not completed because

Plaintiff stated he could not finish due to pain (Tr. 451). The evaluator noted that Plaintiff stated

he could not walk on his toes and heels, he closed his eyes during most activities, and he began

shaking the static gauge before he was instructed to begin (id.). Plaintiff also demonstrated a high

pain profile in his pre-FCE questionnaire and during the FCE (id.). The evaluator opined that

Plaintiff’s “subjective responses and behavior were out of proportion to his identified pathology and

objective clinical findings” (Tr. 452).

Plaintiff returned to Dr. Maddox the following day (Tr. 445). Dr. Maddox opined that

Plaintiff could not return to his past “unrestricted heavy manual labor” job but could perform work

at sedentary to light levels of exertion if he alternated sitting, standing, and walking (see id.). 

Plaintiff underwent another epidural steroid injection on February 14, 2007, and returned to Dr.

Maddox on April 9, 2007 (Tr. 430, 444). Plaintiff stated his pain had not improved, so Dr. Maddox

recommended a discography, which was performed on April 23, 2007 (see Tr. 444, 458). On May

16, 2007, Plaintiff returned to Dr. Maddox to discuss the discography results (Tr. 443). As

explained by Dr. Maddox, the discography showed an extension of the nucleus to the posterior

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peripheral annulus, more to the left side (id.; see also Tr. 450 (discography results, reflecting mild

annular degeneration at L4-L5 and L5-S1)). Although Dr. Maddox noted that Plaintiff had

discogenic pain at the L4-L5 level, he recommended to Plaintiff that he try to return to work in a

sedentary to light position and give his disc condition more time to heal (Tr. 443). 

Plaintiff returned to the ER on July 11, 2007, and complained of pain in his left leg and back

for the past year (Tr. 465). The ER physician assessed chronic back pain (Tr. 466). Plaintiff

returned again on July 15, 2007, and complained of back pain for the past eight months (Tr. 467). 

Musculoskeletal and neurological examinations were normal, as was Plaintiff’s gait and station;

Plaintiff was assessed with back pain (Tr. 468).

On September 17, 2007, Plaintiff presented to the North Florida Sports Medicine Clinic and

saw R. Spencer Stoetzel, M.D. (Tr. 517). Plaintiff reported low back pain with radicular symptoms

in the left lower extremity (id.). A physical examination revealed 4/5 to 5/5 muscle strength in the

lower extremities, with mildly decreased sensation over the left dorsal foot (id.). Dr. Stoetzel

assessed DDD at L4-5, low back pain, and left lower extremity radiculitis (id.). After considering

Plaintiff’s report that all prior treatment modalities had been unsuccessful, Dr. Stoetzel

recommended fusion surgery and noted he would ask Plaintiff’s workers’ compensation carrier to

approve an MRI and the surgery (see Tr. 518).

On October 1, 2007, Plaintiff presented to Samuel Ward, M.D., for a consultative physical

examination at the request of the Social Security Administration (Tr. 479). Plaintiff reported chronic

pain in his legs and lower back (id.). Plaintiff’s examination was essentially normal, with a few

exceptions. For example, motor strength in the upper and lower extremities was full (i.e., 5/5),

except in the left leg, which nearly full (i.e., 4/5) (id.). Additionally, sensation was grossly intact;

reflexes were “2+ and symmetrical”; straight leg raising (“SLR”), sitting and supine, was within

normal limits on the right but caused pain on the left at ten degrees; and ranges of motion were

within normal limits except in the lumbar spine (Tr. 479–82). Dr. Ward noted that Plaintiff did not

need an assistive device, although he walked with a limp due to pain, and Plaintiff could heel and

toe walk on the right but not the left (Tr. 479). Dr. Ward diagnosed hypertension and sciatica (id.).

On October 16, 2007, Dr. Stoetzel performed a lumbar decompression and, at L4-L5, a

laminectomy, posterior spinal fusion, transforaminal lumbar interbody fusion, and arthrodesis (Tr.

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514). Plaintiff returned to Dr. Stoetzel on October 31, 2007, and stated he was doing “great from

back surgery” (Tr. 513). He reported his leg pain had improved and his back was “quite stable,”

although he reported numbness in two fingers of the right hand (id.). Dr. Stoetzel advised Plaintiff

to continue “limited weight bearing on his back” (id.). On November 29, 2007, Plaintiff saw Dr.

Stoetzel and stated his back and leg pain were significantly better after the surgery, but he continued

to experience some low back pain and left lower extremity radicular symptoms (Tr. 511). Plaintiff

also reported left thigh and calf paresthesias and continued numbness in his fingers (id.). Dr.

Stoetzel prescribed Lyrica for the neuritis and advised Plaintiff to return in six weeks (id.). Plaintiff

returned on January 10, 2008, with essentially the same complaints (see Tr. 510). A physical

examination revealed 4/5 to 5/5 motor strength in all groups in the lower extremities and ambulation

without difficulty; Dr. Stoetzel advised Plaintiff to “continue light duty at work” (Tr. 510). Due to

Plaintiff’s complaints of numbness, Dr. Stoetzel recommended an electromyography (“EMG”) of

the upper extremities, which Plaintiff obtained—along with nerve conduction studies—on March

4, 2008 (Tr. 510, 541, 547). The testing revealed tardy ulnar palsy and very mild sub-clinical carpal

tunnel syndrome on the right side, with no evidence of cervical radiculopathy (Tr. 541). On March

10, 2008, Plaintiff returned to Dr. Stoetzel who opined that the ulnar symptoms were likely from

Plaintiff’s hospitalization and not a result of surgery (Tr. 547). When Plaintiff returned about one

month later, Dr. Stoetzel noted that Plaintiff continued to report left lower extremity radicular type

symptoms and right-sided neuropathy (Tr. 548). As a result, Dr. Stoetzel recommended a

computerized tomography (“CT”) myelogram to determine whether any nerve root compression was

present (although Dr. Stoetzel was “99%” sure no compression would be found) (Tr. 547–48).

On June 5, 2008, Plaintiff underwent a lumbar myelogram and post-myelogram CT of the

lumbar spine (Tr. 565). The impression was “posterior fusion at L4-5 with decompressive

laminectomies, [with] no residual recurrent disc herniation or visible nerve root compression” (id.). 

Plaintiff returned to Dr. Stoetzel on June 12, 2008, with complaints of low back, left leg, and right

hand pain (Tr. 564). Dr. Stoetzel recommended ulnar release of Plaintiff’s right arm as well as

further, non-operative treatment for his low back, noting that the CT myelogram revealed no

evidence of nerve root impingement (id.). On July 17, 2008, Dr. Stoetzel noted that Plaintiff

complained of swelling in ankles, but the swelling was “not perceptible” (Tr. 563). Dr. Stoetzel

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placed Plaintiff at maximum medical improvement (“MMI”) as to his back, with the following

disability ratings: 9% (total), 7% (for the operative disc level), and 1% (for each of the fusion

levels) (id.). He noted Plaintiff had a “good decompression” that was “going on to a solid fusion,”

and he “put [Plaintiff] at permanent light duty type work” with no lifting more than fifteen pounds,

standing more than forty-five minutes, or walking more than 350 feet (id.). And on August 14,

2008, Plaintiff returned to Dr. Stoetzel and reported continued, right ulnar neuropathy (Tr. 562).

Although Dr. Stoetzel had recommended cubital tunnel release and ulnar nerve transposition, the

workers’ compensation carrier had not approved the procedure (id.). Noting that Plaintiff’s lumbar

fusion looked stable, Dr. Stoetzel essentially stated there was nothing further he could do for

Plaintiff other than referring him to pain management (see id.; see also Tr. 589).6

On January 14, 2009, upon referral from Dr. Stoetzel Plaintiff presented to John Marsella,

M.D., for a pain management evaluation (see Tr. 577). Plaintiff reported constant pain in the left

lumbar region, and hip, as well as left foot numbness and numbness in the right hand, wrist, and ring

finger and small finger (Tr. 577–78). Dr. Marsella assessed post-laminectomy syndrome in the

lumbar region and lesion of ulnar nerve (Tr. 581). He recommended that Plaintiff continue on

“medical management without change” (i.e., hydrocodone/acetaminophen) through Dr. Stoetzel (see

Tr. 577, 581). Plaintiff returned to Dr. Marsella in April 2009 and underwent a selective nerve root

block at L5-S1; the hydrocodone/acetaminophen was discontinued (see Tr. 623–24). In May 2009

Dr. Marsella stated that Plaintiff’s Minnesota Multiphasic Personality Inventory (“MMPI”) test

results reflected a “type p” personality, that is, one apt to show resistance to treatment and/or one

with the worst and greatest number of symptoms with the least likelihood of improvement (Tr. 611,

652). A physical examination revealed a normal gait and 4/5 strength, normal tone, and normal bulk

in the left lower extremity, with no atrophy (Tr. 610–11). Plaintiff saw Dr. Marsella through

December of 2009. Plaintiff essentially continued to report pain with no improvement, and Dr.

Marsella responded by prescribing a TENS unit and additional medication such as Percocet,

Methadone, Cymbalta and/or Lunesta. In December 2009, Dr. Marsella recommended physical and

6 On December 10, 2008, Dr. Stoetzel completed a Clinical Assessment of Pain form and a Physical Capacities

Evaluation (Tr. 571–72), which will be discussed more fully, infra.

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psychological therapy (Tr. 653).7

Plaintiff returned to Dr. Stoetzel in mid-2009 for follow-up regarding his right cubital tunnel

syndrome (Tr. 629). Plaintiff reported persistent symptoms and that “nothing ha[d] changed” (id.). 

The surgery previously recommended by Dr. Stoetzel still had not been authorized, so he agreed to

submit another request to the workers’ compensation carrier (id.). Shortly thereafter Plaintiff

underwent a right ulnar nerve transposition, submuscular, and decompression for his right cubital

syndrome (Tr. 627). Plaintiff returned to Dr. Stoetzel for follow-up on July 13, 2009 (Tr. 626). 

Plaintiff stated he was “doing well,” although some paresthesias remained in the right hand (Tr.

627). Dr. Stoetzel recommended that Plaintiff participate in physical/occupational therapy, and he

released Plaintiff to “modified” work duty, with no lifting with the right hand (Tr. 626).

C. Other Information Within Plaintiff’s Claim File

On October 18, 2007, and April 28, 2008, non-examining agency physicians completed

Physical RFC Assessments (Tr. 497–504). In nearly identical assessments, the physicians generally

opined that Plaintiff is capable of performing light work (id.; see also 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

 The first physician based her

opinions in large part on the results of Dr. Ward’s consultative examination, which occurred prior

to Plaintiff’s fusion surgery (see Tr. 498). The second physician based his opinions on a more

comprehensive record, which included Plaintiff’s post-surgery records (see, e.g., Tr. 550). He also

noted that Plaintiff did not appear entirely credible because his reported symptoms and limitations

were inconsistent with the objective medical evidence (Tr. 554). 

V. DISCUSSION

7 The ALJ’s opinion contains a more detailed summary of Dr. Marsella’s treatment records (see Tr. 24–25),

which need not be repeated here.

8 The main difference between the two opinions is that the second physician imposed “occasional” postural

limitations, and the first imposed no such restrictions (see Tr. 551, 499).

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Plaintiff raises two issues in this appeal, which the undersigned addresses in the following

order. First, Plaintiff contends the ALJ erred in evaluating his credibility (Doc. 10 at 12, 18–21). 

Second, Plaintiff contends the ALJ erred by failing to assign proper weight to the opinions of Dr.

Stoetzel (id. at 12–18).

A. Evaluation of Plaintiff’s Subjective Complaints

Pain and other subjective complaints are treated by the Regulations as symptoms of

disability. Title 20 C.F.R. § 404.1529 provides in part that the Commissioner will not find disability

based on symptoms, including pain alone, “. . . unless medical signs or findings show that there is

a medical condition that could be reasonably expected to produce these symptoms.” The Eleventh

Circuit has articulated a three-part pain standard, sometimes referred to as the Hand test, as follows:

In order to establish a disability based on testimony of pain and other symptoms, the

claimant must satisfy two parts of a three-part test showing: (1) evidence of an

underlying medical condition; and (2) either (a) objective medical evidence

confirming the severity of the alleged pain; or (b) that the objectively determined

medical condition can reasonably be expected to give rise to the claimed pain.

Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir. 1986) (originally adopting the three-part pain

standard). The Eleventh Circuit continues to follow the Hand test. Wilson v. Barnhart, 284 F.3d

1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); Ogranaja

v. Commissioner of Social Security, 186 Fed. Appx. 848, 2006 WL 1526062, at *3 (11th Cir. June

5, 2006) (quoting Wilson); Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1216 (11th Cir. 1991).

Underlying the Hand standard is the need for a credibility determination concerning a

plaintiff’s complaints. Those complaints are, after all, subjective. “[T]he ascertainment of the

existence of an actual disability depend[s] on determining the truth and reliability of [a claimant’s]

complaints of subjective pain [or other symptom].” Scharlow v. Schweiker, 655 F.2d 645, 649 (5th

Cir. Sept. 1981) (holding that the ALJ must resolve “the crucial subsidiary fact of the truthfulness

of subjective symptoms and complaints”).9

 People with objectively identical conditions can

experience significantly different levels of pain, and pain is more readily treated in some than in

others. “Reasonable minds may differ as to whether objective medical impairments could

9 Decisions of the United States Court of Appeals for the Fifth Circuit decided on or before September 30, 1981

are binding precedent in the Eleventh Circuit. Bonner v. Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

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reasonably be expected to produce [the claimed symptom]. This determination is a question of fact

which, like all factual findings by the [Commissioner], is subject only to limited review in the courts

to ensure that the finding is supported by substantial evidence.” Hand, 761 F.2d at 1548–49. It is

within the ALJ’s “realm of judging” to determine whether “the quantum of [symptoms a claimant]

allege[s] [is] credible when considered in the light of other evidence.” Arnold v. Heckler, 732 F.2d

881, 884 (11th Cir. 1984). The evidence as a whole, including the existence of corroborating

objective proof or the lack thereof, and not just a physician’s belief or the plaintiff’s claims, is the

basis for the ALJ’s credibility determination.

Here, in discussing Plaintiff’s credibility the ALJ noted that “whenever . . . [subjective

complaints] are not substantiated by objective medical evidence, [she] must make a finding on the

credibility of the [subjective complaints] based on a consideration of the entire case record” (Tr. 20)

(emphasis added). The ALJ then summarized Plaintiff’s testimony and, immediately thereafter,

summarized the medical evidence in Plaintiff’s file (see Tr. 21–25). The ALJ ultimately concluded

that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of [his]

symptoms are not credible to the extent they are inconsistent with the . . . [RFC]”10 (Tr. 20–21)

(emphasis added).

 Plaintiff contends the ALJ failed to follow the Hand test and/or regulations because she

provided no basis for her rejection of Plaintiff’s complaints (Doc. 10 at 21). The undersigned

concludes, however, that although the ALJ did not systematically organize her discussion of

Plaintiff’s credibility in a factor by factor fashion, or include it in a separate section of her decision,

her evaluation of Plaintiff’s subjective complaints complied with the law and regulations. Initially,

the ALJ articulated the pain standard in her decision (see Tr. 20). She also specifically referenced

20 C.F.R. § 404.1529 (id.). See Wilson, 284 F.3d at 1226 (approving an ALJ’s reference to and

application of the standard set out in 20 C.F.R. § 404.1529, because that regulation “contains the

same language regarding the subjective pain testimony that this court interpreted when initially

establishing its three-part standard”). And, while the ALJ could have better articulated her findings,

10 Thus, ALJ did not discredit all of Plaintiff’s complaints; rather, she found incredible only those complaints

that would render Plaintiff incapable of performing sedentary work.

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when her decision is read as a whole the reasons for discounting the most extreme of Plaintiff’s

complaints are evident (see Tr. 20–26).11

In discussing the medical evidence the ALJ noted that in February 2007, Plaintiff

demonstrated a high pain profile during the FCE and in his pre-FCE questionnaire, and the evaluator

noted that Plaintiff’s subjective responses and behavior were out of proportion to the identified

pathology and objective clinical findings (Tr. 22). Also in February 2007, Dr. Maddox opined that

Plaintiff could work in a sedentary to light job that would allow him to sit, stand, and walk at

intervals (id.). And in May 2007, following the discography, Dr. Maddox again opined that Plaintiff

should return to work at sedentary to light levels of exertion (id.). Continuing, the ALJ noted that

ER records from July 2007 show that Plaintiff had a normal gait, station, and neurological

examination (id.). Likewise, Dr. Stoetzel’s September 2007 examination yielded essentially normal

results, as did Dr. Ward’s consultative examination in October 2007 (as noted by the agency

physician on the first RFC assessment) (Tr. 22–23).12

The ALJ then discussed Plaintiff’s fusion surgery and noted that Plaintiff significantly

improved following the surgery, although he continued to complain of pain (Tr. 23). However,

despite Plaintiff complaints of pain a CT scan revealed he had no nerve root impingement or

compression (Tr. 23, 564). Additionally, in July 2008 Plaintiff reported swelling in his ankles, but

no swelling was visible to Dr. Stoetzel (Tr. 24). On the same day Dr. Stoetzel placed Plaintiff at

MMI, with a total disability rating of only 9%, and he released Plaintiff to light duty work (Tr. 24). 

And in December 2008, Dr. Stoetzel completed a physical capacities evaluation and rendered

opinions that are generally consistent with an ability to perform sedentary work (these opinions are

discussed more fully, infra). 

The ALJ also noted that a consultative psychologist, who examined Plaintiff on March 11,

2009, found, based on psychiatric testing, that Plaintiff’s personality characteristics would lead to

11 Although the undersigned has concluded that the ALJ’s credibility findings are sufficient, the court does not

endorse the manner in which she made her findings. See Cross v. Comm’r. of Social Security, 373 F. Supp. 2d 724, 728

(N.D. Ohio 2005) (affirming the decision of the Commissioner, but noting that the ALJ’s articulation “leaves much to

be desired”).

12 While not specifically noted by the ALJ, the record also reflects that Plaintiff’s examination by Dr. Choquette

was essentially normal, and Dr. Choquette opined that Plaintiff could return to light duty work within approximately one

month of his work-related injury and to full duty work within approximately two months (see Tr. 448–49).

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his describing multiple and magnified symptoms, with a strong tendency toward manipulative and

opportunistic behavior (Tr. 25, 597–98). Moreover, Plaintiff’s activities of daily living were

inconsistent with his alleged disabling exertional limitations (Tr. 26). For example, the record

shows—as the ALJ found—that Plaintiff admitted to Dr. Marsella that he could perform activities

of daily living (Tr. 25, 609, 619). Additionally, the record reveals that Plaintiff cared for his

seven-month-old child alone on some days and with the assistance of his sister-in-law on other days,

picked up the child (who weighed about eighteen pounds), drove on a daily basis, took his two

daughters to school and picked them up from school, occasionally cooked and folded clothes, and

attended church regularly (Tr. 19, 40–41, 54–57, 473–74). And finally, the ALJ noted that the

opinions of the second non-examining agency physician are inconsistent with Plaintiff’s allegations,

because the physician—who considered a comprehensive record—opined that Plaintiff could

perform light work (which, of course, requires greater physical capacities than sedentary work) (Tr.

26 (referencing Tr. 549–56)).

The undersigned is not charged with making independent fact conclusions, but only with

reviewing the substantiality of the evidence underlying the conclusions reached by the ALJ. See

Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Having done so, the undersigned

concludes that the ALJ’s reasons for discrediting Plaintiff’s subjective complaints—to the extent

those complaints are inconsistent with an ability to perform sedentary work—are substantially

supported by the record. Moreover, the reasons for discrediting Plaintiff’s complaints were properly

considered. See, e.g., Majkut v. Comm’r of Soc. Security, 394 Fed. Appx. 660 (11th Cir. 2010)

(affirming ALJ’s credibility findings where ALJ relied, in part, on a physician’s notation that the

claimant “might be embellishing symptoms”); 20 C.F.R. § 404.1529 (absence of an objective

medical basis to support the degree of severity of subjective complaints is an important factor to

consider in evaluating the credibility of testimony and complaints); Macia v. Bowen, 829 F.2d 1009,

1012 (11th Cir. 1987) (ALJ may consider such daily activities when evaluating subjective

complaints of disabling pain and other symptoms). Accordingly, Plaintiff is not entitled to relief.

B. Dr. Stoetzel’s Opinions

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As previously noted, on December 10, 2008, Dr. Stoetzel completed a Clinical Assessment

of Pain form (“CAP”) and a Physical Capacities Evaluation (“PCE”) (Tr. 571–72). On the CAP he

opined that Plaintiff’s pain was present to such an extent as to be distracting to adequate

performance of daily activities or work (Tr. 571). He also opined that physical activity, such as

walking, standing, sitting, bending, stooping or moving extremities, would cause some increase in 

pain, but not to such an extent as to prevent adequate functioning in such tasks (id.). He further

opined that the side effects of Plaintiff’s medication would affect his ability to work by causing

some limitations, but not to such a degree as to create serious problems in most instances (id.). 

Next, on the PCE Dr. Stoetzel opined that Plaintiff could lift or carry up to ten pounds occasionally

and five pounds frequently, sit eight hours, and stand or walk one hour in an eight-hour workday (Tr.

572). He also opined Plaintiff could rarely climb stairs or ladders, balance, bend, stoop, and work

around hazardous machinery; occasionally reach, operate a motor vehicle, and perform fine

manipulation (i.e., finger dexterity); and frequently push, perform gross manipulation (i.e., grasp,

twist, and handle), and work around environmental problems such as dust or allergens (id.). Finally,

Dr. Stoetzel opined that Plaintiff would miss four days of work per month and explained that

Plaintiff was status post lumbar fusion and “ha[d] persistent cubital tunnel syndrome” (id.). The

ALJ acknowledged the foregoing opinions and did not entirely discount them; rather, she concluded

that the opinions “should be given some weight” because the record supports some of the limitations

(Tr. 25). More specifically, the ALJ credited those opinions that are consistent with an ability to

perform sedentary work without excessive absenteeism (see Tr. 25–26). 

As this court is well aware, substantial weight must be given to the opinion, diagnosis, and

medical evidence of a treating physician unless there is good cause to do otherwise. See Lewis v.

Callahan, 125 F.3d 1436, 1439–41 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th

Cir. 1991); Sabo v. Chater, 955 F. Supp. 1456, 1462 (M.D. Fla. 1996); 20 C.F.R. § 404.1527(d). 

“‘[G]ood cause’ exists when the: (1) treating physician’s opinion was 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.” Phillips v. Barnhart, 357 F.3d 1232, 1240–41

(11th Cir. 2004) (citation omitted). The ALJ may discount a treating physician’s opinion or report

regarding an inability to work if it is unsupported by objective medical evidence or is wholly

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conclusory. See Edwards, 937 F.2d at 580 (finding that the ALJ properly discounted treating

physician’s report where the physician was unsure of the accuracy of his findings and statements). 

Where a treating physician has merely made conclusory statements, the ALJ may afford them such

weight as is supported by clinical or laboratory findings and other consistent evidence of a

claimant’s impairments. See Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986); see also

Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987). When a treating physician’s opinion does

not warrant controlling weight, the ALJ must nevertheless weigh the medical opinion based on: 1)

the length of the treatment relationship and the frequency of examination; 2) the nature and extent

of the treatment relationship; 3) medical evidence supporting the opinion; 4) consistency with the

record as a whole; 5) specialization in the medical issues at issue; and 6) other factors which tend

to support or contradict the opinion. 20 C.F.R. § 404.1527(d). Generally, a treating physician’s

opinion is entitled to more weight than a consulting physician’s opinion. See Wilson v. Heckler, 734

F.2d 513, 518 (11th Cir. 1984); see also 20 C.F.R. § 404.1527 (d)(2).

Initially, the ALJ included most of Dr. Stoetzel’s opinions in Plaintiff’s RFC, and the few

opinions she excluded (with one exception) are not substantially different from those she included. 

For example, the lifting and carrying restrictions in the RFC and in Dr. Stoetzel’s opinions are

identical; the sitting, standing, and walking restrictions are nearly identical (the RFC permits six

hours of sitting a day and two hours of standing or walking, in a job with a sit/stand option, while

Dr. Stoetzel’s opinions permit eight hours of sitting and one hour or standing or walking); and the

climbing restrictions are similar (the RFC precludes climbing ladders, ropes and scaffolds and

permits occasional climbing of ramps or stairs, while Dr. Stoetzel’s opinions limit climbing of stairs

and ladders to “rarely” and offers no opinion as to ropes or scaffolds) (compare Tr. 12 with Tr. 572). 

Thus, the opinions of Dr. Stoetzel that appear to be at issue here are: (1) his opinion that Plaintiff

would be expected to miss four days of work per month (such absenteeism would preclude all work

according to the vocational expert (“VE”) (see Tr. 67)), and (2) his opinion that pain would be

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present to such an extent as to be distracting to adequate performance of Plaintiff’s daily activities

or work.13

In discounting Dr. Stoetzel’s opinions, the ALJ stated that the opinions were offered with

“little explanation, rationale, clinical findings, or reference to objective testing” (Tr. 25–26). The

ALJ also stated that the opinions appear largely based on Plaintiff’s subjective complaints (id.).

The ALJ’s statements and related findings are fully supported by the record. First, as

previously noted, Dr. Stoetzel offered only the following explanation/rationale for his opinions: 

Plaintiff was status post lumbar fusion and had persistent cubital tunnel syndrome. Although the

explanation is factually correct, it does not provide a basis for the opinions. And, as the ALJ found,

the explantion does not refer to any clinical findings, objective tests, or even Dr. Stoetzel’s own

treatment records.

Moreover, Dr. Stoetzel’s treatment records do not support the opinions. For example, Dr.

Stoetzel rendered the opinions at issue here on December 10, 2008, but prior to that date his physical

examinations of Plaintiff were largely normal (e.g., they revealed good strength in the lower

extremities and ambulation without difficulty). His treatment records also reflect that Plaintiff’s

fusion surgery in mid-October 2007 was objectively successful (i.e., a CT scan revealed “good

decompression” and a “solid fusion”). And by the end of October 2007, Plaintiff’s pain had

improved, his back was “quite stable,” and Dr. Stoetzel authorized limited weight bearing. 

Additionally, in January 2008 Dr. Stoetzel recommended continued light duty work, and in July

2008 he recommended permanent light duty work. Stated simply, his treatment records offer no

support for the opinion that Plaintiff’s condition would cause him to miss four days of work per

month, suffer distracting pain, or otherwise be incapable of performing work.

13 Plaintiff does not identify the opinions at issue in this claim for relief, but it is evident he challenges the ALJ’s

rejection of Dr. Stoetzel’s absenteeism opinion (see Doc. 10 at 11 (referencing Tr. 67)). In the same discussion, however,

Plaintiff points to testimony of the VE that an “[individual who] would be unable to sustain concentration for two hour

periods due to the exacerbation of pain, and the side effect from medications” would be unemployable (id.). Dr. Stoetzel

did not describe Plaintiff’s pain or medication side effects in this manner. As previously discussed, on the CAP Dr.

Stoetzel opined that side effects were unlikely to cause serious problems. He also opined that pain would be present to

such an extent as to be distracting to adequate performance of daily activities or work. Nevertheless, the undersigned

construes Plaintiff’s argument as stating that the ALJ rejected the latter opinion of Dr. Stoetzel (i.e., Plaintiff’s pain is

“distracting”) and, further, that Plaintiff challenges the rejection.

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Likewise, because the opinions lack an explanation or reference to clinical findings, testing,

or treatment records, Dr. Stoetzel must have based his opinions on Plaintiff’s subjective complaints,

as the ALJ found. Because the ALJ properly determined that Plaintiff was less than fully credible,

however, she—correspondingly—properly determined that the most extreme of Dr. Stoetzel’s

opinions were not credible to the extent they were based on Plaintiff’s subjective complaints. Thus,

the ALJ did not err in discounting a very limited number of Dr. Stoetzel’s opinions. The reasons

she stated for doing do are supported by substantial record evidence, and Plaintiff is not entitled to

reversal on this ground. 

For the foregoing reasons, 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, Plaintiff has failed to show that the ALJ applied improper legal standards, erred in

making his findings, or that any other ground for reversal exists. 

Accordingly, 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 23rd day of November 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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