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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROCHELLE C. RIVIERE, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 14-0401-M

CAROLYN W. COLVIN, :

Social Security Commissioner, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 405((g), Plaintiff seeks 

judicial review of an adverse social security ruling denying a 

claim for disability insurance benefits (Docs. 1, 10). The 

parties filed written consent and this action has been referred 

to the undersigned Magistrate Judge to conduct all proceedings 

and order judgment in accordance with 28 U.S.C. § 636(c) and 

Fed.R.Civ.P. 73 (see Doc. 16). Oral argument was waived in this 

action (Doc. 15). After considering the administrative record 

and the memoranda of the parties, 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

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Cir. 1983), which must be supported by substantial evidence. 

Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial 

evidence 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).

At the time of the administrative hearing, Plaintiff was 

forty-four years old, had completed a tenth-grade education (Tr. 

29), and had previous work experience as a school crossing guard 

and shoe store manager (Tr. 29-30, 42). Riviere alleges 

disability due to fibromyalgia, bursitis, and migraines (Doc. 10 

Fact Sheet).

The Plaintiff applied for disability benefits on September 

7, 2011, alleging an onset date of August 26, 2011 (Tr. 98-101; 

see also Tr. 14). An Administrative Law Judge (ALJ) denied 

benefits, determining that Riviere was capable of performing her 

past relevant work as a school crossing guard (Tr. 13-21). 

Plaintiff requested review of the hearing decision (Tr. 7), but 

the Appeals Council denied it (Tr. 1-5).

Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, Riviere

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

opinions of her treating physicians; (2) the ALJ’s residual 

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functional capacity (hereinafter RFC) is not supported by the 

evidence; and (3) the ALJ improperly found that her testimony of 

pain and limitation was not credible (Doc. 10). Defendant has 

responded to—and denies—these claims (Doc. 11). The Court will 

summarize the relevant evidence of record.1

On January 10, 2011, Dr. Timothy Peter Ahmadi examined 

Riviere for moderate to severe back pain, radiating into the 

left leg; he further noted cervical spine pain, surmising that 

“most likely she had lumbar disc disease with nerve root 

compression” (Tr. 175; see generally Tr. 165-84). X-rays of the 

lumbar spine were normal, providing no evidence of spondylolysis 

or spondylolisthesis (Tr. 184). On January 27, Plaintiff had 

low grade lumbar back pain for which she was given a Decadron 

injection2 (Tr. 172). On February 7, an MRI of the lumbar spine 

was performed that was normal except for some nonspecific mass 

at L2, suspected to be a hemangioma of clinical insignificance 

(Tr. 176-78). A week later, Dr. Ahmadi diagnosed acute 

sinusitis but prescribed an antibiotic for back pain (Tr. 171). 

On April 19, 2011, Riviere had multiple complaints of pain all

over along with intermittent diarrhea and vomiting; the Doctor 

																																																							 1As Plaintiff alleges a disability onset date of August 26, 2011 

(Tr. 100), the Court will not report the medical history that predates 2011.

2Error!	Main	Document	Only.Decadron is a corticosteroid used for, 

among other things, the treatment of rheumatic disorders. Physician's 

Desk Reference 1635-38 (52nd ed. 1998). 

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concluded she had irritable bowel syndrome and, possibly,

fibromyalgia for which he prescribed Elavil3 and something for 

her stomach (Tr. 170). On June 14, Ahmadi noted no pain 

complaints, but diagnosed acute rhinitis and sinusitis, 

prescribing Tramadol4 (Tr. 169); four days later, Darvocet5 was 

prescribed for moderate to severe cervical spine pain (Tr. 167). 

On June 30, the Doctor noted muscle tenderness, diagnosed 

possible fibromyalgia, and gave her some Cymbalta6 samples (Tr. 

165). On July 18, Riviere complained of pain in the back, lower 

leg, and upper extremity, though there was no gross abnormality 

in any joint; Ultram7 was prescribed (Tr. 166).

On August 18, 2011, Rheumatologist Gino DiVittorio examined 

Plaintiff, noting complaints of pain all over, but mainly in the 

neck, shoulders, and mid- and lower back; he noted fifteen wide 

spread tender points, with a symptoms score of eight, though all 

																																																							 3Error!	Main	Document	Only.Amitriptyline, marketed as Elavil, is 

used to treat the symptoms of depression. Physician's Desk Reference

3163 (52nd ed. 1998). 

4Tramadol “is indicated for the management of moderate to 

moderately severe chronic pain in adults who require around-the-clock 

treatment of their pain for an extended period of time.” Error! Main 

Document Only.Physician's Desk Reference 2520 (66th ed. 2012).

5Error!	Main	Document	Only.Propoxyphene napsylate, more commonly 

known as Darvocet, is a class four narcotic used “for the relief of 

mild to moderate pain” and commonly causes dizziness and sedation. 

Physician's Desk Reference 1443-44 (52nd ed. 1998). 

6Cymbalta is used in the treatment of major depressive disorder. 

Error! Main Document Only.Physician's Desk Reference 1791-93 (62nd ed. 

2008).

7Error! Main Document Only.Ultram is an analgesic “indicated for 

the management of moderate to moderately severe pain.” Physician's 

Desk Reference 2218 (54th ed. 2000). 

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joints were normal (Tr. 188-89, 215). The Doctor noted that 

this met the diagnostic criteria for fibromyalgia; Riviere was 

encouraged to exercise regularly, avoid caffeine and alcohol, 

and take Lyrica.8 On September 15, 2011, Plaintiff complained of 

hurting all over and admitted that she had not been exercising; 

DiVittorio noted mild widespread tender points, pain at 

palpation in the ischial bursas, but no leg edema and 

substituted Ultracet9 for Ultram (Tr. 186). On October 13, Dr. 

DiVittorio noted tender points in Plaintiff’s upper and lower 

back, causing pain; her morning Lyrica made her sleepy though 

she slept poorly (Tr. 205). Riviere admitted she was not 

exercising. On November 10, Plaintiff reported that she was 

exercising, hurting very little, but her sleeping was only fair; 

the Rheumatologist noted minimal tender points, no leg edema, 

and recommended exercise (Tr. 204). On February 10, 2012, 

Plaintiff reported hurting “some” all over and not sleeping 

well; she was not exercising (Tr. 213). DiVittorio recommended 

exercise and prescribed Savella.10 

On February 23, Doctor Ahmadi reported Plaintiff’s claim of 

																																																							 8Lyrica manages neuropathic pain. Error!	Main	Document	

Only.Physician's Desk Reference 2517 (62nd ed. 2008).

9Error!	Main	Document	Only.Ultracet is made up of acetaminophen and 

tramadol and is used for the short-term (5 days or less) management of 

pain. See http://health.yahoo.com/drug/d04766A1#d04766a1-whatis

10Savella is a drug enhancing transmission in neurotransmitters to 

ease pain, reduce fatigue, and help memory. http://www.webmd.com/

fibromyalgia/guide/savella-for-fibromyalgia-treatment

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inability to “do constant or persistent work because of [her] 

pain,” though noting no cardiopulmonary symptoms, shortness of 

breath, tenderness, or edema (Tr. 206). On March 27, 2012, 

Ahmadi completed a physical capacities evaluation (hereinafter 

PCE), indicating that Riviere could sit for an hour at a time, 

but a total of less than an hour during an eight-hour day; she 

could stand/walk for an hour at a time and total a day (Tr. 

208). She could lift only up to ten pounds occasionally and 

carry five pounds frequently; capable of simple grasping and arm 

controls, Riviere had no fine manipulation and could not use leg 

controls. Plaintiff could never bend, squat, crawl, climb, or 

reach and was totally prohibited from activities involving 

unprotected heights, moving machinery, exposure to dust, fumes, 

and gases or marked changes in temperature and humidity; she 

could not drive. Also on March 27, Ahmadi found Plaintiff’s 

pain so frequent as to be intractable and virtually 

incapacitating; because of her medications, she was unable to 

function productively at work (Tr. 209). On April 27, Riviere 

reported doing reasonably well “except for pain in several areas 

due to fibromyalgia;” he noted no abnormalities and prescribed 

Xanax11 (Tr. 207). 

A month earlier, on March 22, 2012, Dr. DiVittorio reported 

																																																							 11Error!	Main	Document	Only.Xanax is a class four narcotic used for 

the management of anxiety disorders. Physician's Desk Reference 2294 

(52nd ed. 1998).

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that Plaintiff hurt “some” but, overall, felt better with 

exercise and sleep; she had mild tender points in her back (Tr. 

212). The Doctor recommended that Riviere “do more exercises” 

(Tr. 212). On May 3, 2012, Plaintiff said she had quit taking 

Savella because it disturbed her sleep; she hurt some, with no 

edema (Tr. 210). She had mild, widespread tender points; Ultram 

and exercise were prescribed. On August 10, following an 

otherwise normal exam, Dr. Vittorio ordered an anesthetic 

injection in the left hip for bursitis; he recommended exercise 

and added Cymbalta (Tr. 219-20, 223-24). Two weeks later, the 

Rheumatologist reported that he had told Riviere that she needed 

to exercise regularly and avoid alcohol and caffeine; he 

prescribed Lyrica (Tr. 225). On September 7, Dr. DiVittorio 

stated there were “no more options. She can not afford or 

tolerate medications. She is not exercising. Injections don’t 

help. There is no [sic] much else I can offer” (Tr. 222). 

Though she had “widespread tender points,” Plaintiff was “not 

adherent to her medication regimen and [] denied medication side 

effects” (Tr. 217). 

On November 8, 2012, Riviere told Dr. Ahmadi that she had 

some pain but it was better; the exam was normal (Tr. 233; see 

generally Tr. 223-33). On December 17, she was treated for a 

cold and sinusitis; he reported no edema or calf tenderness (Tr. 

232). A month later, the exam was normal but for sinus problems 

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(Tr. 231). On February 2, 2013, Dr. Ahmadi noted her diagnosis 

and medications, and stated that except for congestion she was 

medically stable (Tr. 230). On March 27, 2013, he noted that 

other than her diagnoses and medications, she was doing well. 

On April 8, Ahmadi noted lower back and leg pain, but she was 

otherwise “medically stable;” he prescribed Neurontin12 (Tr. 

227). In a note the next day, the Doctor noted that Riviere had 

returned the next day because her medications had not worked; 

“[s]he had pain all over and was under care of a rheumatologist 

and did not do any good” (Tr. 226). 

This concludes the Court’s summary of the evidence. 

Plaintiff first claims that the ALJ did not properly 

consider the opinions of her treating physicians. Specifically, 

Riviere asserts that the reports of Drs. Ahmadi and DiVittorio 

were not properly considered (Doc. 10, pp. 10-16). It should be 

noted that "although the opinion of an examining physician is 

generally entitled to more weight than the opinion of a nonexamining 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);13 see 

also 20 C.F.R. § 404.1527 (2014).

																																																							 12Error!	Main	Document	Only.Neurontin is used to help with seizures. 

Physician's Desk Reference 2110-13 (52nd ed. 1998). 

					 13The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions 

of the former Fifth Circuit rendered prior to October 1, 1981.

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Riviere claims that the ALJ failed “to state what weight, 

if any, was afforded to the opinions of Dr. DiVittorio” (Doc. 

10, p. 14) while the Government argues that the ALJ specifically 

discounted them (Doc. 11, p. 6). The Court finds that Plaintiff 

is more correct in her argument, but it is of no moment.

The Court can re-summarize the records quickly. On August 

18, 2011, DiVittorio found that Riviere had fifteen widespread 

tender points, mainly in the neck, shoulders, and mid- and lower 

back, that met the criteria for a diagnosis of fibromyalgia (Tr. 

188-89); this was eight days before Plaintiff’s asserted onset 

date. On November 10, Plaintiff reported to Dr. DiVittorio that 

she was exercising, hurting very little, but her sleeping was 

only fair; the Rheumatologist noted minimal tender points, no 

leg edema, and recommended exercise (Tr. 204). In a March 22, 

2012 note, the Rheumatologist reported that Plaintiff hurt 

“some” but, overall, felt better with exercise and sleep; she 

had mild tender points in her back (Tr. 212). The August 10 

exam was normal except for left hip bursitis (Tr. 219-20, 223-

24). On September 7, Dr. DiVittorio’s records indicate that he 

was releasing her from his care because she did not exercise or 

take her medications as ordered (Tr. 217, 222). The Court 

emphasizes that the Doctor released Riviere because she did not 

follow prescribed treatment, so there was nothing he could do 

for her. Though the ALJ has not clearly defined the weight

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given Dr. Vittorio’s opinions, the Court finds that they do not 

support a finding of disability.

The ALJ clearly defined his views on Dr. Ahmadi’s 

conclusions, giving little weight to the PCE and pain forms he 

completed “because the documents contain insufficient rationale 

with no citation to medical evidence that would reasonably 

support the opinions” (Tr. 18). The ALJ went on to note that 

the opinions in those forms were inconsistent with treatment 

records and his physical exams (Tr. 18). 

The Court finds substantial support for this conclusion. 

Nowhere in Dr. Ahmadi’s treatment notes is there any objective 

indication of limitation. While the Doctor repeated Riviere’s 

claims of pain in his treatment notes, he never limits her in 

any way; most of his exams made after he completed the PCE and 

pain forms were essentially normal.

The Court finds substantial support for the ALJ’s 

conclusion that Dr. Ahmadi’s opinions were to be given little 

weight. While the ALJ did not state what weight he gave Dr. 

DiVittorio’s opinion, it was, at most, harmless error,14 as the 

Doctor’s treatment notes do not counsel a finding of disability.

Riviere next claims that the ALJ’s RFC is not supported by

the evidence (Doc. 10, pp. 16-19). The Court notes that the ALJ 

																																																							 14Error! Main Document Only.As such, remand of this action would 

be inappropriate. See Reeves v. Heckler, 734 F.2d 519, 526 n.3 (11th

Cir. 1984). 

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is responsible for determining a claimant’s RFC. 20 C.F.R. § 

404.1546 (2013). That decision can not be based on “sit and 

squirm” jurisprudence. Wilson v. Heckler, 734 F.2d 513, 518 

(11th Cir. 1984).

In his determination, the ALJ found that Plaintiff had the 

RFC “to perform light work as defined in 20 C.F.R. 404.1567(b)15

except [that] she is unable to climb ladders, ropes, or 

scaffolds. She can occasionally crouch” (Tr. 16). As noted 

previously, the ALJ discounted Dr. Ahmadi’s opinions in reaching 

this decision; the Court found substantial support for that 

decision. The ALJ also discounted Riviere’s own statements of 

pain and limitation (Tr. 18, 19-20); the Court will soon address 

Plaintiff’s claim that this decision was improper.

The Court finds substantial support for the ALJ’s 

determination of Plaintiff’s RFC. The medical evidence in this 

action is scant. Although Dr. DiVittorio provided the best 

medical evidence of disability—and that fell short of proof—he 

quit treating Plaintiff because she failed to comply with his 

																																																							 15“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. To be considered capable of performing a full or 

wide range of light work, you must have the ability to do 

substantially all of these activities. If someone can do light work, 

we determine that he or she can also do sedentary work, unless there 

are additional limiting factors such as loss of fine dexterity or 

inability to sit for long periods of time.”

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treatment regimen. Dr. Ahmadi’s treatment notes failed to show 

any limitations as they rely on Plaintiff’s subjective 

complaints of pain; his notes regularly indicate a normal exam 

except for Riviere’s assertions. Plaintiff is reminded that the 

social security regulations state that Plaintiff is responsible 

for providing evidence from which the ALJ can make an RFC 

determination. 20 C.F.R. § 404.1545(a)(3). 

Plaintiff’s final claim is that the ALJ improperly found 

that her testimony of pain and limitation was not credible (Doc. 

10, pp. 18, 19-20). The standard by which the Riviere'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 courts to ensure that the finding is supported by 

substantial evidence." Hand v. Heckler, 761 F.2d 1545, 1549 

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(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). Furthermore, the Social Security regulations 

specifically state the following:

statements about your pain or other symptoms 

will not alone establish that you are 

disabled; there must be medical signs and 

laboratory findings which show that you have 

a medical impairment(s) which could 

reasonably be expected to produce the pain 

or other symptoms alleged and which, when 

considered with all of the other evidence 

(including statements about the intensity 

and persistence of your pain or other 

symptoms which may reasonably be accepted as 

consistent with the medical signs and 

laboratory findings), would lead to a 

conclusion that you are disabled.

20 C.F.R. 404.1529(a) (2014).

The ALJ found that Riviere’s pain and limitation were not 

as severe as alleged (Tr. 18). He based this conclusion on her 

limited use of pain medications and her failure to follow a 

prescribed medical regimen (Tr. 20). The ALJ further noted 

Plaintiff’s daily activities (Tr. 19).

The Court finds substantial support for the ALJ’s 

conclusion. First, the medical evidence does not support 

Riviere’s claims of debilitating pain and limitation; the only 

evidence that would support those claims were the PCE and pain 

forms completed by Dr. Ahmadi, but those forms were correctly 

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accorded little weight. Dr. DiVittorio’s records, however, 

reveal both that Plaintiff was not suffering as much as she 

claimed and that she was not even doing the things she could to 

improve her situation. Plaintiff is reminded that the Social 

Security regulations state that “[i]n order to get benefits, you 

must follow treatment prescribed by your physician if this 

treatment can restore your ability to work.” 20 C.F.R. 1530(a) 

(2014). The regulation goes on to state that “[i]f you do not 

follow the prescribed treatment without a good reason, we will 

not find you disabled or, if you are already receiving benefits, 

we will stop paying you benefits.” 20 C.F.R. § 404.1530(b); see 

also Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988). 

Plaintiff has raised three different claims in bringing 

this action. All are without merit. 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. Judgment will be entered by 

separate Order.

DONE this 17th day of March, 2015.

s/BERT W. MILLING, JR. 

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UNITED STATES MAGISTRATE JUDGE

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