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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JULIET VALENCIA,

Plaintiff,

vs. Case No. 5:11cv126-WCS

MICHAEL J. ASTRUE, 

Commissioner of Social Security,

Defendant.

 /

MEMORANDUM OPINION

This is a social security case referred to me upon consent of the parties and

reference by District Judge Hinkle. Doc. 15. It is concluded that the decision of the

Commissioner should be affirmed.

Procedural status of the case

Plaintiff, Juliet Valencia, applied for disability insurance benefits. Her last date of

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

due to morbid obesity, a history of major depression and bipolar disorder, cervical disc

disease, and low back pain secondary to mild degenerative joint disease at L4-S1, with

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onset on September 18, 2006. Plaintiff was 43 years of age on the alleged onset date,

has two years of college, and has past relevant work as a cashier and warranty clerk in

a car dealership. The Administrative Law Judge found that Plaintiff had the residual

functional capacity to do a limited range of light work, can still perform her past relevant

work as a warranty clerk, 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

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

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

Case No. 5:11cv126-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

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

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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).

Legal analysis2

Whether the ALJ gave sufficient reasons supported by substantial

evidence to discount the opinion of the treating physician

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). This is so because treating physicians:

are likely to be the medical professionals most able to provide a detailed,

longitudinal picture of your medical impairment(s) and may bring a unique

perspective to the medical evidence that cannot be obtained from the

objective medical findings alone or from reports of individual examinations,

such as consultative examinations or brief hospitalizations.

 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.

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20 C.F.R. § 404.1527(d)(2). Important to the determination of whether there is a

"detailed, longitudinal picture" of impairments is the length of the treatment relationship,

the frequency of examination, the extent of the knowledge of the treating source as

shown by the extent of examinations and testing, the evidence and explanation

presented by the treating source to support his or her opinion, the consistency of the

opinion with the record as a whole, and whether the treating source is a specialist with

respect to the particular medical issues. 20 C.F.R. § 404.1527(d)(2)-(5).

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)

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(finding good reasons articulated by the ALJ to discount the treating physician's

opinion).

A medical source opinion that an individual is "disabled" or "unable to

work," has an impairment(s) that meets or is equivalent in severity to the

requirements of a listing, has a particular RFC, or that concerns the

application of vocational factors, is an opinion on an issue reserved to the

Commissioner. Every such opinion must still be considered in

adjudicating a disability claim; however, the adjudicator will not give any

special significance to the opinion because of its source. See SSR 96-5p,

"Titles II and XVI: Medical Source Opinions on Issues Reserved to the

Commissioner."

SSR 96-8p, footnote 8.

Plaintiff was treated for back pain at the White-Wilson Medical Center, P.A., for a

number of years by Gilbert L. Vigo, M.D., and others. On May 20, 2008, Dr. Vigo wrote:

"Patient is unable to work [due] to severe radiculopathy/fibromyalgia." R. 399.

The Administrative Law Judge gave "limited weight" to Dr. Vigo's opinion. He

reasoned that it was:

not supported by the objective evidence in the hearing record. The

doctor's own treatment notes fail to reveal the type of significant clinical

and laboratory abnormalities one would expect if the claimant were in fact

so disabled. Office progress notes indicate the claimant had only

occasional radiation of pain into the right lower extremity and Dr. Vigo's

reports did not even include an assessment for fibromyalgia at the time

this opinion was given. As Dr. Hancock testified, the diagnosis of

fibromyalgia just seemed to appear out of nowhere.

R. 22.

Earlier in the opinion, the ALJ had found that the "objective medical evidence and

course of treatment" was "not consistent with the claimant's allegations of total

disability." R. 19. He concluded that "the totality of the objective medical findings do

not support the claimant's subjective complaints of severe and debilitating pain." R. 20.

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In his discussion of the medical evidence, the ALJ noted that Plaintiff had had

cervical surgery at C4-C5 in November, 2006, and that by March, 2007, Plaintiff had

"complete resolution of her cervical symptoms." R. 19. The ALJ also found:

In December 2006, following complaints of chronic low back pain, a CT

scan of the lumbar spine revealed a slight retrolisthesis and bulge at L5-

S1 resulting in minimal deformity of the thecal sac and no canal stenosis. 

Facet hypertrophy was present at L4-5. In January 2007, a physical

examination showed the claimant had good ankle jerk on the right side

and good toe walking with no sensory loss, which indicated no S-1

radiculopathy. A course of physical therapy was prescribed; however, in

March 2007, the claimant declined physical therapy consultation. A June

2007 MRI of the lumbar spine revealed degenerative disc disease at L5-

S1 with annular bulging and minimal narrowing of the lateral recesses. A

L4-5, facet hypertrophy with mild annular bulging was noted. The claimant

was provided injection therapy and medication adjustments for pain relief

(Exhibit 14F). In October 2007, it was noted that the claimant's pain was

substantially better and that she had good response to medication

changes (Exhibit 10F). In 2008, treatment records consistently indicated

the claimant's pain was very well controlled. The claimant was noted to

experience orthostatic hypotension secondary to the use of Neurontin and,

following a dosage adjustment, the record does not document any further

such episodes (Exhibit 17F).

R. 19. The ALJ further determined that Plaintiff had received narcotic pain medications

and limited epidural steroid injections, and those treatments "had been generally

successful in controlling her pain symptoms." R. 20. He found that the records did not

corroborate her complaints of medication side effects. Id. Finally, the ALJ noted that

Plaintiff had failed to attend physical therapy as prescribed. Id.

The ALJ also relied upon the testimony of Charles I. Hancock, M.D., a board

certified orthopedic surgeon, who had reviewed Plaintiff's medical records. R. 19-20. 

Although Dr. Hancock found that the lumbar spinal MRI showed facet degeneration and

moderate disc bulging at L4-5, he found no significant neuroforaminal narrowing, disc

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herniation, spinal stenosis, or actual compression of the nerve root. Id. Dr. Hancock

observed negative results from straight leg raising tests, and no signs of any reflex,

motor, or sensory loss. R. 20. Finally, the ALJ observed that Dr. Hancock was

skeptical of the diagnosis of fibromyalgia because the records did not identify 11 of the

18 diagnostic trigger points for fibromyalgia. Id.

The evidence relevant to these findings is the following. On December 1, 2006,

the surgeon, Dr. Levine, found that Plaintiff was doing well after the cervical surgery and

her strength was good. R. 418. He noted that she complained of a lot of back pain,

with radiation down to her knees, but on examination, he found that she had good

strength in her leg, her knee jerks were intact and he said that she had no obvious

radicular sensory loss. Id.

On December 6, 2006, Plaintiff had a lower back MRI. R. 416. This revealed a

transitional lower lumbar segment, with the lowest fully developed level at L5-S1. Id. It

also revealed "slight retrolisthesis and prominent bulge or very small broad based

central disc protrusion resulting in minimal deformity of the thecal sac" at L5-S1, but with

no canal stenosis. Id. Finally, there was facet hypertrophy at L4-L5. Id.

On January 9, 2007, Gerardo Cruz, physician's assistant, saw Plaintiff at the

White-Wilson Medical Center. R. 412, 414. Her chief complaint was low back pain. R.

412. A recent gastric bypass with significant weight loss was noted. Id. Her upper

back was tender to palpation, but she had good range of motion in her extremities. R.

414. A prescription for Lortab3

 was continued. Id.

 3 Lortab is one of the brand names for hydrocodone. PHYSICIANS' DESK REFERENCE

(2004), p. 3233. Hydrocodone is a semisynthetic narcotic derivative of codeine having

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On January 18, 2007, Dr. Levine found that Plaintiff's neck was healing well, but

she complained of "some low back pain with some radiation into the leg on the right

side." R. 411. Dr. Levine noted that a CT scan showed "a tiny bit of retrolisthesis at 5-1

and collapses of the L5-S1 disk space." Id. He said that he did not believe that he saw

any disk herniation, but said that "there is a slight density on the right side of the canal

that could possibly be a small lateral disk herniation." Id. Again, he found that Plaintiff

had "good ankle jerk on the right side and good toe walking and no sensory loss,

indicating no S1 radiculopathy." Id. He referred Plaintiff to a physical therapist "to do

low back rehabilitation." Id.

On March 6, 2007, physician's assistant Cruz saw Plaintiff at the White-Wilson

Medical Center. R. 407-408. Her upper back was tender with palpation, but she had

good range of motion in her extremities. R. 408. Plaintiff declined physical therapy. Id.

On June 7, 2007, Plaintiff had another MRI of her lumbar spine. R. 406. The

impression was degenerative disc disease at L5-S1 with annular bulging and minimal

narrowing of the lateral recesses, and facet hypertrophy with mild annular bulging at L4-

L5. Id.

On July 9, 2007, she again was seen by PA Cruz. R. 404-405. Plaintiff's chief

complaints were skin lesions she wanted removed and low back pain. R. 404. She was

found to have good range of motion of her extremities, but her right buttock was tender. 

R. 404-405.

sedative and analgesic effects more powerful than those of codeine. DORLAND'S

MEDICAL DICTIONARY FOR HEALTHCARE CONSUMERS.

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On July 27, 2007, PA Cruz again saw Plaintiff. R. 402-403. Fibromyalgia was

not on the problem list. R. 402. Plaintiff's chief complaint was exacerbation of low back

pain after lifting a chair. Id. Plaintiff reported some radiculopathy into her buttocks and

that Lortab was not helping. Id. On examination, PA Cruz found tenderness in

Plaintiff's lower back at belt level and "several trigger points." Id. He thought that

Plaintiff's lower back pain was moderate to severe, not well controlled. R. 403. An

analgesic injection was provided with approval from Dr. Vigo. Id.

On November 21, 2007, Dr. Vigo saw Plaintiff. R. 400-401. He found that the

cervical surgery had relieved her symptoms. R. 400. Plaintiff continued to report

"significant pain in the right buttock area, deep and most consistent with piriformis

syndrome[4

] which is now intractable." Id. She reported that the pain had become

"almost unbearable with no radicular symptoms." Id. On examination, however, Dr.

Vigo found only "slight right hip flexor tenderness," with "some tenderness upon medial

rotation of the hip flexors as well as extension." Id. Plaintiff had full range of motion in

her extremities.5 Id. Dr. Vigo's diagnosis was "probable piriformis muscle tenderness." 

R. 401. Dr. Vigo did not mention fibromyalgia as a diagnosis. Id. An MRI was

ordered, and Plaintiff was referred to Dr. Levine for a surgical consult. Id.

On May 20, 2008, Dr. Vigo expressed his opinion that Plaintiff is totally disabled

and unable to work due to fibromyalgia and severe radiculopathy. R. 399.

 4 Piriformis syndrome is sciatica caused by compression or irritation of the sciatic

nerve by the piriformis muscle and is characterized by pain, tingling, and numbness in

the buttocks often extending down the leg. MEDLINE PLUS (MERRIAM-WEBSTER). 

 5

 The notation is "FROM" in the extremities. R. 400.

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On July 1, 2008, Plaintiff was seen for pain management at the White-Wilson

Medical Center by Chirag Patel. R. 512. Plaintiff said that she had chronic lower back

pain and pain in all of her joints, and that the pain had gradually grown worse. Id. She

said that her pain was aggravated by lying down, traveling, coughing, sneezing, lifting,

bending over, climbing stairs, weather changes, or straightening up, and that the pain

was the same whether standing, sitting, or walking. Id. She said she had had good

relief of her pain with Flexeril,6 Robaxin,7 Percocet,8 and Duragesic patches.9 Id. Dr.

Patel noted from the June 7, 2007, MRI that the "annular bulging at L5-S1 does extend

to the ventral surfaces of the S1 nerve roots on the lateral recesses." R. 513. On

examination, Dr. Patel found tenderness to palpation on the midline of Plaintiff's lower

spine at approximately L4 through S1. R. 514. She had increased pain with lumbar

flexion, and mild pain with lumbar extension and rotation. Id. She had pain over the

right sacroiliac joint, but she had full range of motion of her lumbar spine. Id. The

 6 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.

 7

 Robaxin is prescribed, along with rest, physical therapy, and other measures, for

the relief of pain due to severe muscular injuries, sprains, and strains. PDRhealthTM,

PHYSICIANS' DESKTOP REFERENCE.

 8

 Percocet, a narcotic analgesic, is used to treat moderate to moderately severe

pain. It contains two drugs – acetaminophen and oxycodone. Acetaminophen is used

to reduce both pain and fever. Oxycodone, a narcotic analgesic, is used for its calming

effect and for pain. PDRhealthTM, PHYSICIANS' DESKTOP REFERENCE.

 9

 A Duragesic patch is a strong opioid narcotic pain medicatiton used for the relief of

persistent moderate-to-severe chronic (long-term) pain. PDRhealthTM, PHYSICIANS'

DESKTOP REFERENCE. 

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straight leg raising test was negative for pain bilaterally. Id. Her motor strength in her

lower extremities was 5/5, undiminished. Id. Sensation and reflexes were intact. Id. 

Faber and Patrick's tests were negative. Id. Dr. Patel's impression was a history of

chronic lower back pain and fibromyalgia. R. 515. Dr. Patel thought she might benefit

from an epidural steroid injection, but Plaintiff then had a staph infection, and the

procedure was to be scheduled after the staph infection had been resolved. Id. 

On July 9, 2008, Plaintiff was seen again by Dr. Vigo. R. 510-511. He said she

had "diffuse fibromyalgia, hypothroidism, chronic degenerative joint disease of the back"

requiring "high doses of Fentanyl for control of her pain." R. 510. Plaintiff told Dr. Vigo

that her pain was "very well controlled" with her current medication. Id. Dr. Vigo's

assessment was orthostatic hypotension secondary to taking Neurontin (he decreased

the dosage), and depression, controlled. R. 511.

On September 8, 2008, PA Cruz saw Plaintiff at the White-Wilson Medical

Center. R. 506-507. The "problem list," Plaintiff's subjective complaints and medical

history, included recurrent low back pain, fatigue, fibromyalgia, and other problems. R.

506. He noted that her fibromyalgia symptoms had improved and her chronic pain

control was good. Id. Plaintiff was tender paraspinally and along her lower back at her

belt level, but she had good range of motion in her extremities. R. 507. Plaintiff

declined a neurology consult. Id.

On September 23, 2008, Dr. Vigo again saw Plaintiff for a cat bite. R. 504-505. 

Dr. Vigo said that her fibromyalgia was "stable." R. 504. He added "chronic fatigue

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syndrome" to the list of diagnoses and found it to be stable. Id. Her other problems

were also stable. R. 507.

On November 21, 2008, Plaintiff again saw PA Cruz. R. 502-503. He noted that

her fibromyalgia symptoms were improved, her chronic pain control was good, and her

depression had now improved and was controlled. R. 502. He again found that Plaintiff

was tender in the lower back but had good range of motion. R. 503.

Dr. Hancock testified at the evidentiary hearing. R. 29. He reviewed the medical

record. R. 30. He said that it was possible that Plaintiff's lower back problems "go back

to her obesity." R. 31. He noted that the records reflected that on several occasions,

Plaintiff reported severe right buttock pain, and that she had one trial of an epidural

steroid injection. R. 31-32. He said: 

I didn't find any significant neurologic deficits, no report of motor or

sensory loss, and the impressions varied from bulging disc, to piriformis

syndrome, to piriformis tenderness, to mild fasciitis, to fibromyalgia. I did

not find any instance at any place in the record where the fibromyalgia

criteria of tender points, 11 of 18 tender points were outlined. And it just

appeared, seemed like the diagnosis of fibromyalgia just appeared. Can't

find any criteria by which it was diagnosed. She did have MRI that

showed degenerative facets in the L4-5 region, and some moderate

bulging, but no neural foraminal encroachment, and no spinal stenosis,

and no foraminal stenosis. Reported that she did have what is known as a

transitional vertebra. "That's a situation where it looks like a lumbar

vertebra on one side, say on the left side, and the sacral vertebra on the

right side, and the disc at that level is always very narrow, and this case,

it's also, like what I was reported, is narrow. But no discrete or focal

herniation, although there was reported to be annular bulging. She

doesn't have the typical radicular-type symptoms, and straight leg raising

was reported as negative. . . . She did lose over 100 pounds following her

[gastric bypass] surgery, and that's commendable. Still reporting pain in

the low back and the buttock on the right side. . . .

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R. 32. Dr. Hancock thought that the more recent residual functional capacity

assessment by the state agency, for light work, "six/six stand and walk, unlimited

postural activities," was the more reasonable one "in view of her obesity and the

transitional vertebra, and the complaints of pain." R. 33. He noted that Plaintiff's neck

problems had resolved after surgery. R. 35. He agreed that Plaintiff could "sit, stand,

and walk for at least six hours in an eight hour day." Id.

Dr. Hancock explained that the piriformis is one of the muscles about the hip, and

sometimes the sciatic nerve goes under the piriformis, or over it, or sometimes through

it, but when it goes under, in certain positions, pressure is placed on the sciatic nerve,

causing discrete, "very focal" pain "when you press on it." R. 34. He said that "they

didn't report any of the testing that you would do to see if it was piriformis tightness or

syndrome, and we have no way of determining the nerve, whether it passes over,

under, or through, without an MRI or actually opening the joint and looking at it." Id. He

did not think that there were enough symptoms to warrant doing that. R. 35. He also

did not agree with calling her pain sciatica, which radiates down the sciatic nerve, since

she had pain localized in her buttock. R. 38.

In summary, the reasons given by the ALJ to discount the opinion of the treating

physician, Dr. Vigo, are sufficient. There was no definitive diagnosis of fibromyalgia. 

"Fibromyalgia is a rheumatic disease and the relevant specialist is a rheumatologist." 

Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996). The signs of fibromyalgia,

according to American College of Rheumatology guidelines, are primarily tender points

on the body. Green-Younger v. Barnhart, 335 F.3d 99, 107 (2nd Cir. 2003)

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("Green-Younger exhibited the clinical signs and symptoms to support a fibromyalgia

diagnosis under the American College of Rheumatology (ACR) guidelines, including

primarily widespread pain in all four quadrants of the body and at least 11 of the 18

specified tender points on the body."). Further, by late 2008, it was reported that

Plaintiff's symptoms, however named, were under control. Her pain medications were

working. If she had fibromyalgia, it was stable. Most of the objective testing for

neurological impairment (muscle wasting, strength, straight leg raising) had negative

results. These are sufficient reasons, supported by substantial evidence in the record,

to discount Dr. Vigo's opinion that Plaintiff is totally disabled.

Whether the ALJ erred in finding that Plaintiff had the ability to work

more than six hours a day

The Administrative Law Judge determined that Plaintiff had the ability to "sit,

stand or walk for at least six hours of an eight hour workday." R. 17. This determination

is supported by the testimony of Dr. Hancock, discussed above, and Clarence Louis,

M.D., the state agency physician's determination of residual functional capacity based

upon review of the medical records. R. 350, 356.

Plaintiff argues that this means that Plaintiff can sit, stand, or walk in combination

only six hours a day. That is unpersuasive. It is uniformly understood that these

findings are additive, that a person who can sit, stand, and walk for six hours a day can

do all of these activities during an eight hour day so long as each one does not exceed

six hours. E.g., Macia v. Bowen, 829 F.2d 1009, 1011 (11th Cir. 1987) (ability to sit or

stand and walk about six hours a day is an ability to do sedentary work). 

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Conclusion

Considering the record as a whole, the findings of the Administrative Law Judge

were based upon substantial evidence in the record and correctly followed the law.

Accordingly, the decision of the Commissioner to deny Plaintiff's application for

Social Security benefits is AFFIRMED, and the Clerk is DIRECTED to enter judgment in

favor of Defendant.

IN CHAMBERS at Tallahassee, Florida, on February 2, 2011.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

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