IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

FRANCES A. CHESTANG, : 

: 

Plaintiff, : 

: 

v. : CIVIL ACTION 05-0681-M 

: 

JO ANNE B. BARNHART, : 

Commissioner of : 

Social Security, : 

: 

Defendant. : 

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),

Plaintiff seeks judicial review of an adverse social security

ruling which denied claims for disability insurance benefits and

Supplemental Security Income (hereinafter SSI). The parties

filed written consent and this action has been referred to the

undersigned Magistrate Judge to conduct all proceedings and order

the entry of judgment in accordance with 28 U.S.C. § 636(c) and

Fed.R.Civ.P. 73 (see Doc. 16). Oral argument was heard on June

19, 2006. Upon consideration of the administrative record, the

memoranda of the parties, and oral argument, it is ORDERED that

the decision of the Commissioner be AFFIRMED and that this action

be DISMISSED.

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983), which must be supported by substantial evidence. RichardCase 1:05-cv-00681-M Document 17 Filed 06/20/06 Page 1 of 11
2

son v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

it; it is more than a scintilla, but less than a preponderance." 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

Plaintiff was born November 15, 1955. At the time of the

administrative hearing, Chestang was forty-eight years old, had

completed a high school education (Tr. 266), and had previous

work experience as an environmental service worker (Tr. 267,

281). In claiming benefits, Plaintiff alleges disability due to

fibromyalgia, depression, mitral valve prolapse, vertigo, and

rheumatic pain syndrome (Doc. 10).

The Plaintiff protectively filed applications for disability

benefits and SSI on December 4, 2002 (Tr. 55-58; see Tr. 19). 

Benefits were denied following a hearing by an Administrative Law

Judge (ALJ) who determined that Chestang could perform her

previous relevant work as an environmental services assistant

(Tr. 16-31). Plaintiff requested review of the hearing decision

(Tr. 14-15) by the Appeals Council, but it was denied (Tr. 4-6).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Chestang

alleges that: (1) The ALJ did not properly consider the opinions

and diagnoses of her treating physician; (2) the ALJ incorrectly

determined that there was no definitive diagnosis of

fibromyalgia; (3) the ALJ improperly discounted her testimony of

Case 1:05-cv-00681-M Document 17 Filed 06/20/06 Page 2 of 11
 1The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

3

pain; (4) the ALJ gave an improper hypothetical to the vocational

expert; and (5) the ALJ improperly determined that she could

perform her past relevant work (Doc. 10). Defendant has

responded to—and denies—these claims (Doc. 12).

Plaintiff's first claim is that the ALJ did not accord

proper legal weight to the opinions, diagnoses and medical

evidence of Plaintiff's treating physician. Chestang

specifically references Dr. Mark A. McDaniel (Tr. 10, pp. 8-9). 

It should be noted that "although the opinion of an examining

physician is generally entitled to more weight than the opinion

of a non-examining physician, the ALJ is free to reject the

opinion of any physician when the evidence supports a contrary

conclusion." Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir.

1981);1 see also 20 C.F.R. § 404.1527 (2005).

The evidence demonstrates that Dr. McDaniel first examined

Chestang on February 10, 1997 and continued treating her through

June 15, 2001 at which time Plaintiff lost her insurance and was

no longer able to avail herself of the doctor’s services (Tr.

144-74; see also Tr. 274-81). The evidence demonstrates that

McDaniel initially diagnosed Chestang to have arthralgias and

myalgias following the patient’s assertion of pain and that she

had suffered a bout of rheumatoid four-to-five months earlier

(Tr. 166). Chestang saw the doctor approximately once a month

Case 1:05-cv-00681-M Document 17 Filed 06/20/06 Page 3 of 11
 2The Court notes that Plaintiff asserted an onset disability date

of December 10, 1999 (Tr. 56; Doc. 10 Fact Sheet). As such, the Court

will not herein summarize all of the records from the period of time

leading up to that date, though they have been reviewed and

considered.

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over the following period of nearly three years and was treated

for various complaints of pain, somnolence, a chest cold, rash,

sore throat, sinus congestion/infection, depression, and

insomnia; she was also continually monitored for a pre-existing

problem with mitral valve prolapse (Tr. 152-66).2 On December 9,

1999, McDaniel treated Plaintiff for a suspected hematoma on her

right lateral thigh (Tr. 152); on December 28, Chestang was

experiencing unexpected menses and had had palpitations over the

previous two days (Tr. 151). Two weeks later, Plaintiff had

nausea and was feeling lethargic (Tr. 151). On February 9, 2000,

Chestang complained of back stiffness because of a strong

physical therapy session (Tr. 150). Five weeks later, Plaintiff

complained of stitches in her neck with spasms in her right

shoulder though there were no problems with her other joints;

McDaniel prescribed pain medication (Tr. 150). 

On April 6, 2000, Dr. McDaniel completed a form on which he

indicated that Plaintiff was continuously able to engage in fine

manipulation of the left hand but only frequently with the right;

furthermore, she could frequently reach and engage in simple or

firm grasping (Tr. 127-28). The doctor further indicated that

Chestang could sit four-to-six hours, stand two-to-four hours,

and walk two-to-three hours during an eight-hour day (Tr. 129). 

McDaniel also found Plaintiff able to continuously lift up to ten

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pounds and occasionally up to twenty pounds, but never more than

that; she could also carry ten pounds frequently and twenty

pounds occasionally (Tr. 129). The doctor thought that Chestang

could climb, balance, stoop, crouch, kneel, and push and pull on

an occasional basis but could never crawl (Tr. 129). 

On April 27, 2000, Chestang complained of burning chest pain

which the doctor suggested was likely to be GERD; McDaniels also

noted depression (Tr. 149). On May 23, the doctor noted

Plaintiff’s complaints of spasms all over, GERD, and nausea (Tr.

149). The next examination was three months later when Chestang

presented with complaints of chest pain on respiration and

exertional dyspnea for two days; the doctor diagnosed pleurisy

and vertigo and noted weight loss (Tr. 148). The next

examination was on January 26, 2001 at which time Plaintiff was

complaining of a body itch (Tr. 148). On March 13, Chestang had

nausea and multiple complaints of pain; Dr. McDaniel noted that

her right calf was swollen, tender to light palpation, and

causing pain (Tr. 147). 

On March 15, 2001, Dr. McDaniel completed a pain assessment

form on which he indicated that Plaintiff’s pain would distract

her from adequately performing daily activities or work; he

further noted that physical activity would greatly increase her

pain which would either distract her or cause her to abandon work

tasks or daily activities (Tr. 142). Pain medication would

severely limit her work effectiveness (Tr. 142). The doctor also

completed a physical capacities evaluation form in which he

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indicated that Chestang could sit for two hours at a time and

could stand and/or walk for less than two hours at a time; during

an eight-hour day, Plaintiff could sit a total of four hours and

stand and/or walk for less than two hours (Tr. 143). McDaniel

found her able to lift five pounds frequently, and twenty pounds

occasionally; she could carry ten pounds occasionally, but never

more than that (Tr. 143). The doctor indicated that Plaintiff

could never use arm controls on the right and could, only on

occasion, bend, squat, reach and reach overhead; climbing and

crawling were considered to be activities which she could engage

in on a negligible basis (Tr. 143). 

Plaintiff’s leg was still bothering her on the next visit to

the doctor on March 22 (Tr. 146). McDaniel noted neck pain on

May 18; on the last reported visit of June 15, 2001, Chestang was

experiencing dizziness and nausea (Tr. 146). 

The ALJ summarized the physical capacity forms and pain form

completed by McDaniel (Tr. 22-23), but did not give them

controlling weight because the conclusions conflicted with his

own medical notes and the other evidence of record (Tr. 26). 

Without summarizing all of the other medical evidence, the Court

finds that there is substantial support for the ALJ’s

conclusions. Specifically, the reports of Dr. Joe Hardin (Tr.

140-41) and Dr. Thomasina Sharpe (Tr. 238-45) provide medical

examination notes that fail to support the disability diagnosis

that Dr. McDaniel asserts; though they represent only a single

examination day each, their conclusions are vastly different from

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those of McDaniel. In addition, the Court notes that the Mobile

County Health Department provided records spanning October 1,

2001 through December 17, 2003; those records also fail to

support the severe limitations found by Dr. McDaniel (Tr. 175-

209, 230-37, 246-62). Even the records of Dr. Gino DiVittorio,

which only post-date Chestang’s onset date of December 10, 1999

by five months, fail to support such extreme limitation. 

Plaintiff’s claim otherwise is without merit.

Plaintiff next claims that the ALJ incorrectly determined

that there was no definitive diagnosis of fibromyalgia (Doc. 10,

pp. 2-9). The ALJ, in clear terms, states this conclusion (Tr.

27).

In addressing this claim, the Court will quote a seventh

circuit case cited by Plaintiff (Doc. 10, p. 8) which discusses

fibromyalgia and makes the following observations: 

Its cause or causes are unknown, there is no

cure, and, of greatest importance to

disability law, its symptoms are entirely

subjective. There are no laboratory tests

for the presence or severity of fibromyalgia. 

The principal symptoms are “pain all over,”

fatigue, disturbed sleep, stiffness, and--the

only symptom that discriminates between it

and other diseases of a rheumatic character--

multiple tender spots, more precisely 18

fixed locations on the body (and the rule of

thumb is that the patient must have at least

11 of them to be diagnosed as having

fibromyalgia) that when pressed firmly cause

the patient to flinch.

Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). In this

action, there is no indication that any physician has conducted

Case 1:05-cv-00681-M Document 17 Filed 06/20/06 Page 7 of 11
 3Plaintiff’s attorney, at oral argument, asserted that Dr.

McDaniel could not have diagnosed Chestang to have fibromyalgia

without having performed the trigger point analysis. While that may

be true, the doctor’s analysis does not appear in print and,

therefore, does not provide the objective medical evidence necessary

for the conclusion Chestang seeks.

8

an eighteen-point check. Doctor notes indicate complaints of

pain, but do not indicate that the pain is severe; medical

prescriptions for pain medications were to be taken on only an as

needed basis. Furthermore, the doctor’s notes place no

limitations on Plaintiff’s activities. The Court finds that the

ALJ correctly found that there was no definitive diagnosis of

fibromyalgia as no eighteen-point check has been conducted and

placed in the record.3

Chestang next claims that the ALJ improperly discounted her

testimony of pain. The standard by which the Plaintiff's

complaints of pain are to be evaluated requires "(1) evidence of

an underlying medical condition and either (2) objective medical

evidence that confirms the severity of the alleged pain arising

from that condition or (3) that the objectively determined

medical condition is of such a severity that it can be reasonably

expected to give rise to the alleged pain." Holt v. Sullivan,

921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler,

782 F.2d 1551, 1553 (11th Cir. 1986)). The Eleventh Circuit

Court of Appeals has also held that the determination of whether

objective medical impairments could reasonably be expected to

produce the pain was a factual question to be made by the

Secretary and, therefore, "subject only to limited review in the

Case 1:05-cv-00681-M Document 17 Filed 06/20/06 Page 8 of 11
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courts to ensure that the finding is supported by substantial

evidence." Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.),

vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated

sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986).

The ALJ faithfully reported Plaintiff’s testimony of pain

and limitation at the evidentiary hearing (Tr. 266-81; cf. Tr.

21-22). The ALJ found that Chestang’s testimony was not credible

(Tr. 30, ¶ 5). The Court finds substantial support for that

conclusion, noting that the medical evidence does not support her

statements of pain and limitation. Acknowledging, as did the

Sarchet Court, that fibromyalgia’s symptoms are entirely

subjective, the medical notes do not reflect the extreme

limitation asserted by Plaintiff. This claim is of no merit.

Chestang’s next claim is that the ALJ gave an improper

hypothetical to the vocational expert (hereinafter VE). 

Plaintiff’s argument focuses on the ALJ’s failure to accept the

conclusions reached by the VE in the hypotheticals which included

the opinions of Dr. McDaniel as presented in the physical

capacity forms and the pain questionnaire (Doc. 10, p. 11). The

Eleventh Circuit Court of Appeals has held that an ALJ's failure

to include severe impairments suffered by a claimant in a

hypothetical question to a VE to be reversible error where the

ALJ relied on that expert's testimony in reaching a disability

decision. Pendley v. Heckler, 767 F.2d 1561 (11th Cir. 1985). 

The Court notes that the ALJ asked the VE a hypothetical

question in which the VE found that the person could perform the

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work formerly performed by Chestang (Tr. 281-282). Plaintiff’s

attorney then asked, on cross-examination, three hypothetical

questions, two of which included the opinions expressed in the

above-mentioned forms completed by Dr. McDaniel; in response to

those questions, the VE stated that the person would not be able

to work (Tr. 283-85). The ALJ acknowledged the hypothetical

questions posed by Plaintiff’s attorney and the VE’s responses,

but rejected them as unsupported by the medical evidence of

record (Tr. 29-30). Relying on the VE’s testimony, the ALJ found

that Plaintiff could return to her past relevant work. 

As found earlier in this Opinion while discussing another

claim, the Court finds substantial support for the ALJ’s

determination that Dr. McDaniel’s conclusions of disability are

not supported by the medical evidence. Raising the claim again

here, albeit in a new and different form, give it no new life.

Chestang’s final claim is that the ALJ improperly determined

that she could perform her past relevant work. The Court notes

that Plaintiff has the burden of proving that she cannot perform

her past relevant work. Macia v. Bowen, 829 F.2d 1009, 1012

(11th Cir. 1987) (citing Sryock v. Heckler, 764 F.2d 834, 835

(11th Cir. 1985)). With regard to a claimant's past work, the

Eleventh Circuit Court of Appeals has held that

[a]lthough a claimant bears the burden

of demonstrating an inability to return to

his past relevant work, the Secretary has an

obligation to develop a full and fair record. 

Nelms v. Bowen, 803 F.2d 1164, 1165 (11th

Cir. 1986); Cowart v. Schweiker, 662 F.2d

731, 735 (11th Cir. 1981). Where there is no

Case 1:05-cv-00681-M Document 17 Filed 06/20/06 Page 10 of 11
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evidence of the physical requirements and

demands of the claimant's past work and no

detailed description of the required duties

was solicited or proffered, the Secretary

cannot properly determine whether the

claimant has the residual functional capacity

to perform his past relevant work. Nelms,

803 F.2d at 1164. 

Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). 

Plaintiff completed a Social Security form which set out the

physical requirements and duties of her various jobs (Tr. 88-94). 

The Court notes that Chestang gave a full, detailed summary of

those five jobs, all of which included housekeeping services. 

The VE also testified to the physical requirements required for

that job as it is normally performed (Tr. 281). After

considering this evidence, the ALJ found that Plaintiff could

return to her past relevant work (Tr. 30, ¶ 11). The Court finds

substantial support for that conclusion. 

Upon consideration of the entire record, the Court finds

"such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Perales, 402 U.S. at 401. 

Therefore, it is ORDERED that the Secretary's decision be

AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir.

1980), and that this action be DISMISSED. Judgement will be

entered by separate order.

DONE this 20th day of June, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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