IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

STEPHANIE L. KENNEDY, *

 * 

Plaintiff, *

*

vs. * CIVIL ACTION 09-00449-B

*

MICHAEL J. ASTRUE, *

Commissioner of *

Social Security, *

*

Defendant. *

ORDER

Plaintiff Stephanie L. Kennedy (“Plaintiff”) brings this

action seeking judicial review of a final decision of the

Commissioner of Social Security denying her claim for a period of

disability, disability insurance benefits and supplemental security

income under Titles II and XVI of the Social Security Act, 42

U.S.C. §§ 401 et seq., and 1381 et seq. On March 4, 2010, the

parties consented to have the undersigned conduct any and all

proceedings in this case. (Doc. 15). Thus, this case 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 Fed.R.Civ.P.

73. (Doc. 16). Oral argument was held February 22, 2010. Upon

careful consideration of the administrative record, oral arguments

and the memoranda of the parties, the undersigned finds that the

decision of the Commissioner is due to be REVERSED and REMANDED.

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 1 of 23
2

 

I. Procedural History

Plaintiff protectively filed applications for disability

income benefits and supplemental security income benefits on March

16, 2007. Plaintiff alleges that she has been disabled since April

5, 2006, due to psoriasis. (Tr. 112-118, 127). Plaintiff’s

applications were denied initially and she timely filed a Request

for Hearing. (Tr. 41-53, 56). On March 12, 2009, Administrative

Law Judge Warren L. Hammond, Jr. (“hereinafter ALJ Hammond”) held

an administrative hearing, which was attended by Plaintiff, her

representative and a vocational expert (“hereinafter VE”). (Tr.

18-39). On April 1, 2009, ALJ Hammond issued an unfavorable

decision finding that Plaintiff is not disabled. (Tr. 6-17).

Plaintiff’s request for review was denied by the Appeals Council

(“AC”) on June 10, 2009. (Tr. 1-4). As a result, the ALJ’s

decision became the final decision of the Commissioner in

accordance with 20 C.F.R. § 404.981. (Id.) The parties 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).

II. Issue on Appeal

Whether the ALJ erred in failing to give substantial

weight to the opinion of Plaintiff’s treating

dermatologist. 

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 2 of 23
3

III. Factual Background

Plaintiff was born on February 27, 1972 and was 37 years old

at the time of the March 12, 2009 administrative hearing. (Tr. 21,

112, 115). Plaintiff has a high school education, and last worked

in 2006. (Tr. 127, 132). Plaintiff testified that in her last

jobs, she was a machine operator at Southern Pride, and she lifted

wood at Linden Lumber. (Tr. 22). According to Plaintiff, she broke

out with a rash in April 2006, and had to stop working because she

was itching so badly. (Tr. 24). Plaintiff testified that she

takes medication for her rash, that her skin condition has

improved, and that her medication causes her to be tired all the

time, and to experience dry mouth. (Tr. 26). Plaintiff also

testified that she experiences pain in her feet on a regular basis;

however, she does not take any pain medication. (Tr. 25-26).

Plaintiff further testified that she can feed, bathe, dress, shop

or groceries, cook, and perform light housekeeping chores for

herself and her two children. (Tr. 22, 27).

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.

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 3 of 23
1

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).

4

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).1 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 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 (S.D. Ala.

June 14, 1999).

B. Discussion

An individual who applies for Social Security disability

benefits must prove her disability. 20 C.F.R. §§ 404.1512,

416.912. Disability is defined as the “inability to do any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 4 of 23
2

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 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; (4) the claimant’s

age, education and work history. Id. at 1005. 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 (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)). 

5

result in death or which has lasted or can be expected to last for

a continuous period of not less than twelve months.” 42 U.S.C. §§

423(d)(1)(A), 404.1505(a), 416.905(a). The Social Security

regulations provide a five-step sequential evaluation process for

determining if a claimant has proven her disability. 20 C.F.R. §§

404.1520, 416.920.2 

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 5 of 23
3

Keflex is a cephalosporin antibiotic used to treat

infections caused by bacteria. See, www.drugs.com. (Last

visited February 3, 2010). 

4

Nizoral is an antifungal antibiotic used to treat

infections caused by fungus. See, www.drugs.com. (Last visited

February 3, 2010). 

6

The ALJ determined that Plaintiff met the insured status

requirements of the Social Security Act through September 30, 2011,

and that she has not engaged in substantial gainful activity since

her alleged onset date. The ALJ concluded that while Plaintiff has

the severe impairment of psoriasiform spongiotic dermatitis, it

does not meet or medically equal the criteria for any of the

impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1,

Regulations No. 4. (Tr. 11, 13). The ALJ found that Plaintiff has

the residual functional capacity for light work, excluding

climbing, work around hazardous machinery or heights, and exposure

to environmental irritants, and that she is unable to perform her

past relevant work. (Tr. 13, 15). The ALJ also concluded that,

considering Plaintiff’s age, education, work experience and

residual functional capacity, there are jobs that exist in

significant numbers in the national economy that Plaintiff can

perform. (Tr. 16). 

The relevant evidence of record reflects that Plaintiff

presented to Frank L. Dozier, M.D., on February 6, 2007. She

complained of a rash all over her body, and Dr. Dozier prescribed

Keflex3

 and Nizoral4. She returned to Dr. Dozier on February 14,

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 6 of 23
5

Impetigo is an acute contagious staphylococcal or

streptococcal skin disease characterized by vesicles, pustules,

and yellowish crusts. See, www.nlm.nih.gov. (Last visited

February 3, 2010). 

6

Dermatomycosis is a disease of the skin caused by infection

with a fungus. Also called epidermomycosis. See,

www.nlm.nih.gov. (Last visited February 3, 2010). 

7

Psoriasis is a chronic skin disease characterized by

circumscribed red patches covered with white scales. See,

www.nlm.nih.gov. (Last visited February 3, 2010). 

7

complaining of an itching type of rash for three to four days. On

physical exam, Plaintiff had reddened, circular lesions under both

breasts and multiple circular lesions on her buttocks and arms.

Dr. Dozier diagnosed her with impetigo5 and dermatomycosis6 and

prescribed Nizoral cream and Keflex. He also referred Plaintiff to

Charles H. Behlen, M.D., at the Dermatology Center. (Tr. 181).

Plaintiff was seen by Dr. Behlen at the Dermatology Center on

March 7, 2007. Dr. Behlen diagnosed Plaintiff with severe

widespread psoriasis7 and referred her to University of Alabama,

Birmingham (hereinafter “UAB”) for treatment. (Tr. 229-231). 

Plaintiff was treated by Hillary L. Hendrick, M.D. at the

emergency room at UAB on March 21, 2007. Plaintiff reported that

the rash was itching and that it had continued to spread despite

her having taken several medications. On physical exam, Dr.

Hendrick described the rash as 1 to 1.5 cm circular plaques with

red margins and white dry scale, and surrounded by a rim of

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 7 of 23
8

Erythema is the abnormal redness of the skin due to

capillary congestion (as in inflammation). See, www.nlm.nih.gov.

(Last visited February 3, 2010). 

9

Erythroderma is a definitive term that refers to a scaling

erythematous dermatitis involving 90% or more of the cutaneous

surface. See, www.emedicine.medscape.com. (Last visited

February 15, 2010).

10Erythematous is relating to or marked by erythema. See,

www.nlm.nih.gov. (Last visited February 3, 2010). 

11Nummular is characterized by circular or oval lesions or

drops. See, www.nlm.nih.gov. (Last visited February 3, 2010). 

12Annular is of, relating to, or forming a ring. See,

www.nlm.nih.gov. (Last visited February 3, 2010). 

8

erythema8. Dr. Hendrick also noted that the plaques merged to

produce confluent erythroderma9 on areas including the ears, lower

back and anterior thighs, and that the lesions were covered in a

dry yellow scale. Dr. Hendrick diagnosed Plaintiff with severe

refractory psoriasis and referred her to Kirklin Clinic. (Tr. 183-

184).

Plaintiff began treatment with dermatologist Naveed Sami,

M.D., at Kirklin Clinic in March 2007. (Tr. 196-197). On physical

exam in April 2007, Dr. Sami and dermatology resident Elise

Lirette, M.D., noted significant erythematous10 plaques on her scalp

with overlying thick silvery scale, and erythematous nummular11 to

annular12 plaques with overlying silvery scale over roughly 98% of

her body. They discontinued methotrexate. (Tr. 194). A 4-mm

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 8 of 23
13Psoriasiform dermatitis is inflammation of the skin,

resembling psoriasis or a psoriatic lesion. See,

www.nlm.nih.gov. (Last visited February 3, 2010). 

14Subacute spongiotic dermatitis is a form of eczema or

dermatitis. It has smaller blisters, developed by intercellular

edema, than those in acute spongiotic dermatitis, and subacute

spongiotic dermatitis has greater thickening of the prickle-cell

layer of the skin. See, www.dermatitisanswers.com. (Last

visited, February 3, 2010.) 

15Erythrodermic psoriasis is a particularly inflammatory form

of psoriasis that often affects most of the body surface. See,

www.MedicineNet.com. (Last visited, February 5, 2010). 

16Hyperpigmentation is excess pigmentation in a bodily part

or tissue. See, www.nlm.nih.gov. (Last visited February 3,

2010). 

17Angiotensin sensitivity test is positive when an effective

pressor dose causes a rise in diastolic blood pressure. See,

www.medical-dictionary.thefreedictionary.com. (Last visited

February 3, 2010). 

9

punch biopsy resulted in a finding of psoriasiform dermatitis13 with

subacute spongiotic dermatitis14. (Tr. 202, 213).

Dr. Sami’s treatment notes dated April 20, 2007 reflect that

Plaintiff was erythrodermic15 the prior week, that she had been

started on prednisone for five days and that she was currently on

a reduced dosage of prednisone for the next five days. Plaintiff

reported significant improvements since the prior week, and that

most of her erythroderma had resolved. Dr. Sami noted significant

post-inflammatory hyperpigmentation16, and that Plaintiff had

continued to use tobacco in spite of the recommendation that she

discontinue it. He noted her negative serological work-up and that

her AST17 continued to come down but had not yet reached baseline

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 9 of 23
18Exfoliative is the peeling of the horny layer of the skin. 

See, www.nlm.nih.gov. (Last visited February 3, 2010). 

19Axilla is the armpit. See, www.nlm.nih.gov. (Last visited

February 3, 2010). 

10

and within normal limits. Dr. Sami’s impressions were of resolved

exfoliative18 erythroderma. He continued Plaintiff on a tapering

dose of prednisone, and instructed her to see her primary care

physician for control of her blood pressure. (Tr. 191).

Plaintiff next saw Dr. Sami on April 27, 2007. Dr. Sami

observed that Plaintiff had improved significantly since being on

prednisone, and she reported no new areas of involvement.

Plaintiff reported that she stopped chewing tobacco, and that her

primary care physician told her that her blood pressure was normal.

Dr. Sami’s assessments were of subacute spongiotic dermatitis, and

drug eruption versus allergic contact dermatitis. Plaintiff was

instructed to continue a tapering dose of prednisone, the

methotrexate was resumed, and Plaintiff was advised against

consuming any alcohol. (Tr. 189). 

Plaintiff returned to Dr. Sami for follow-up on May 4, 2007.

Dr. Sami noted that Plaintiff had misunderstood instructions and

took methotrexate every day for five days, instead of taking only

one dose. He noted areas of pus formation under the right axilla19,

right lower extremity and buttocks. On physical exam, Dr. Sami

noted hyperpigmented patches of scale on Plaintiff’s hands and

feet, a large pustule on her right lower extremity and few pustules

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 10 of 23
20Folic acid is a type of B vitamin that helps your body

produce and maintain new cells. See, www.drugs.com. Last

visited, February 2, 2010.

11

on the right axilla. He prescribed prednisone at a reduced dose,

and instructed Plaintiff to clean areas that appear infected. (Tr.

188). 

During a May 16, 2007 visit, Dr. Sami noted that Plaintiff’s

liver function tests were mildly elevated due to Plaintiff’s

confusion in taking methotrexate two weeks before. Plaintiff

reported that she had no new lesions and that she was improving as

most of the areas were well healed. The methotrexate and folic

acid20 were resumed, and the prednisone was continued. (Tr. 245).

Plaintiff was next seen by Dr. Sami on May 23, 2007. Dr. Sami

noted that Plaintiff’s exfoliative erythroderma was presumed to be

either allergic contact dermatitis or possibly the result of

chewing tobacco she consumed on a regular basis. Plaintiff

reported tolerating a tapered dose of prednisone and methotrexate

well, and that she had no side effects. (Tr. 244). 

Plaintiff saw Dr. Sami in June, July and August of 2007. While

Plaintiff reported that she was no longer consuming any form of

tobacco, Dr. Sami noted her chewing tobacco as a possible culprit

of the eruption. Plaintiff reported tolerating all medications

well. During July, numerous hyperpigmented patches were noted on

Plaintiff’s upper and lower extremities, back, chest and lower

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 11 of 23
21Seborrheic dermatitis is a red, scaly, itchy dermatitis

chiefly affecting areas with many large sebaceous glands, like

the face, scalp, or chest. See, www.nlm.nih.gov. (Last visited

February 3, 2010). 

22Dr. Sami was sometimes assisted by dermatology resident

Fajat Varma, M.D.

12

legs. Plaintiff was diagnosed with spongiotic dermatitis and

seborrheic dermatitis21, and prescribed an increased dose of

methotrexate. (Tr. 241-242).

Dr. Sami completed a Statement of Incapacitating Condition on

August 16, 2007. He opined that Plaintiff should avoid contact

with any chemicals and avoid too much sun exposure. He further

opined that Plaintiff’s condition does not eliminate all likelihood

of her ability to ever engage in gainful employment again, that her

condition substantially reduces her ability to work, and that she

is restricted to part-time work. (Tr. 227).

Plaintiff was treated by Dr. Sami on approximately eight

occasions during 200822. During June, Plaintiff reported being out

of methotrexate for approximately one month. Plaintiff reported an

eruption of lesions over the past month, and that she was

essentially clear as long as she was on methotrexate and

prednisone. It was also noted that Plaintiff reported tolerating

the methotrexate and prednisone well. (Tr. 237-238). During a

July 16th visit, Dr. Sami observed that Plaintiff did not come for

regular follow-ups, that her AST was elevated on her last visit,

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 12 of 23
13

and that she denied alcohol use. (Tr. 236). During a July 29th

visit, Dr. Sami observed that Plaintiff previously had elevated

liver functions, but that they were back down to normal, and that

she was tolerating her medication well and had made some

improvement since her last visit. (Tr. 235). She was strongly

encouraged to refrain from alcohol use. By her August 28 visit,

Dr. Sami noted that Plaintiff had cleared up very well, and was

tolerating the methotrexate well. He further noted that Plaintiff

was no longer consuming the “non-alcoholic beverage” and that her

liver functions had improved. (Tr. 233). When Plaintiff was seen

by Dr. Sami on October 8, 2008, he observed that she had been on

methotrexate, which cleared her dermatitis very well. (Tr. 234,

252, 256). 

Dr. Sami completed a Medical Statement on November 25, 2008.

He reported that Plaintiff suffers from eczematous

dermatitis/severe psoriasis, that she has extensive lesions

involving her feet and which cause marked limitations in function

despite treatment, and that she has extensive lesions involving the

axillae or perineum despite treatment. He noted that Plaintiff’s

medication, methotrexate, increases her liver function, but that

her liver function has improved. Dr. Sami opined that Plaintiff

can work four hours per day; stand 30 to 60 minutes a day; stand

one to four hours in a workday; sit 30 to 60 minutes at a time; and

sit two to four hours in a workday. He further opined that

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 13 of 23
14

Plaintiff cannot lift any weight on a frequent basis, but that she

can lift up to five pounds occasionally. He indicated that

Plaintiff can do fine or gross manipulation with both hands

frequently to constantly, can tolerate heat and cold occasionally

to frequently, and that her pruritis is severe. Dr. Sami opined

that Plaintiff has a severe form of eczema which, at points, has

progressed to erythroderma. He noted this can be a life

threatening condition if not controlled in a timely manner. (Tr.

247).

Dr. Sami also completed a Chronic Pain Assessment on November

25, 2008. He opined that Plaintiff needs to be evaluated by her

primary care physician. He also opined that when the disease is

present, and Plaintiff has an exacerbation, she suffers from

moderate to moderately severe pain, and has marked restriction of

activities of daily working and living, but that the disease is

currently under control. (Tr. 249). 

Dr. Sami completed a Physical Abilities and Limitations

Evaluation form, which is undated. He diagnosed Plaintiff with

severe eczema/severe psoriasis. He opined that Plaintiff is

limited to standing 15 to 30 minutes at a time, and one to two

hours total in a workday. He further limited Plaintiff to sitting

15 to 30 minutes at a time, and two to four hours total in a

workday. He opined that Plaintiff can lift up to ten pounds

occasionally, and can bend, stoop, and balance occasionally to

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 14 of 23
15

frequently. In addition, he opined that Plaintiff can constantly

do fine or gross manipulation with her left and right hands; can

occasionally to frequently operate a motor vehicle; can

occasionally tolerate heat and cold, cannot tolerate dust, smoke or

fumes exposure, and she needs to elevate her legs occasionally in

an eight hour workday. Dr. Sami stated that Plaintiff suffers pain

when her condition is active, and that she is likely to miss two

days per month from work as a result of her impairment or treatment

when her disease is controlled. Dr. Sami stated that Plaintiff is

treated with methotrexate for severe eczema, and that he has

encouraged her to refrain from exposure to environments that make

her more at risk for infection since her medical treatment

suppresses her immune system. (Tr. 251). 

Plaintiff was seen by Dr. Sami on December 31, 2008. Dr. Sami

noted that Plaintiff was tolerating methotrexate well, and that she

did not have any new lesions.(Tr. 254). During her last visit of

record, on March 31, 2009, Dr. Sami noted that Plaintiff was doing

very well on methotrexate, and that she had no new exacerbation. 

He diagnosed her with nummular eczema/spongiotic dermatitis/atopic

dermatitis, well controlled. Plaintiff’s methotrexate was

decreased, and she was continued on folic acid. (Tr. 262). 

Medical Consultant Kimberly White completed a Physical

Residual Functional Capacity Assessment on May 31, 2007. She

opined that Plaintiff is limited to occasionally lifting/carrying

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 15 of 23
16

20 pounds and frequently lifting/carrying 10 pounds. She further

opined that Plaintiff can stand/walk/sit about six hours in an

eight-hour workday, and is unlimited in her ability to push and

pull with hand and foot controls. Ms. White opines that Plaintiff

cannot climb ladders, ropes or scaffolds at all, and can climb

ramps and stairs, and can balance only occasionally. She further

opines that Plaintiff is unlimited in her ability to stoop, kneel,

crouch or crawl, and has no manipulative, visual, or communicative

limitations. Ms. White also opines that Plaintiff should avoid

even moderate exposure to hazards such as machinery and heights,

and should avoid concentrated exposure to extreme cold and heat.

She further opines that Plaintiff has no limitations in her

exposure to noise or vibration. (Tr. 217-224). 

1. Whether the ALJ erred in failing to give

substantial weight to the opinions of her

treating dermatologist. 

Plaintiff raises a single issue in her appeal. Plaintiff

contends that the ALJ committed reversible error in failing to give

substantial weight to the opinions of her treating dermatologist,

and relying instead on a non-examining state agency assessment. 

Defendant counters that while the ALJ noted that the state agency

assessment was consistent with the record as a whole, his decision

was based on his review of the entire record, and primarily on the

findings in Dr. Sami’s medical reports. Defendant further argues

that the ALJ properly accorded Dr. Sami’s opinions only partial

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 16 of 23
17

weight because the extent of the limitations expressed in his

opinions was not supported by other evidence of record, including

his own treatment notes.

 With regard to the assessments, the ALJ stated as follows:

I give substantial weight to the state agency assessment,

which reflects that the claimant is limited to light work

with restrictions against climbing, working around

hazardous machinery and heights, and exposure to

environmental irritants. . . . The conclusions are well

supported by the clinical examinations and testing, as

discussed above, and are generally consistent with the

record as a whole.

I give only partial weight to the residual functional

capacity assessments completed by Dr. Sami. . . . His

hand-written comments are not entirely clear, but seem to

suggest that the stated limitations apply only during

exacerbations of the claimant’s skin disorder. In any

case, according to Dr. Sami’s progress records . . . ,

the claimant’s skin condition has remained under good

control as long as she is compliant with his treatment

regimen and recommendations, and there is no reason to

suppose that she has exacerbations of such frequency or

severity that work would be precluded.

(Tr. 15). 

Case law provides that the opinion of a treating physician

“must be given substantial or considerable weight unless ‘good

cause’ is shown to the contrary.” “Good cause" exists where: 1)

the opinion was not bolstered by the evidence; 2) the evidence

supported a contrary finding; or 3) opinion was conclusory or

inconsistent with the doctor's own medical records. Phillips v.

Barnhart, 357 F.3d 1232, 1340-41 (llth Cir. 2004); See also Lewis

v. Callahan, 125 F.3d 1436, 1439-1441 (11th Cir. 1997); Edwards v.

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 17 of 23
23See also Blake v. Massanari, 2001 WL 530697, *10 n.4 (S.D.

Ala. Apr. 26, 2001); 20 C.F.R. § 404.1527(d)(2). The Eleventh

Circuit has repeatedly made clear that the opinion of a treating

physician must be given substantial weight unless good cause is

shown for its rejection. See, e.g., Lamb v. Bowen, 847 F.2d 698,

703 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 1000 (11th

Cir. 1987); Sharfarz v. Bowen, 825 F.2d 278, 279-80 (11th Cir.

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

McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987); MacGregor

v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); Wilson v.

Heckler, 734 F.2d 513, 518 (11th Cir. 1984); and 20 C.F.R. §

18

Sullivan, 937 F.2d 580, 583 (11th Cir. 1991); Sabo v. Commissioner

of Social Security, 955 F. Supp. 1456, 1462 (M.D. Fla. 1996); and

20 C.F.R. § 404.1527(d). See also Johnson v. Barnhart, 2005 WL

1414406, *2 (11th Cir. Jun. 17, 2005); Wind v. Barnhart, 2005 WL

1317040, *6 (11th Cir. Jun. 2, 2005) (citing to Crawford v. Comm'r

of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)).

Generally, an ALJ commits reversible error where he fails to

articulate the reason for giving less weight to the opinion of a

treating physician. MacGregor v.Bowen, 786 F. 2d 1050, 1053 (llth

Cir. 1986); Crawford v. Comm’r of Soc. Sec., 363 F. 3d 1155, 1159

(llth Cir. 2004)(per curiam)(the ALJ must accord substantial or

considerable weight to opinion of treating physician unless “good

cause” is shown to the contrary.). Of course, it is the ALJ’s

duty, as finder of fact, to choose between conflicting evidence and

he may reject the opinion of any physician when the evidence

supports a finding to the contrary. Wind, 2005 WL 1317040, *6.

(citing to Landry v. Heckler, 782 F.2d 1551, 1554 (11th Cir. 1986)

and Bloodsworth v. Bowen, 703 F.2d 1233, 1240 (11th Cir. 1983)).23

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 18 of 23
404.1527(d)(2).

19

Based upon a careful review of the record, the undersigned

finds that substantial evidence supports the ALJ’s decision not to

assign controlling weight to the opinions of Dr. Sami. In his

assessment dated November 25, 2008, Dr. Sami opined that Plaintiff

can stand one to four hours in a workday, can sit two to four hours

in a workday, can occasionally lift five pounds, and can work four

hours a day. (Tr. 247). Dr. Sami also opined that Plaintiff would

need to elevate her legs occasionally during an eight hour workday,

and that she is likely to miss two days per month due to her

condition. (Tr. 251). These opinions of Dr. Sami are not

supported by his treatment records. A review of Dr. Sami’s

treatment notes reflect that while Plaintiff had eruptive

psoriasis over most of her body when she began treatment with Dr.

Sami in March 2007, she experienced substantial improvement once

placed on the proper medication. Plaintiff was initially

prescribed methotrexate; however, that medication was discontinued

when her liver function tests were elevated. In April 2007, Dr.

Sami noted that Plaintiff had been prescribed prednisone, and that

she experienced “significant improvement,” and reported no new

areas of involvement. (Tr. 189, 194). Later that month, the

prednisone dosage was decreased, the methotrexate was resumed, and

Plaintiff was advised not to consume any alcohol. (Tr. 189).

Plaintiff’s methotrexate was again discontinued in early May 2007

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 19 of 23
20

when she failed to take it as prescribed and experienced mildly

elevated liver function. (Tr. 188). By June 2007, Dr. Sami

observed that Plaintiff was doing very well on Prednisone and

methotrexate, that she had no new areas of involvement and that of

the previous areas were healed. Dr. Sami noted that Plaintiff

reported not consuming any form of tobacco, which he thought was

the possible culprit for her previous eruption. (Tr. 243).

Dr. Sami’s treatment notes for 2008 also reflect that

Plaintiff’s condition was under control as long as she took her

medication as prescribed. In June 2008, Plaintiff reported an

eruption of lesions and that she had been out of her medication for

approximately one month. Plaintiff was restarted on her

medications, and the notes reflect that she tolerated the

medications well. (Tr. 237-238). In fact, the records reflect that

by August 2008, Dr. Sami observed that Plaintiff had cleared up

well, and that she was tolerating her medications. (Tr. 233).

Indeed, the last treatment notes in the record, dated March 31,

2009, reflect that Plaintiff was still doing well on her mediation,

and that she had no new exacerbation. These treatment records are

in conflict with and do not support the limitations imposed by Dr.

Sami in his assessments. Accordingly, the ALJ did not err in

concluding that the opinions contained in Dr. Sami’s assessments

were not entitled to substantial weight.

Plaintiff also argues that the ALJ erred in relying on the

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 20 of 23
24(Titles II and XVI: Consideration of Administrative

Findings of Fact by State Agency Medical and Psychological

Consultants and Other Program Physicians and Psychologists at the

Administrative Law Judge and Appeals Council Levels of

Administrative Review; Medical Equivalence (“SSR 96-6p”))

21

state agency assessment to find that she can engage in light work.

As noted supra, the ALJ gave substantial weight to the state agency

assessment which reflects that Plaintiff can perform light work.

Social Security Ruling 96-6p24 provides that findings of fact made

by State agency medical consultants regarding the nature and

severity of an individual's impairment(s) must be treated as expert

opinion evidence of non-examining sources at the administrative law

judge and Appeals Council levels of administrative review. The

Ruling also provides that the medical opinions of such consultants

must be considered, and that "State agency medical and

psychological consultants are highly qualified physicians and

psychologists who are experts in the evaluation of the medical

issues in disability claims under the Act." 20 C.F.R. §

404.1527(f). A review of the record in this case does not

establish that Kimberly White, the person who completed the RFC

assessment, is a medical consultant whose opinion qualifies as a

medical source opinion. In fact, the Initial Determination form,

dated April 20, 2007, is signed by Kimberly White, and identifies

her as a “SDM”. (Tr. 41). “[A] SDM is not a medical professional

of any stripe, and a finding from such an individual is entitled to

no weight as a medical opinion, or to consideration as evidence

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 21 of 23
25In Bolton, the Court noted that the Commissioner had

represented to the Court that the Agency has been conducting a

test in Florida, among other states, involving the use of a

single decision maker who makes the initial disability

determination without requiring the signature of a medical

consultant. 

22

from other non-medical sources.” Bolton v. Astrue25, 2008 U.S. Dist.

LEXIS 38568 (M.D. Fla. May 12, 2008)(quoting Velasquez v. Astrue,

2008 U.S. Dist. LEXIS 64743 (D.C. Colo., Mar. 20, 2008)(internal

quotation marks omitted.); Casey v. Astrue, 2008 U.S. Dist. LEXIS

47515 (S.D. Ala. June 19, 2008)( an RFC assessment completed by a

disability specialist is entitled to no weight); Hall v. Astrue,

2007 U.S. Dist. LEXIS 95776 (S.D. Ala. Nov. 7, 2007) (holding that

the opinion of a disability examiner “simply does not supply the

substantial evidence needed to support the ALJ's determination”.)

Because the ALJ based his RFC assessment on the opinion of a

disability specialist, as opposed to an acceptable medical source,

the ALJ’s finding regarding Plaintiff’s RFC is not supported by

substantial evidence. Accordingly, this case must be remanded.

Upon remand, a medical source should be consulted to assist the ALJ

in determining Plaintiff’s RFC assessment.

V. Conclusion

For the reasons set forth, and upon careful consideration of

the administrative record and memoranda of the parties, the

decision of the Commissioner of Social Security, denying

Plaintiff’s claim for disability insurance benefits and

Case 2:09-cv-00449-B Document 18 Filed 04/21/10 Page 22 of 23
23

supplemental security income, is due to be REVERSED and REMANDED.

 DONE this 20th day of April, 2010. 

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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