IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ANNETTE GIBBS, *

*

 Plaintiff, * CIVIL ACTION NO. 15-00041-B

 *

vs. *

*

CAROLYN W. COLVIN, *

Commissioner of Social *

Security, *

 *

Defendant. *

ORDER

Plaintiff Annette Gibbs (hereinafter “Plaintiff”) seeks 

judicial review of a final decision of the Commissioner of 

Social Security denying her claim for a period of disability and 

disability insurance benefits under Title II of the Social 

Security Act, 42 U.S.C. §§ 401, et seq. On October 12, 2015, 

the parties consented to have the undersigned conduct any and 

all proceedings in this case. (Doc. 19). Thus, the action was 

referred to the undersigned to conduct all proceedings and order 

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

Federal Rule of Civil Procedure 73. Upon careful consideration 

of the administrative record and the memoranda of the parties, 

it is hereby ORDERED that the decision of the Commissioner be 

AFFIRMED.

I. Procedural History

Plaintiff filed her application for benefits on July 19, 

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2011. (Tr. 143). Plaintiff alleged that she has been disabled 

since November 10, 2010, due to right knee pain/surgery, left 

knee pain and arthritis, left ankle arthritis, bone spurs at 

left heel, acid reflux, swelling in both knees and left ankle, 

too much pressure on left leg, memory problems, learning 

disability, and poor concentration. (Id. at 178, 182).

Plaintiff’s applications were denied and upon timely 

request, she was granted an administrative hearing before 

Administrative Law Judge Ricky V. South (hereinafter “ALJ”) on 

March 25, 2013. (Id. at 31). Plaintiff attended the hearing 

with her counsel and provided testimony related to her claims. 

(Id. at 36). A vocational expert (“VE”) also appeared at the 

hearing and provided testimony. (Id. at 59). On May 23, 2013, 

the ALJ issued an unfavorable decision finding that Plaintiff is 

not disabled. (Id. at 26). The Appeals Council denied 

Plaintiff’s request for review on December 9, 2014. (Id. at 1-

2). Therefore, the ALJ’s decision dated May 23, 2013, became 

the final decision of the Commissioner. 

Having exhausted her administrative remedies, Plaintiff 

timely filed the present civil action. (Doc. 1). The parties 

waived oral argument on October 12, 2015 (Doc. 18), and agree 

that this case is now ripe for judicial review and is properly 

before this Court pursuant to 42 U.S.C. §§ 405(g) and 

1383(c)(3).

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II. Issues on Appeal

1. Whether the ALJ erred in failing to 

consider the opinions of treating 

physician, Dr. Judy C. Travis, M.D., 

dated May 14, 2013?

2. Whether the Appeals Council erred in 

failing to consider medical records 

submitted by Plaintiff based on the dates 

of the treatment?

III. Factual Background

Plaintiff was born on May 2, 1964, and was forty-eight

years of age at the time of her administrative hearing on March 

25, 2013. (Tr. 31, 36). Plaintiff graduated from high school

in 1982 and last worked from February 2010 to November 2010 as a 

sales clerk at a clothing store. (Id. at 49-50, 184, 224).

Plaintiff also worked as a cook in a school cafeteria and as a 

fast food worker in various restaurants from 2002 to May 2010.1

(Id. at 184, 214).

At her hearing, Plaintiff testified that her biggest 

problem is pain in her right knee, which she described as a 

seven on a ten-point pain scale, after medication. (Id. at 38, 

44). Plaintiff stated that she stopped working on November 10, 

2010, because she “wasn’t able to climb up steps or stand up 

long or get on [her] knees or squat down.” (Id. at 50). 

Plaintiff testified that she cannot work now because she cannot 

 1 The exact dates of Plaintiff’s employment as a cook/kitchen 

worker are unclear from the record. (Tr. 214).

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stand or walk for long periods of time and cannot climb or get 

down on the floor. (Id. at 50-51). Plaintiff testified that 

she has had two surgeries on her right knee (the second one 

being only four months before her hearing), but that the

surgeries did not help the pain. (Id. at 38, 42). She has 

trouble going up and down steps and has fallen once. (Id. at 

39). According to Plaintiff, she has severe degenerative 

arthritis in her right knee and degenerative arthritis in her 

left knee. (Id. at 56). Her medications include Norco (for 

pain), Lovenox (anticoagulant/blood thinner), iron tablets (for 

anemia), and Aleve, and she has no side effects from her 

medication. (Id. at 43-44, 259). 

In her Function Report submitted to the Agency, Plaintiff 

stated that she cannot stand or walk for a long period of time; 

she cannot bend; she cannot step up with her right leg; and she 

cannot kneel on her right knee. (Id. at 205). She uses a cane 

for walking. (Id. at 42). She testified that she can 

lift/carry two gallons of milk; 2 she can stand about fifteen 

minutes; she can walk about ten minutes; and she can sit about 

twenty minutes. (Id. at 52-53). She cannot bend, squat, kneel, 

or crawl, but she can reach overhead with both arms and can grip 

with her hands. (Id. at 53-54). Plaintiff has a driver’s 

 2 In her Function Report, Plaintiff reported to the Agency that 

she can lift twenty pounds. (Tr. 209).

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license, but she has not driven since her surgery in November 

2012.3 (Id. at 40). 

Plaintiff testified that she is married and has one son who 

is twenty-four years old. (Id. at 38-39). She reported that 

her routine consists of getting up in the morning, getting ready 

for work, going to work, 4 getting home, sometimes cooking, and 

going to bed. (Id. at 202). Plaintiff reported that she takes 

care of her husband and does the cooking, and she takes care of 

their pets. (Id. at 205). She prepares meals every other day 

for her family, which takes one to two hours. (Id. at 206). 

She irons sitting down, washes clothes, and does the dishes. 

(Id.). She can take care of her own personal needs but has to 

sit down to bathe, dress, and do her hair. (Id. at 205). She

needs no reminders to take care of her personal needs or to take 

her medicine. (Id. at 206). Plaintiff shops and can handle her 

own finances. (Id. at 207). She socializes on the telephone 

and goes to church regularly. She stated that she needs no 

reminders about going places, but she needs someone to accompany 

her when she goes out. (Id. at 40, 208). She has no problems 

getting along with family, friends, or neighbors. (Id. at 209). 

 3 Prior to her surgery in November 2012, Plaintiff drove 

regularly. (Tr. 207). 

4 The ALJ found that Plaintiff’s work after her onset date of 

November 10, 2010, did not constitute substantial gainful 

activity. (Tr. 16, 36). 

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She can pay attention “at all time[s];” she finishes what she 

starts and can follow spoken instructions “good,” but she has 

trouble with written instructions. (Id.). She gets along 

“good” with authority figures and has never been fired from a 

job because of problems getting along with people. (Id. at 

210). She handles stress and changes in routine “pretty good.” 

(Id.). 

IV. Analysis

A. Standard of Review 

In reviewing claims brought under the Act, this Court’s 

role is a limited one. The Court’s review is limited to 

determining 1) whether the decision of the Secretary is 

supported by substantial evidence and 2) whether the correct 

legal standards were applied. 5 Martin v. Sullivan, 894 F.2d 

1520, 1529 (11th Cir. 1990). A court may not decide the facts 

anew, reweigh the evidence, or substitute its judgment for that 

of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th 

Cir. 1986). The Commissioner’s findings of fact must be 

affirmed if they are based upon substantial evidence. Brown v. 

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. 

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding 

substantial evidence is defined as “more than a scintilla, but 

 5 This Court’s review of the Commissioner’s application of legal 

principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th 

Cir. 1987).

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less than a preponderance” and consists of “such relevant 

evidence as a reasonable person would accept as adequate to 

support a conclusion.”). In determining whether substantial 

evidence exists, a court must view the record as a whole, taking 

into account evidence favorable, as well as unfavorable, to the 

Commissioner’s decision. Chester v. Bowen, 792 F. 2d 129, 131 

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4

(S.D. Ala. June 14, 1999).

B. Discussion

An individual who applies for Social Security disability 

benefits must prove his or her disability. 20 C.F.R. §§ 

404.1512, 416.912. Disability is defined as the “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); see also 20 C.F.R. §§ 

404.1505(a), 416.905(a). The Social Security regulations 

provide a five-step sequential evaluation process for 

determining if a claimant has proven his disability.6 20 C.F.R. 

 6 The claimant must first prove that he or she has not engaged in 

substantial gainful activity. The second step requires the 

claimant to prove that he or she has a severe impairment or 

combination of impairments. If, at the third step, the claimant 

proves that the impairment or combination of impairments meets 

or equals a listed impairment, then the claimant is 

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§§ 404.1520, 416.920. 

In the case sub judice, the ALJ determined that Plaintiff 

has not engaged in substantial gainful activity since November 

10, 2010, the alleged onset date, and that she has the severe 

impairment of osteoarthritis. (Tr. 16). The ALJ further found

that Plaintiff does not have an impairment or combination of 

impairments that meets or medically equals any of the listed 

impairments contained in 20 C.F.R. Part 404, Subpart P, Appendix 

1. (Id.). 

The ALJ concluded that Plaintiff retains the residual 

functional capacity (hereinafter “RFC”) to perform a range of 

light work, except that Plaintiff can “lift/carry 20 pounds 

 

automatically found disabled regardless of age, education, or 

work experience. If the claimant cannot prevail at the third 

step, he or she must proceed to the fourth step where the 

claimant must prove an inability to perform their past relevant 

work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In 

evaluating whether the claimant has met this burden, the 

examiner must consider the following four factors: (1) objective 

medical facts and clinical findings; (2) diagnoses of examining 

physicians; (3) evidence of pain; and (4) the claimant’s age, 

education and work history. Id. Once a claimant meets this 

burden, it becomes the Commissioner’s burden to prove at the 

fifth step that the claimant is capable of engaging in another 

kind of substantial gainful employment which exists in 

significant numbers in the national economy, given the 

claimant’s residual functional capacity, age, education, and 

work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 

1985). If the Commissioner can demonstrate that there are such 

jobs the claimant can perform, the claimant must prove inability 

to perform those jobs in order to be found disabled. Jones v. 

Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. 

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

Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

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occasionally and 10 pounds frequently; sit/stand at will; 

occasionally bend, balance, stoop, kneel, crouch and crawl; 

never climb ladders, ropes or scaffolds; avoid concentrated 

exposure to cold, heat, wetness, humidity, pulmonary irritants, 

fumes, odors, dust, and gases; and avoid all exposure to 

hazardous conditions such as unprotected heights, dangerous 

machinery and uneven surfaces. The claimant would have the 

following mental limitations: no more than simple, short 

instructions and simple work related decisions with few work 

place changes (unskilled work); only simple, work-related 

decisions with few work place changes (low stress); occasional 

interaction with the general public, supervisors, and coworkers; and she is unable to work in close proximity to otherseasily distracted.” (Id. at 17). The ALJ also determined that 

while Plaintiff’s medically determinable impairments could 

reasonably be expected to produce the alleged symptoms, her

statements concerning the intensity, persistence and limiting 

effects of the alleged symptoms were only partially credible for 

the reasons explained in the decision. (Id. at 23).

Given the Plaintiff’s RFC and her non-exertional 

limitations, the ALJ found that Plaintiff is not capable of 

performing her past relevant work as a cashier

(light/unskilled), fast food worker (light/unskilled), or salad 

bar attendant (light/semiskilled). (Id. at 24, 62). However, 

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utilizing the testimony of a VE, the ALJ concluded that 

considering Plaintiff’s residual functional capacity for a range 

of light work, as well as her age, education and work 

experience, there are jobs existing in the national economy that 

Plaintiff is able to perform, such as “garment sorter,” “garment 

folder,” and “hand finisher,” all of which are classified as 

light and unskilled. (Id. at 17, 25, 62). Thus, the ALJ 

concluded that Plaintiff is not disabled. (Id. at 26).

The Court now considers the foregoing in light of the 

record in this case and the issues on appeal. 

1. Issues

A. Whether the ALJ erred in failing to 

consider the opinions of treating 

physician, Dr. Judy C. Travis, M.D., 

dated May 14, 2013?

In this case, Plaintiff argues that the ALJ erred in 

failing to consider the opinions of her treating physician, Dr. 

Judy C. Travis, M.D., set forth in a second set of Medical 

Source Statement (“MSS”) and Clinical Assessment of Pain (“CAP”) 

forms completed on May 14, 2013. Included in the forms is Dr. 

Travis’ opinion that Plaintiff is unable to maintain gainful 

employment as a result of her pain. (Doc. 14 at 2; Tr. 352-53, 

378-79). The Commissioner counters that the ALJ’s failure to 

consider the second set of MSS and CAP forms is harmless because 

the ALJ did consider the first set of MSS and CAP forms

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completed by Dr. Travis on July 18, 2012. In the earlier forms, 

Dr. Travis likewise opined that Plaintiff is unable to maintain 

gainful employment as a result of her pain. The Commissioner 

maintains that Dr. Travis’ second set of opinions are 

essentially redundant of the first set, which were properly 

rejected by the ALJ because they are inconsistent with the 

substantial evidence in the case. (Doc. 16 at 7-10; Tr. 352-53, 

378-79). Having carefully reviewed the record in this case, the 

Court agrees that Plaintiff’s claim is without merit.

As part of the disability determination process, the ALJ is 

tasked with weighing the opinions and findings of treating, 

examining, and non-examining physicians. In reaching a 

decision, the ALJ must specify the weight given to different 

medical opinions and the reasons for doing so. See Winschel v. 

Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). 

The failure to do so is reversible error. See Williams v. 

Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1 

(M.D. Fla. 2009).

When weighing the opinion of a treating physician, the 

ALJ must give the opinions “substantial weight,” unless good 

cause exists for not doing so. Costigan v. Commissioner, Soc. 

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4 

(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of 

Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v. 

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Heckler, 776 F.2d 960, 962 (11th Cir. 1985)). The opinion of “a 

one-time examining physician — or psychologist,” on the other 

hand, is not entitled to the same deference as a treating 

physician. Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50, 

2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford, 

363 F.3d at 1160). An ALJ is also “required to consider the 

opinions of non-examining state agency medical and psychological 

consultants because they ‘are highly qualified physicians and 

psychologists who are also experts in Social Security disability 

evaluation.’” Milner v. Barnhart, 275 Fed. Appx. 947, 948 

(11th Cir. 2008) (unpublished) (citing 20 C.F.R. § 

404.1527(f)(2)(i)). “The ALJ may rely on opinions of nonexamining sources when they do not conflict with those of 

examining sources.” Id. (citing Edwards v. Sullivan, 937 F.2d 

580, 584-85 (11th Cir. 1991)). 

Whether considering the opinions of treating, examining, or 

non-examining physicians, good cause exists to discredit the 

testimony of any medical source when it is contrary to or 

unsupported by the evidence of record. Phillips v. Barnhart, 

357 F.3d 1232, 1240 (11th Cir. 2004). “Good cause may also 

exist where a doctor’s opinions are merely conclusory, 

inconsistent with the doctor’s medical records, or unsupported 

by objective medical evidence.” Hogan v. Astrue, 2012 U.S. 

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012). 

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The ALJ is “free to reject the opinion of any physician when the 

evidence supports a contrary conclusion.” Sryock v. Heckler, 

764 F.2d 834, 835 (11th Cir. 1985) (per curiam) (citation 

omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx. 

209, 212 (11th Cir. 2010) (The ALJ may reject any medical 

opinion if the evidence supports a contrary finding.).

In the present case, the record shows that Plaintiff was 

treated intermittently by Dr. Travis from June 8, 2010, to May 

14, 2013, primarily for leg, knee, and foot pain.7 (Tr. 349-50, 

352-53, 378-79, 381, 384, 390). Dr. Travis’ notes are sparse 

but indicate that Plaintiff’s pain was treated conservatively 

with anti-inflammatories and pain medications. (Id. at 300, 

349-50). 

On November 6, 2010, Plaintiff saw an orthopedist, Dr. 

Anthony L. Tropeano, M.D., who diagnosed her with a right knee 

medial meniscal tear, chondromalacia, osteoarthritis, a chronic

ACL tear, and synovitis. (Id. at 299-300). Dr. Tropeano 

advised Plaintiff of her treatment options, and she elected to 

proceed with a right knee arthroscopy on November 16, 2010. 

(Id. at 299-300). On January 17, 2011, two months after her

surgery, Dr. Tropeano noted that Plaintiff was “doing well.” 

 7 Dr. Travis treated Plaintiff once in 2010, three times in 2012, 

and three times in 2013. (Tr. 349-50, 352-53, 378-79, 381, 384,

387, 390). 

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(Id. at 313). His notes reflect that Plaintiff still had a 

“little bit of a limp” and that her physical therapy had been 

delayed because she had a family emergency over the holidays. 

(Id.). Plaintiff reported that she was “able to do most of the 

things she wants,” except bending and standing for long periods 

of time. (Id.). Plaintiff also reported that she was “ready to 

get back to work,” and Dr. Tropeano released her to light work 

with no prolonged standing, bending, or squatting. (Id.). On 

February 21, 2011, three months post surgery, Plaintiff reported 

to Dr. Tropeano that she was still having pain with her right 

knee but was getting better. (Id. at 312). Dr. Tropeano gave 

Plaintiff a Supartz injection and noted that she tolerated it 

well. (Id. at 312). He instructed Plaintiff to return in the 

following weeks for the two remaining injections in the Supartz 

series. (Id.). 

On July 22, 2011, eight months post surgery, Dr. Tropeano

noted that Plaintiff had completed the Supartz injections and 

still complained of pain in her right knee and left ankle. (Id.

at 309). Dr. Tropeano’s examination revealed no swelling of the 

right knee, some tenderness, and 0 to 110 degrees of range of 

motion. (Id.). He did not recommend further surgery on her 

knee at that time. (Id.). Dr. Tropeano noted tenderness and 

reduced range of motion in Plaintiff’s left ankle as well. 

(Id.). X-rays of Plaintiff’s left ankle revealed anterior 

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spurring but no fracture, dislocation, or bony pathology. 

(Id.). Dr. Tropeano gave Plaintiff a steroid injection in her 

knee, which she tolerated well, and ordered physical therapy for 

her ankle. (Id.). He instructed Plaintiff to return in a few 

weeks, but the record reflects that Plaintiff did not return to 

Dr. Tropeano. 

Plaintiff filed her application for disability benefits on 

July 19, 2011. (Id. at 143). On October 3, 2011, Plaintiff was 

examined at the request of the Agency by Dr. Stephen J. 

Robidoux, M.D. (Id. at 318-21). Dr. Robidoux noted that 

Plaintiff presented with complaints of arthritis pain in her 

knees and feet. (Id. at 318). Upon examination, Dr. Robidoux 

noted that Plaintiff had a “normal unaided gait,” normal range 

of motion in all upper and lower extremities, no muscle atrophy 

or weakness, was able to squat and raise half way, and had 

normal heel and toe walking. (Id. at 319-20). Dr. Robidoux 

diagnosed Plaintiff with poor arches in her feet and advised her 

to wear shoes with good arch support. (Id.). He also diagnosed 

her with degenerative arthritis. (Id.). Dr. Robidoux noted 

that Plaintiff had recently had arthroscopic surgery on her 

right knee (without a knee replacement) and that it “ha[d]

required no recent follow up.” (Id.). Dr. Robidoux advised 

Plaintiff that she could benefit from weight reduction for her 

knees and feet. (Id.). He found no limitations for sitting, 

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standing, walking, climbing, lifting, carrying, using hand and 

foot controls, handling objects, talking, listening, or travel. 

(Id.). 

Following her initial visit to Dr. Travis in 2010, 

Plaintiff returned to Dr. Travis on February 13, 2012, and March 

13, 2012, with complaints of knee and bilateral foot pain, for 

which Dr. Travis prescribed anti-inflammatory and pain 

medications. (Id. at 349). On July 11, 2012, Plaintiff’s 

attorney wrote a letter to Dr. Travis requesting that she 

complete Clinical Assessment of Pain (“CAP”) and Medical Source 

Statement (“MSS”) forms for Plaintiff. (Id. at 351). 

On July 18, 2012, Dr. Travis completed the forms, opining 

in the CAP form that Plaintiff’s pain is present to such an 

extent as to be distracting to the adequate performance of daily 

activities, that physical activity will increase pain to such an 

extent that bed rest and/or medication will be necessary, and 

that significant side effects from her medication may be 

expected to limit effectiveness of work duties. (Id. at 352).

In addition, Dr. Travis opined in the MSS (physical) form that 

Plaintiff could sit for only four hours in an eight hour work 

day, could stand/walk for less than one hour a day, could 

occasionally lift/carry ten pounds, could frequently lift/carry 

one pound, could rarely bend or stoop, and could never work 

around hazardous machinery. (Id. at 353). Dr. Travis opined, 

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however, that Plaintiff could frequently perform gross 

manipulation and occasionally push/pull with arms and legs, 

balance, climb, perform fine manipulation, reach overhead, and 

operate motor vehicles. (Id.). She also opined that Plaintiff 

would be absent from work more than three times a month. (Id.).

The following day, July 19, 2012, Plaintiff presented to 

Dr. Travis for a “pain assessment requested by lawyer.” (Id. at 

390). Upon examination, Dr. Travis noted that Plaintiff

complained of right knee, left ankle, and left foot pain but had 

“[f]ull range of motion of all joints;” “[a]ll muscles [were] 

functioning well;” and “[n]o atrophy [was] noted.” (Id.). Dr. 

Travis did note that Plaintiff had popping in the right knee 

with extension. (Id.). 

On August 31, 2012, Plaintiff presented to a second 

orthopedist, Dr. W.L. Pinchback, Jr., M.D., for treatment of 

pain in both knees and her left ankle. (Id. at 369). Dr. 

Pinchback’s examination revealed that Plaintiff had an “antalgic 

gait,” some tenderness and decreased range of motion in both 

knees, and some intermittent discomfort in the left ankle. (Id.

at 370). X-rays of Plaintiff’s left ankle showed early 

degenerative changes, but Dr. Pinchback noted that “it is not 

severe.” (Id.). X-rays of Plaintiff’s left knee showed some 

narrowing of the patella femoral joint and associated 

osteophytes, but otherwise the joint spaces were fairly well 

Case 2:15-cv-00041-B Document 22 Filed 03/28/16 Page 17 of 30
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maintained. (Id.). X-rays of Plaintiff’s right knee showed 

severe degenerative arthritis involving the medial compartment 

of the knee with bone-on-bone contact. (Id.). Dr. Pinchback 

discussed with Plaintiff the option of having a total right knee 

replacement; however, given her young age, he recommended 

injections instead. Plaintiff agreed. (Id.). Dr. Pinchback 

did not recommend any treatment for Plaintiff’s ankle and left 

knee. (Id.). Subsequently, on September 28, 2012, Plaintiff 

contacted Dr. Pinchback’s office and advised that she wished to 

proceed with surgery. (Id. at 367). On November 8, 2012, Dr. 

Pinchback performed a total right knee arthroplasty. (Id. at 

363). On November 30, 2012, Plaintiff returned for her three 

week post-surgery follow up examination, and Dr. Pinchback noted 

that she was “doing very well and making decent progress.” (Id.

at 364). Dr. Pinchback instructed her to continue physical 

therapy and return in three weeks. (Id.). Plaintiff’s physical 

therapist noted on that same date that Plaintiff’s knee hurts 

but “she feels better overall.” (Id. at 362). On December 21, 

2012, Plaintiff returned for her six week post-surgery follow up 

examination, and Dr. Pinchback noted that “she is doing very 

well;” “her wound is healing well;” and “she is making excellent 

progress.” (Id. at 360). Dr. Pinchback instructed her to 

continue physical therapy and return in six weeks. (Id.). 

Plaintiff returned on February 1, 2013, three months after her 

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knee replacement surgery, and Dr. Pinchback noted that she was 

“doing very well and making excellent progress.” (Id. at 355). 

Her examination revealed that she was flexing her knee about 90 

degrees and extending it to almost 0 degrees; her surgical 

incision was well healed and non-tender; x-rays showed excellent 

position of her knee prosthesis with no loosening. (Id.). Dr. 

Pinchback discontinued physical therapy at that time and 

recommended that Plaintiff use a cane until her limp resolved

and return in three months. (Id. at 356). 

On April 1, 2013, one week after her administrative 

hearing, Plaintiff returned to Dr. Travis and reported that she 

was there for a “check up.” 8 (Id. at 387). Dr. Travis found

that Plaintiff had no swelling, no deformities, good muscle mass 

bilaterally, full range of motion of all joints, all muscles 

functioning well, and no atrophy noted, although there was still 

popping in the right knee with extension. (Id. at 388). Dr. 

Travis prescribed pain medication and instructed Plaintiff to 

return as needed. (Id.). Two weeks later, on April 16, 2013, 

Plaintiff returned to Dr. Travis with complaints of pain in her 

right knee, left foot, and left ankle, and Dr. Travis’ findings 

were the same as the April 1, 2013, visit (no swelling, no 

 8 Plaintiff’s preceding visit to Dr. Travis had been July 19, 

2012, the day after Dr. Travis completed the first MSS and CAP 

forms. (Tr. 390). 

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deformities, good muscle mass bilaterally, full range of motion 

of all joints, all muscles functioning well, no atrophy, and 

popping in the right knee with extension). (Id. at 385). 

On May 14, 2013, one week before the ALJ issued his 

decision on May 23, 2013, Dr. Travis completed a second set of 

MSS and CAP forms. (Id. at 26, 378-79). The second MSS is 

substantially similar to the first, with the notable exceptions

that Dr. Travis increased Plaintiff’s ability to lift/carry from 

one pound to five pounds frequently; she decreased the frequency 

of any climbing, balancing, fine manipulation, and operating 

motor vehicles from occasionally to rarely; she noted that 

Plaintiff was using an assistive device; and she expressly based 

her opinions on Plaintiff’s problems with restless leg, “severe 

[illegible] knee,” morbid obesity, and chronic low back pain.

(Id. at 353, 378). In addition, Dr. Travis’ second CAP form is 

substantially similar to the first one that she completed on 

July 18, 2012, with the notable exceptions that she decreased 

the degree of pain that would be caused by physical activity 

from necessitating bed rest to only causing distraction from the 

task, and she increased the severity of side effects caused by 

medications from significant to severe. (Id. at 352, 379). 

While Plaintiff makes much of the fact that the ALJ did not 

discuss the second set of MSS and CAP forms in his decision, 

given the substantial similarity with the first set of MSS and 

Case 2:15-cv-00041-B Document 22 Filed 03/28/16 Page 20 of 30
21

CAP forms and given the lack of support in the record for Dr. 

Travis’ opinions in both sets (as discussed below), the Court 

finds that any error by the ALJ in failing to consider the 

second set was harmless. See Battle v. Astrue, 243 Fed. Appx. 

514, 522 (11th Cir. 2007) (unpublished) (errors are harmless if 

they do not prejudice the claimant); see also Ware v. Schweiker, 

651 F. 2d 408, 412 (5th Cir. 1981) (remand would be a “wasteful 

corrective exercise” when “no further findings could be made 

that would alter the ALJ’s determination” given the record as a 

whole). 

In this case, the ALJ properly found that Dr. Travis’

opinions set forth in the MSS and CAP forms completed on July 

18, 2012 (that Plaintiff cannot perform any gainful activity

because of the severity of her pain and exertional limitations)9

are undermined by Dr. Travis’ own conservative, infrequent

treatment of Plaintiff, as well as her own examination findings. 

For example, on July 19, 2012, the day after she completed the 

first set of MSS and CAP forms, and again on April 1 and April 

16, 2013, five months after Plaintiff’s right knee replacement 

surgery by Dr. Pinchback, Dr. Travis found that Plaintiff had 

full range of motion in all joints; all of her muscles were 

 9 While Dr. Travis does not specify in the first CAP form the 

source of Plaintiff’s pain, the Court assumes based on the 

medical records that Dr. Travis is referring to Plaintiff’s 

knee, leg, foot, and ankle problems. (Tr. 352). 

Case 2:15-cv-00041-B Document 22 Filed 03/28/16 Page 21 of 30
22

functioning well; and she had no atrophy, no swelling, no 

deformities, and good muscle mass bilaterally. (Id. at 363, 

385, 388, 390-91). These findings contradict the severity of 

pain and limitations expressed in both sets of Dr. Travis’ MSS 

and CAP forms. (Id. at 352-53, 378-79). 

In addition to being inconsistent with her own findings, 

Dr. Travis’ opinions are inconsistent with the remaining 

substantial evidence in this case, including Dr. Pinchback’s 

treatment notes on August 31, 2012, that the degenerative 

changes in Plaintiff’s left ankle and left knee were not severe 

(id. at 370); his treatment notes on November 30, 2012, three 

weeks after Plaintiff’s total right knee replacement surgery, 

that Plaintiff was “doing very well and making decent progress” 

(id. at 364); his treatment notes on December 21, 2012, six 

weeks post-surgery, that she was “doing very well,” that “her 

wound [was] healing well,” and that she was “making excellent 

progress” (id. at 360); his treatment notes on February 1, 2013, 

three months post surgery, that she was “doing very well and 

making excellent progress,” that she was flexing her knee about 

90 degrees and extending it to almost 0 degrees, that her 

incision was well healed and non-tender, that she had no

swelling, that her x-rays showed excellent position of the knee 

prosthesis with no loosening, and that she no longer required 

physical therapy and could return in three months. (Id. at 355-

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23

56). 

In addition, Dr. Travis’ opinions set forth in both sets of 

MSS and CAP forms are inconsistent with the opinions of 

consultative examiner, Dr. Stephen J. Robidoux, M.D., who 

evaluated Plaintiff on October 3, 2011, and found her to have no 

limitations whatsoever. (Id. at 321). Dr. Robidoux’s 

examination findings include that Plaintiff had a “normal 

unaided gait,” normal range of motion in all upper and lower 

extremities, full range of motion in her back, no muscle atrophy 

or weakness, and that she was able to squat and raise half way 

and had normal heel and toe walking. (Id. at 319-20).

Dr. Travis’ opinions are also inconsistent with Plaintiff’s 

reported activities of daily living which include cooking for 

her family, ironing, washing clothes, doing the dishes, taking 

care of her own personal needs, shopping, and attending church 

regularly. (Id. at 40, 202, 205-08). In addition, Dr. Travis’ 

opinions in the two MSS forms that Plaintiff can only lift/carry 

ten pounds occasionally and one to five pounds frequently is 

directly contradicted by Plaintiff’s statement to the Agency 

that she can lift twenty pounds. (Id. at 209). Moreover, Dr. 

Travis’ opinions in both CAP forms that the side effects of 

Plaintiff’s medications significantly limit her ability to work 

are contradicted by Plaintiff’s own testimony that she has no 

side effects from her medications. (Id. at 43). 

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Based on the foregoing, the Court finds that the ALJ had 

good cause to assign little weight to the opinions of Dr. Travis

set forth in the July 18, 2012, MSS and CAP forms. Moreover, 

because Dr. Travis’ opinions set forth in the second set of MSS 

and CAP forms on May 14, 2013, are likewise inconsistent with 

the substantial evidence in this case, they would not have 

altered the ALJ’s determination; thus, the ALJ’s failure to 

consider them is harmless. See Battle, 243 Fed. Appx. at 522; 

Ware, 651 F. 2d at 412.

In addition, based on the evidence set forth in detail 

above, the Court finds that the substantial evidence in this 

case supports the ALJ’s finding that Plaintiff can perform a 

range of light work, with the stated restrictions. Accordingly, 

Plaintiff’s claim must fail.

B. Whether the Appeals Council erred in 

failing to consider medical records 

submitted by Plaintiff based on the dates 

of the treatment records?

Last, Plaintiff argues that the Appeals Council erred in 

failing to properly consider her treatment records from Dr. 

Pinchback dated June 7, 2013, through August 12, 2013, following

the ALJ’s decision on May 23, 2013. (Doc. 14 at 8; Doc. 12-1). 

Plaintiff argues that she submitted the additional medical 

records to the Appeals Council; however, the Appeals Council

reviewed the records and held that they did not relate to the 

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25

period in question and, therefore, did not warrant granting 

review. (Doc. 14 at 8; Doc. 12-1; Tr. 1-4). The Appeals 

Council further declined to make the new evidence part of the 

record.10 (Id.). Having carefully reviewed the entire record in 

this case, including the treatment records at issue, the Court 

finds that the new evidence submitted by Plaintiff does not 

provide a basis for changing the ALJ’s decision in this case. 

Therefore, any error by the Appeals Council in its evaluation of 

that new evidence is harmless.

“With a few exceptions, the claimant is allowed to present 

new evidence at each stage of [the] administrative process.” 

Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1261

(11th Cir. 2007). “Evidence submitted for the first time to the 

Appeals Council is determined under a Sentence Four analysis.” 

Jack v. Commissioner of Soc. Sec., 2015 U.S. Dist. LEXIS 176372, 

*21, 2015 WL 10353144, *6 (M.D. Fla. Dec. 30, 2015), report and 

recommendation adopted, 2016 WL 706364 (M.D. Fla. Feb. 23, 2016)

(citing Ingram, 496 F.3d at 1261). “The Appeals Council must 

consider new, material, and chronologically relevant evidence 

and must review the case if ‘the administrative law judge’s 

 10 Although the Appeals Council declined to make the new evidence

part of the record, this Court granted Plaintiff’s motion to 

correct the record to include the new evidence. (Doc. 15). 

Therefore, Dr. Pinchback’s treatment records at issue, which 

relate to Plaintiff’s treatment after the ALJ’s decision, are 

part of the record on appeal. (Doc. 12-1). 

Case 2:15-cv-00041-B Document 22 Filed 03/28/16 Page 25 of 30
26

action, findings, or conclusion is contrary to the weight of the 

evidence currently of record.’” Ingram, 496 F.3d at 1261

(quoting 20 C.F.R. § 404.970(b)). “[W]hen a claimant properly 

presents new evidence to the Appeals Council, a reviewing court 

must consider whether that new evidence renders the denial of 

benefits erroneous.” Id. at 1262. Evidence is material if it 

is “relevant and probative so that there is a reasonable 

possibility that it would change the administrative outcome.” 

Caulder v. Bowen, 791 F. 2d 872, 877 (llth Cir. 1986).

In this case, Plaintiff properly submitted her subsequent 

treatment records from Dr. Pinchback to the Appeals Council, as 

they were created after the ALJ’s decision dated May 23, 2013. 

Thus, they were “new.” In addition, having reviewed the new 

evidence at length, the Court finds that the records do shed 

light on why Plaintiff was experiencing pain in her right knee 

during the relevant period; thus, they were “chronologically 

relevant.” (Doc. 12-1). Therefore, the Appeals Council erred 

in rejecting Plaintiff’s new evidence on the basis that it was 

“about a later time” and did not affect the question of whether 

Plaintiff was disabled on or before May 23, 2013. (Tr. 2). 

Nevertheless, as previously discussed herein, errors which do 

not prejudice the Plaintiff and which would not change the 

disability determination are harmless. See Battle, 243 Fed. 

Appx. at 52; Wright, 153 Fed. Appx. at 684. 

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In this case, the new evidence submitted by Plaintiff to 

the Appeals Council shows that on June 7, 2013, two weeks after 

the ALJ’s decision, Plaintiff presented to Dr. Pinchback with 

complaints of right knee pain. (Doc. 12-1 at 8). Dr. Pinchback

noted that Plaintiff had no swelling, instability, or muscle 

weakness of the knee, but she did have thick, tight scar tissue 

in the knee. (Id. at 9). X-rays further showed that the 

prosthesis was in excellent position, that Plaintiff had good 

bone mineralization, and that she did not have signs of reflex 

sympathetic dystrophy. (Id.). However, Plaintiff had

“extensive adhesive capsulitis” in her right knee, and Dr. 

Pinchback recommended arthroscopic debridement and release of 

adhesions.11 (Id.). On June 20, 2013, Dr. Pinchback performed 

arthroscopic debridement, synovectomy, and lysis of adhesions 12

in Plaintiff’s right knee. (Id. at 10-12). On June 28, 2013, 

one week post surgery, Plaintiff’s physical therapist noted that 

she was “doing well” and that she stated that her knee “is 

feeling better.” (Id. at 14). On July 3, 2013, two weeks post 

 11 Adhesive capsulitis is “caused by tightening of the soft 

tissue and formation of scar tissue.” See http://www.

mountsinai.org/patient-care/health-library/treatments-and-proce

dures/adhesive-capsulitis-arthroscopic-surgery. Doctors perform 

arthroscopic surgery to break up, cut, and remove scar tissue to 

improve range-of-motion. Id.

12 Lysis of adhesions is the process of cutting scar tissue 

within the body. See http://www.mountsinai.org/patient-care

/health-library/treatments-and-procedures/lysis-of-adhesions.

Case 2:15-cv-00041-B Document 22 Filed 03/28/16 Page 27 of 30
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surgery, Dr. Pinchback noted that Plaintiff “is doing very 

well,” “has minimal complaints of pain and discomfort,” and “has 

responded well to her physical therapy program.” (Id. at 4). 

Dr. Pinchback’s physical examination revealed that Plaintiff 

could extend her knee to 0 degrees and flex to about 90 degrees, 

that she ambulated “with a much better gait,” and that she 

“appear[ed] to be more comfortable.” (Id. at 5). Dr. Pinchback 

remarked that he “could see the pain relief in her face.” 

(Id.). He instructed Plaintiff to continue physical therapy and 

return for a follow up in four to six weeks. (Id.). Plaintiff 

returned on August 12, 2013, and Dr. Pinchback noted, “[t]his 

patient is in today and doing well now.” (Id. at 2). His 

examination revealed that she could flex her right knee about 90 

degrees and extend it to 0 degrees. (Id. at 3). Dr. Pinchback 

advised Plaintiff that 90 degrees of flexion is considered 

acceptable but that he expected her to do much better with time 

and continued exercise. (Id.). He advised Plaintiff to “walk 

as much as she can” and return in three months for a check up. 

(Id.). This is the final treatment note from Dr. Pinchback in 

the record.

In sum, Plaintiff’s new evidence shows that she formed scar 

tissue in her right knee following her knee replacement surgery 

on November 8, 2012, which caused her pain, and prompted Dr. 

Pinchback to recommend and perform arthroscopic surgery on her 

Case 2:15-cv-00041-B Document 22 Filed 03/28/16 Page 28 of 30
29

right knee seven months later, on June 20, 2013, to debride and 

remove the scar tissue. However, nothing in the subsequent 

treatment records by Dr. Pinchback reflects that Plaintiff was 

disabled during the relevant period. (Id. at 363; Doc. 12-1 at 

10-12). To the contrary, the substantial evidence in this case

(specifically including Plaintiff’s treatment records, the 

consultative report of Dr. Robidoux, the evidence of Plaintiff’s 

activities of daily living, and the most recent treatment 

records from Dr. Pinchback), shows that Plaintiff is capable of 

performing a range of light work, with the stated restrictions.

Having determined that the new evidence presented to the 

Appeals Council, i.e., Dr. Pinchback’s treatment records from 

June 7, 2013, to August 12, 2013, does not render the ALJ’s 

denial of benefits erroneous, any error by the Appeals Council 

in its evaluation of the evidence is harmless and does not 

warrant reversal. Accordingly, Plaintiff’s claim must fail. 

V. Conclusion 

For the reasons set forth herein, and upon careful 

consideration of the administrative record and memoranda of the 

parties, it is hereby ORDERED that the decision of the 

Commissioner of Social Security denying Plaintiff’s claim for a 

period of disability and disability insurance benefits be 

AFFIRMED.

DONE this 28th day of March, 2016.

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 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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