REPORT and RECOMMENDATION

KRISTI D. LEE, United States Magistrate Judge.

The Plaintiff brings this action under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability and disability insurance benefits.

This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Oral argument was held on July 12, 2000. Upon consideration of the administrative record, memoranda of the parties and oral argument, it is recommended that the decision of the Commissioner be affirmed.

I. Issues on Appeal .

The Plaintiff presents the following issues on appeal:

(1) The Appeals Council's failure to properly consider the new evidence submitted to it is an error of law and justifies remand for appropriate consideration.

(2) Plaintiff's counsel was inadequate in failing to properly file an appeal with the Appeals Council and in failing to object to the vocational expert.

(3) The ALJ failed to appropriately consider the subjective complaints of side effects from medication including drowsiness.

(4) The ALJ failed to appropriately consider the treating physician's opinion in regard to pain.

Plaintiff was born July 11, 1948 (Tr. 68) and was forty-eight years old at the hearing on September 19, 1996. She completed the eighth grade and obtained a GED in 1974 (Tr. 137). She has past relevant work as a chemical mixer formulator (Tr. 41). Plaintiffs earnings record shows she was insured for disability purposes at the alleged date of onset, March 15, 1995, and she continues to be insured until December 31, 2000 (Tr. 24, 111-113).

III. Procedural History

Plaintiff filed an application for a period of disability and disability insurance benefits on October 13, 1995 alleging an onset date of March 15, 1995, due to bilateral carpal tunnel syndrome, bursitis, bilateral patella pain syndrome, cervical radiculitis, side effects of medication, and daytime drowsiness due to inability to sleep at night because of pain (Tr. 41-58, 68-71, 114, 116-117, 122, 124, 133-136). Her application was denied initially, and on reconsideration (Tr. 72, 88). On March 18, 1996, Plaintiff filed a request for a hearing before an administrative law judge (ALJ) (Tr. 109). A hearing was held on September 19, 1996 and present were the Plaintiff, her counsel, and a vocational expert (VE) (Tr. 455). The ALJ issued a decision denying the Plaintiff's claim on December 5, 1996 (Tr. 13-28). The ALJ found Plaintiff could not perform her past relevant work but she retained the residual functional capacity to perform sedentary work with a limitation upon the repetitive use of her wrists (Tr. 22). The VE identified jobs Plaintiff could perform, including television rental clerk, hospital sitter, ticket seller, self-serve gas station attendant, welcomer/greeter/hostess, and usher/ticket taker (Tr. 23-24, 58-67).

The Appeals Council (AC) considered additional evidence Plaintiff submitted, but concluded the additional evidence did not provide a basis to change the ALJ'S decision. The AC denied review on May 19, 1999, making the ALJ decision the final agency decision (Tr. 5-6). See 20 C.F.R. § 404.981 (1999).

IV. Decision of the ALJ

The ALJ found Plaintiff had not engaged in substantial gainful activity since March 15, 1995, her alleged onset date (Tr. 24). The ALJ found the medical evidence established Plaintiff had severe" impairments of bilateral carpal tunnel syndrome and "non-severe" impairments of depression and feet and leg problems. However she had no impairment, or combination of impairments, which met or equaled a listed impairment (Tr. 21, 24). The ALJ found that the Plaintiff had the residual functional capacity to perform sedentary work with limitation on the repetitive use of her wrists, but her residual functional capacity precluded the Plaintiff from returning to her past relevant work (Tr. 22-23).

The ALJ received testimony at the hearing from a vocational expert (VE) based upon a hypothetical individual who was 48 years old, with a general education diploma, with Plaintiffs past relevant work experience, and was limited to sedentary work with no forceful or repetitive motions with the upper extremities. The ALJ found that the VE testified such an individual could not do Plaintiffs past relevant work, but could perform other jobs existing in significant numbers in the regional and national economies (Tr. 23).

The ALJ found that the Commissioner met the burden of proving that there were jobs in the national economy which the Plaintiff could perform based upon the testimony of the VE that the hypothetical person could perform the following jobs: "television rental clerk," with 50 jobs in the regional economy, 200 jobs in Alabama, and 12, 000 jobs in the national economy; "self-serve gas station attendant," with 60 jobs in the regional economy, 300 jobs in Alabama, and 10, 000 jobs in the national economy; "hospital sitter," with 200 jobs in the regional economy, 800 jobs in Alabama, and 20, 000 jobs in the national economy; "ticket seller," with 80 jobs in the regional economy, 300 jobs in Alabama, and 20, 000 jobs in the national economy; "welcomer/greeter/hostess," with 100 jobs in the regional economy, 500 jobs in Alabama, and 18, 000 jobs in the national economy; and "usher/ticket taker," of which 100 exist in the regional economy, 400 in Alabama and 12, 000 in the national economy. The VE testified there were about 325, 000 jobs in the national economy an individual with the given hypothetical vocational profile could perform (Tr. 23-24, 58-67).

V. Standard of Review .

In reviewing claims brought under the Act, this Court's role is a limited one. The 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), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). 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." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we 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). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). 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).

VI. Statement of the Law

An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must 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 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 and 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 on order to be found disabled. Jones v. Apfel 190 F.3d 1224, 1228 (11th Cir. 1999); Powell o/b/o Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir. 1985); Ambers v. Heckler, 736 F.2d 1467, 1469 (11th Cir. 1984) see also Hale v. Brown, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).

VII. Discussion A. Plaintiff's Testimony

Plaintiff testified she worked as a chemical mixer formulator, which required constant pushing and pulling with her hands (Tr. 41). She injured her right elbow, shoulder, and neck while working on March 14, 1995, and wears a brace prescribed by her physician (Tr. 41-42). She is right handed (Tr. 43). She stated that she experienced numbness, could not bend her thumb or grip with her right hand (Tr. 42-44). She stated that she was in constant, toothache-like pain which was more severe at night, but sometimes severe during the day (Tr. 43). When severe, the pain interfered with her ability to concentrate (Tr. 43-44). She stated that her oral medications take from one hour to one-and-a-half hour to work and she also used a topical cream pain medication (Tr. 44) She testified that the medications made her sleepy and drowsy and sometimes she slept during the day, and would lie down about half the day (Tr. 51-52). Plaintiff testified her main problem was with her right arm, neck and back (Tr. 53). She also had constant back pain and problems with her feet and legs (Tr. 46).

Plaintiff estimated she could stand for 5-20 minutes, and could not walk because of her feet. She could not sit long because of back pain, and could not reach with her right arm. Plaintiff estimated she could probably lift a couple of pounds with her right hand, and 5 to 10 pounds with her left hand. She had problems bending and stooping (Tr. 43-44).

Plaintiff testified that she was depressed and took Zoloft and Prozac which helped somewhat (Tr. 47-48). Plaintiff stated that she cried, was angered a lot, had trouble sleeping, and problems staying focused and concentrating (Tr. 49-50). Plaintiff testified she did not go anywhere and did not visit (Tr. 49). On a good day she tried to straighten up the house, but her daughter-in-law, who visits daily, did most of the house keeping (Tr. 50). Plaintiff shopped for groceries with her husband on weekends. She testified that she could not write out a grocery list, turn a doorknob, or button a shirt. but she could sign her name (Tr. 53-54). Plaintiff did laundry, but her daughter-in-law folded the clothing and put it away (Tr. 55). She could cook on top of the stove, but not in the oven (Tr. 55).

B. Medical Evidence

On May 4, 1994, the Plaintiff underwent surgery on her right hand for carpal tunnel release (Tr. 148-153). On June 13, 1994, James W. Green, M.D., released Plaintiff to return to work (Tr. 180). On October 17, 1994, she complained of some volar pain running along the base of the thumb and into the volar aspects of her forearm (Tr. 179).

On October 26, 1994, a nerve conduction study was performed by W. Shepherd Fleet, M.D., neurologist. He commented that she had normal routine nerve conduction of her arms and normal fraction, but her palmar studies indicated mild bilateral carpal tunnel syndrome with the right wrist more affected than her left (Tr. 156-157).

Physical therapy began in January 17, 1995. At that time her left hand was reported to be within functional limits (Tr. 446-447). Tests given on January 25, 1995, indicated Plaintiffs right hand grip was between 40 and 26 pounds (Tr. 444). By February 9, 1995, her physical therapist reported Plaintiffs range of motion was within functional limits, with the exception of wrist flexion, and she continued to have pain at the end range of each motion (Tr. 442). On June 20, 1995, Dr. Green stated Plaintiff still complained of pain, but it was so vague it was hard for him to pinpoint the problem (Tr. 177). By December 26, 1995, Plaintiff was independent with therapeutic exercises after discharge from physical therapy (Tr. 432).

On December 13, 1995, she presented to Ben H. Freeman, M.D., her treating orthopedic surgeon, with pain in her right shoulder girdle, the lateral epicondylar area of her right elbow, and with minimal symptoms at the first dorsal extensor compartment of her wrist (Tr. 191). Dr. Freeman diagnosed fibrositis (Tr. 191). In a letter, dated December 28, 1995. Dr. Freeman indicated he did not think Plaintiff had "any permanent impairment", and recommended avoidance of repetitive motion with the right upper extremity (Tr. 189).

On March 18, 1996, Dr. Freeman, wrote Plaintiff did not have a permanent anatomic impairment and opined she had a 3% loss of use of her upper right extremity. He noted that his impression was accumulative trauma disorder which should "improve considerably" if the Plaintiff avoided "repetitive motion activities." He restricted her to light work, precluded from lifting more than 20 pounds and without repetitive motion with her right extremity (Tr. 494).

On April 23, 1996, Plaintiff was examined for the first time on complaints of bilateral ankle and knee pain. She was examined by one of the physicians at Old Shell Orthopaedic Associates, P.C. The examiner noted that she was "vague as to when it started, but she [thought] it [was] around the middle or end of January" (Tr. 494). She was diagnosed with patellofemoral pain syndrome, or possible chondromalacia, chronic mild ankle instability, left ankle, with residual pain; and vague pain, right ankle. The examiner noted some mild crepitation but full range of motion in her knees. The examiner noted some swelling and tenderness in the ankles The record indicates that x-rays of her knees and anldes were normal. Physical therapy was recommended to rehabilitate her knees and ankles (Tr. 494).

On May 6, 1996, Dr. Green re-examined Plaintiff and noted she reported depression (Tr. 479-480). He noted that her right arm remained in a splint prescribed by Dr. Freeman. Dr. Green found some tenderness over Plaintiffs forearm and elbow, and noted that "she may have some type of fibromyositis, nonspecific," but that it was "hard to know what [was] really ailing" the Plaintiff since she was "possibly chronically depressed" (Tr. 479-480). On September 4, 1996, he stated Plaintiffs problems were somewhat of an enigma because her reported "pain seemed to be moving more proximal than it used to be." He noted that he could again "elicit some discomfort over the radial aspect of her forearm" but that there was "no clear indication of an entrapment problem." He noted that further evaluation of the elbow and shoulder were indicated and that Dr. Fleet had ordered an MRI and nerve conduction studies (Tr. 477-479). He also stated that Dr. Fleet could better ascertain her impairment rating (Tr. 477).

On May 8, 1996, Mark McCutcheon, M.D., her treating physician, concluded Plaintiff could not lift over 10 pounds, could stand for 6-8 hours and sit for 5-8 hours during an 8-hour work day. She could do repetitive motions with her left hand, but not with her right. She could use her left hand for grasping, fine manipulation, and pushing and pulling. She had no restriction on use of foot controls, could occasionally bend, stoop, twist and squat, but should not climb or reach above her shoulder with her right arm (Tr. 487).

On August 21, 1996, the IvIRI of her cervical spine ordered by Dr. Fleet showed posterior marginal osteophyte with small bulging of intervertebral disc at the C4-5, C5-6 and C6-7 levels without signs of herniation (Tr. 500). An X-ray of her cervical spine ordered by Dr. Fleet showed pressure upon the right C5-6 intervertebral nerve root canal by degeneration of the joint of luschka and small marginal osteophytes at the superior plate of C6 posteriorly (Tr. 497). X-rays of Plaintiffs heels ordered by Dr. Fleet showed no abnormalities (Tr. 498-499).

C. Medical Evidence Presented After the ALJ Decision

On January 2, 1997, Dr. Fleet summarily stated that the Plaintiff was "100% disabled from the standpoint of Social Security (Tr. 535). Also, on January 6, 1997, nerve conduction studies evaluated by Dr. Fleet indicated that the Plaintiff had bilateral carpal tunnel syndrome (Tr. 536-537).

On January 9, 1997, Dr. McCutcheon wrote to the Social Security Administration in regard to the Plaintiff. He stated that because of marked disability in her right wrist and arm, increasing symptoms of carpal tunnel in her left wrist, pain, limited motion, and her report of lack of sleep due to discomfort, he doubted she could work six to eight hours at a job at that time (Tr. 538).

From February 20, 1997 through June 8, 1998, Dr. Fleet continued to treat the Plaintiff for her carpal tunnel and her cervical radiculitis (Tr. 509-533). He prescribed and adjusted her pain, neurological and sedative medications, noted her continued complaints of pain and difficulty sleeping with notations of some episodes of pain relief and adequate sleep. He also noted compliance and non-compliance with medication and instructions, her decision against surgery to improve her carpal tunnel syndrome, performed additional testing and referred her to an anesthesiologist. On May 13, 1997 and June 13, 1997, Michael P. Ederer D.O. of Coastal Anesthesia, P.C. performed cervical epidural blocks on the Plaintiff (Tr. 527-528). The Plaintiff reported some relief to Dr. Fleet (Tr. 529-530). On January 8, 1998, Dr. Fleet noted that Plaintiff had not improved in the years that he had treated her for carpal tunnel syndrome and cervical radiculitis (Tr. 509-533).

On June 11, 1998, Dr. Fleet prepared a physical capacities evaluation wherein he found that the Plaintiff could sit, stand or walk for one hour at a time each, could sit for four hours, stand for three hours and walk for three hours in an eight hour day. She could continuously lift and carry up to five pounds, frequently lift and carry up to ten pounds, occasionally lift and carry up to twenty pounds, but never lift or carry any item heavier. He found her unrestricted in the repetitive use of both of her hands for simple grasping, but restricted in regard to pushing and pulling of arm controls and fine manipulation. He found her unlimited in repetitive use of her feet and legs. He noted she could occasionally bend, squat and reach, but never crawl or climb. He found her totally restricted from activities involving unprotected heights, moderately restricted in activities involving moving machinery and driving automobiles, mildly restricted in activities involving exposure to marked changes in temperature and humidity and not restricted in activities involving exposure to dust, fumes and gases (Tr. 505).

On June 11, 1998, Dr. Fleet completed a clinical assessment of pain form wherein he found the Plaintiffs pain present to such an extent that she would be distracted from adequate performance of daily activities, her pain would greatly increase upon physical activity to the extent that it would cause distraction from task or total abandonment of task, and he found that her medication caused some limitations but not to such a degree as to cause serious problems (Tr. 506-507).

C. Issues on Appeal

1) Appeals Council Erred In Failing to Consider New Evidence

Plaintiff asserts that the AC's failure to properly consider the new evidence submitted to it is an error of law and justifies remand for appropriate consideration. Specifically, Plaintiff argues that the "new evidence" is material and there is good cause for failing to present the evidence to the ALJ. The alleged new evidence consists of a letter from Dr. McCutcheon dated January 9, 1997, one month after the ALJ entered his decision. The letter stated as follows:

In December, I saw Virginia here at our Ciba Plant in McIntosh. She advised me that her Social Security Disability Benefits Application had been denied. She thought it was related to a form that I had filled out in May 1996 for CUNA Neutral Insurance Group. The form that I filled out said that she could do sedentary work, occasional lifting and carrying small, light objects and that she was unable to lift ten pounds. Also in that report, in an eight hour day, I stated she would be able to work 6 to 8 hours. With her most recent exam, she still has marked disability in her right wrist and arm with increasing symptoms of carpal tunnel in her left wrist. Due to her pain, limited motion, medications, and as she says — lack of sleep at times due to discomfort, I seriously doubt that she could work 6 to 8 hours at a job at this time. This certainly might be possible in the future if her condition improves. Her condition has not improved in over a year and seems to have gotten worse, even with rest.

I hope this information helps you return a favorable decision for Virginia's social security disability.

(Tr. 538). Also, on or about January 29, 1997, Plaintiff provided the AC with additional medical evidence from Dr. Fleet which consisted of the following one-sentence note, dated January 2, 1997: "This patient is 100% disabled from the standpoint of Social Security" (Tr. 535). Also included were the results of a nerve conduction study, dated January 6, 1997, and signed by Dr. Fleet, showing a diagnosis of bilateral carpal tunnel syndrome (Tr. 536-537). On or about June 12, 1998, Plaintiff submitted a physical capacities evaluation form and a clinical assessment of pain form, both dated and signed by Dr. Fleet on June 11, 1998 (Tr. 505-507), a note on a prescription pad dated June 8, 1998 (Tr. 533), and treatment notes from Dr. Fleet, and from Michael P. Ederer, D.O., for the period May 5, 1997-June 11, 1998 (Tr. 509-532).

In Falge v. Apfel, 150 F.3d 1320 (11th Cir. 1998), the Court established this rule:

"[W]hen the Appeals Council has denied review, we will look only to the evidence actually presented to the ALJ in determining whether the ALJ's decision is supported by substantial evidence."

However, the Court in Falge enunciated two exceptions to the general rule. The first exception is for newly discovered evidence. The Court in Falge citing 42 U.S.C. § 405(g), outlined this exception:

To succeed on a claim that remand is appropriate, (Plaintiff) would have to show that (1) new, noncumulative evidence exists, (2) the evidence is material such that a reasonable possibility exists that the new evidence would change the administrative result, and (3) good cause exists for the failure to submit the evidence at the appropriate administrative level.

The plaintiff obviously sought additional evidence because she had not received a favorable opinion from the ALJ. Dr. McCutcheon, whose first opinion in May 1996, supports the ALJ decision, states in his January 1997 letter that he doubted she could work at that time. This second letter was not obtained to clarify or expand on a previous opinion, rather it simply concludes that at a time after the ALJ's determination was made that Dr. McCutcheon became doubtful that the plaintiff could work a full day. The letter is arguably new and non-cumulative in that Dr. McCutcheon now assert opinions in regard to the Plaintiffs ability which he did not assert in the prior evidence before the ALJ. However, the evidence is not material or probative, in that it does not create a reasonable possibility that the administrative outcome would be changed. The ALJ relied upon Dr. McCutcheon's statement on May 1996 and upon the assessments of Dr. Green, Dr. Freeman and Dr. Fleet, as well as the entire administrative record, including Plaintiffs medical records and testimony. It is not likely that Dr. McCutcheon' s single equivocal opinion of disability which is not supported by any new or additional medical evidence or objective medical tests would change the administrative results. Notably, Dr. McCutcheon does not say that his opinion in May 1996, was incorrect or misconstrued by the ALJ.

The new evidence submitted from Dr. Fleet is not relevant to the time period considered by the ALJ and is therefore not material. Plaintiff candidly admits this in her brief. (Doc. 17 p. 6). The new evidence submitted from Dr. Fleet dated from May of 1997 through June of 1998 may, at best, indicate a worsening of condition, or at least, further treatment for her chronic impairments, but are not relevant to the time period before the ALJ and therefore is not material. Further, even if Dr. Fleet's conclusory opinion on in January 1997 related to the pertinent period of time, it is not likely that Dr. Fleet's opinion in regard to 100% disability would change the administrative results. A medical opinion that the Plaintiff is disabled or unable to work is not entitled to any special weight because that issue is reserved for the Commissioner. See 20 C.F.R. S 404.1527(e) (1999). (We are responsible for making the determination or decision about whether you meet the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that support a medical source's statement that you are disabled. A statement by a medical source that you are "disabled" or "unable to work" does not mean that we will determine that you are disabled.) See also Wheeler v. Heckler 784 F.2d 1073, 1075 (11th Cir. 1986) (The weight afforded a physician's conclusory statements depends upon the extent to which they are supported by clinical or laboratory findings and are consistent with other evidence as to claimant's impairments). The Eleventh Circuit has held that a treating physician's opinion regarding disability may be disregarded by the ALJ if it is unsupported by medical evidence or is wholly conclusory. Edwards v. Sullivan, 937 F.2d 580 (11th Cir. 1991) ( citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987)).

The Court in Falge provided a second exception to the general rule which would allow consideration of evidence submitted only to the AC. This second exception occurs when the AC's decision not to review the new evidence is challenged as error of law on appeal. Falge, 150 F.3d at 1323. Obviously the reviewing court will have to review the new evidence to determine if the Appeals Council erred in not reviewing the case in light of the new evidence. The court noted the regulations, which provide,

The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the ALJ hearing decision. It will then review the case if it finds that the ALJ's actions, findings, or conclusion is contrary to the weight of the evidence currently of record.

The AC made all of the new medical evidence part of the record and considered it (Tr. 5-6). The AC appropriately denied review, since as outlined above, the new evidence was not material in that it did not relate to the time period before the ALJ decision and as such did not provide a basis for changing the ALJ's decision (Tr. 5-6). Since neither exception in Falge applies, the general rule governs this case — only the evidence actually presented to the ALJ is considered in determining whether the ALJ's decision is supported by substantial evidence.

Plaintiff also argues that the AC's summary statement that it has "considered the additional evidence identified on the attached Order of the Appeals Council but concluded that this evidence does not provide a basis for changing the Administrative Law Judge's decision" (Tr.5) does not provide a reviewing court with a sufficient basis to determine whether the ultimate decision to deny review was based on substantial evidence. Plaintiff has cited Martin v. Bowen, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing Gibson v. Heckler, 779 F.2d 619, 622 (11th Cir. 1986); Bowen v. Heckler, 748 F.2d 629, 635-36 (11th Cir. 1984)) for the proposition that the "failure of [the Commissioner] to provide the reviewing court with sufficient basis for determination that proper legal principles have been followed mandates reversal." However, review of Martin indicates that the case addressed the sufficiency of the decision of the ALJ and not the sufficiency of a decision made by the AC in denying review. The adequacy of the review is not initially determined by the statements made in the AC letter to the Plaintiff. The adequacy of review by the AC is initially determined by this court reviewing the new evidence submitted to the AC to see if it is new and material and relates to the period before the ALJ. The undersigned finds that after review of the new evidence, as herein discussed, the AC did not err in denying review since the evidence was not material.

2) inadequacy of Counsel

Plaintiff argues that her counsel at the administrative hearing and on appeal was inadequate in failing to properly file an appeal and in failing to object to the VE. The Eleventh Circuit has not established a right to adequate counsel in a social security administrative hearing. The Constitution does not grant a right to effective assistance of counsel in social security cases. Banta v. Chater, 94 F.3d 655 (10th Cir. 1996) ("There is no constitutional or statutory right to competent counsel in Social Security proceedings."); Smith v. Secretary of Health, Educ. Welfare, 587 F.2d 857, 860 (7th Cir. 1978) (no constitutional right to counsel); see also Janvier v. United States, 793 F.2d 449, 451 (2d Cir. 1986) (acknowledging that the Sixth Amendment right to counsel attaches only to criminal proceedings); Jeralds v. Richardson, 445 F.2d 36, 39 (7th Cir. 1971) (although relevant statutes permit representation at administrative disability hearing, citing 42 U.S.C. S 406, Commissioner is not required to provide counsel). Further, there is generally no right to counsel in civil proceedings. If there is a showing of "clear prejudice or unfairness," ineffective representation might require a remand. Jeralds, 445 F.2d at 39; see also Arms v. Gardner, 353 F.2d 197, 199 (6th Cir. 1965) (remanding where claimant did not receive adequate representation). However, the undersigned finds that the Plaintiff has not shown "clear prejudice or unfairness" and this claim is without merit.

Plaintiff alleges the ALJ did not ask her prior counsel if he accepted the VE (Pl.'s Prop. Rep. Rec. 9) and that her prior counsel's failure to object to the qualifications of the VE in this case is proof of his incompetence (Pl.'s Prop. Rep. Rec. 10). However, a review of the hearing transcript shows that the ALJ asked counsel "can you stipulate that Dr. [Patric] Howley is qualified to testify as a vocational person?" (Tr. 40), and her attorney responded; "Yes, sir." (Tr. 40). Plaintiffs stipulation, and failure to object to the expert's qualifications, constitutes a waiver of her current challenge of the expert's qualifications. Also, review of the qualifications of the VE indicates that he met the requirements set forth in the regulations for qualifying as an expert witness.

Plaintiff alleged that counsel failed to brief the AC when he submitted additional medical evidence. However, the undersigned has evaluated the new evidence and determined that it was not likely to change the administrative outcome. Therefore, there is no clear prejudice to the Plaintiff caused by counsel's failure to brief the AC.

Plaintiff also alleges that counsel failed to object to improper hypothetical questions which did not include all of Plaintiffs impairments, failed to make a proper record in regard to certain requirements of reaching, handling and fingering of the occupations identified and whether those occupations were available on a full-time basis, and failed to question the VE in regard to the actual numbers of the jobs available because the information was taken by the VE from an inadequate source. However, the undersigned finds no merit to these allegations. The hypothetical questions as presented to the VE properly identified the limitations which were supported by substantial evidence in the record. While Plaintiffs counsel may not have inquired into certain matters which are more obvious in hindsight, his failure to question in regard to certain physical limitations, whether the jobs were full or part-time, and the source of the VE's opinion do not clearly prejudice the Plaintiff. The third hypothetical posed to the VE included Dr. McCutcheon's limitation on her ability for grasping, fine manipulation and pushing and pulling (Tr. 62-63, 487). Dr. McCutcheon found that she could not use her right hand for repetitive motion, single grasping, fine manipulation or pushing and pulling. He found that she could use her left hand for repetitive motion, single grasping, fine manipulation or pushing and pulling. The hypothetical also included her testimony that she could write her name or a note with her right hand, that she can grasp and hold small objects so long as it is not repetitive, and that she can use the right hand to assist the left hand (Tr. 62-63). After discussion of the hypothetical question, the VE reduced the number of jobs he found available in response to the first hypothetical, 750, 000, by fifty percent, or 325, 000 jobs. The VE identified a substantial number of jobs in the national economy which the Plaintiff could perform based upon her residual functional capacity as determined by the ALJ.

Additionally, the ALJ has a duty to fully and fairly develop the record whether or not the Plaintiff is represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). The record indicates that the ALJ fully and fairly developed the record and that the record contains substantial evidence to support the ALJ's findings.

3) ALJ Failed To Properly Consider Subjective Complaints

Plaintiff argues that the ALJ failed to appropriately consider her subjective complaint of medication side effects of drowsiness and sleepiness. The ALJ noted the Plaintiffs testimony that her medications made her sleepy and drowsy, caused her to sleep during the day, and sometimes for about half of the day (Tr. 19). The Plaintiff testified that her pain was severe four or five days a week, was more severe at night, but sometimes during the day (Tr. 43). She stated that her pain medication took one to one and one half hours to take effect (Tr. 44). Plaintiff testified that her depression caused trouble sleeping (Tr. 49). She also testified that all of her medications, except her stomach medicine, made her "kind of sleepy and drowsy mostly" (Tr. 51). She testified that after she took her Relafen in the morning and the afternoon she became "kind of drowsy" (Tr. 51-52). She testified as follows:

Well, I don't say it's all on account of the medication that I sleep during the day sometimes, but I don't sleep at night. You know, and then just during the day I just get so tired, you know. And sometimes, I, I seem like I could rest on the couch, you know, better than I can [in the bed].

(Tr. 52). She testified that, on average, she spent about half the day laying down (Tr. 52).

The ALJ noted that her subjective complaints must be considered in accordance with 20 C.F.R. § 404.1529, Social Security Ruling 96-3p Titles II and XVI: Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable Impairment Is Severe, MacGregor v. Bowen, 786 F.2d 1050 (11th Cir. 1986) and Hale, 831 F.2d 1007 (11th Cir. 1987). The ALJ also noted that functional and limiting effects were evaluated pursuant to Social Security Ruling 96-4p Titles II and XVI, Symptoms, Medically Determinable Physical and Mental Impairments, and Exertional and Nonexertional Limitations, and that the credibility of the Plaintiffs statements in regard to her symptoms and their functional effects were evaluated pursuant to Social Security Ruling 96-7p Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing The Credibility of an Individual's Statements (Tr. 21).

20 C.F.R. § 404.1529 requires an initial two-step process for evaluating subjective symptoms: First, the ALJ must consider whether there is an underlying medically determinable physical or mental impairment or impairments established by medically acceptable clinical and laboratory diagnostic techniques which could reasonably be expected to produce the individual's symptoms; Second, if such underlying physical or mental impairment or impairments have been found, the ALJ must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities. To do so, the ALJ must make a finding in regard to the credibility of the individual's testimony and statements based upon his evaluation of the entire case record. Any allegation of diminishment of the Plaintiffs capacity for basic work activities must be supported by the objective medical evidence and other evidence in the case record. The ALJ must also consider the following:

1. The individual's daily activities; 2. The location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.

The ALJ found that the Plaintiff had a medically determinable impairment of bilateral carpal tunnel syndrome which could reasonably be expected to cause pain (Tr. 21). He found her depression to be "non-severe" (Tr. 21). He found "no medically determinable physical or mental impairments which would reasonably be expected to give rise to [her] subjective complaints of feet and leg problems" and found her feet and leg problems to be "non-severe" (Tr. 21). In regard to her medication side effect of drowsiness and sleepiness, the ALJ found as follows:

My conclusion with regard to the claimant's residual functional capacity is in substantial agreement with Dr. McCutcheon's (sic) assessment of May 8, 1996 [(Tr. 487-488)]. However, I reject his conclusion regarding limitations resulting from side effects from medication and drowsiness. His conclusion is based on the claimant's subjective complaints which I find not to be credible. His assessment regarding drowsiness is also contrary to the claimant's own statement of February 9, 1995, when she denied that nocturnal pain interrupted her sleep [(Tr. 442)].

(Tr. 23).

On May 8, 1996, Dr. McCutcheon noted the Plaintiffs report that due to pain she could not sleep and got drowsy at work. He also noted her report of drowsiness at work when she used her pain medication (Tr. 488).

The medical records for her physical therapy following her carpal tunnel release indicate that on January 25, 1995, the Plaintiff reported an absence of nocturnal pain in her wrist for four nights, that she had pain on ulnar deviation but denied pain during rest (Tr. 444). On February 9, 1995, the Plaintiff stated that she did not have nocturnal pain which interrupted her sleep and that her pain had diminished to 3 or 4 out of a scale of 10 (Tr. 442). On February 21, 1995, she expressed concern that the pain may re-occur if she returned to her past work (Tr. 440). She stated "I have very little pain. It just gives out on me easily" and the therapist reported that she had the "greatest pain with supmation and pronation" (Tr. 440). Discharge from physical therapy was recommended (Tr. 441).

In her daily activities questionnaire of October 23, 1995, she stated that pain in her right arm up on her neck kept her awake most of the night. She stated that she took Lortab for the pain. She also stated that her condition kept her from working because she had so much pain she could not sleep nor pick up anything (Tr. 128-131).

In her daily activities questionnaire of January 12, 1996, the Plaintiff stated that she experienced pain in her neck, arm, wrist and knees which kept her awake at night. In response to the question as to what happened when she tried to work, she stated "I can't sleep.., stayed (sic) drowsy from medicine I take" (Tr. 120). In her pain questionnaire of January 12, 1996, she stated that her pain was constant, though relieved by medication for one to six hours and that her medication "keeps [her] drowsy" (Tr. 122).

The undersigned finds no error in the ALJ's analysis of the Plaintiffs subjective complaints of medication side effects. The Plaintiff states that she can not sleep because of her pain but also states that her pain medication makes her drowsy and sleepy. She has also testified that she sleeps about half of each day because she can not sleep at night. Her contradictory statements constitute substantial evidence upon which the ALJ could base his decision to discredit her testimony in regard to her subjective complaints of drowsiness and sleepiness. The decision in regard to Plaintiffs credibility is a function solely within the control of the Commissioner and not the courts. Grant v. Richardson 445 F.2d 656 (5th Cir. 1971). A clearly stated credibility finding will not be disturbed unless it is not supported by substantial evidence. MacGregor, 786 F.2d at 1054.

Further, the ALJ did not err in rejecting the notation of her treating physician, Dr. McCutcheon in regard to her medication side effects of drowsiness and sleepiness. (Tr. 488). If an ALJ rejects the opinion of a treating physician, the ALJ must give explicit, adequate reasons for so doing, and failure to do so results in the opinion being deemed accepted as true as a matter of law. Id. at 1053; Marbury v. Sullivan, 957 F.2d 837, 841 (11th Cir. 1992). Also, the ALJ may reject the opinion of the treating physician if it is not consistent with other evidence of record. "Even if a treating source's medical opinion is well-supported, controlling weight may not be given to the opinion unless it is also 'not inconsistent' with the other substantial evidence in the case record." Social Security Ruling 96-2p Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinion.) In this case the ALJ rejected a notation not an opinion. Dr. McCutcheon' s notation that plaintiff gets drowsy when she takes medication appears to be based on plaintiff's subjective complaints. Notably, Dr. McCutcheon does not give an opinion as to what limitations the drowsiness may cause and in fact in the same document where this is noted, Dr. McCutcheon states that plaintiff can stand/sit 6-8 hours a day and work a sedentary job.

4) ALJ Erred in Failing To Consider Physician's Opinion

The Plaintiff has argued that the ALJ failed to properly consider the treating physician's opinion in regard to her allegations of pain. The ALJ found the Plaintiffs subjective complaints and testimony in regard to her pain and limitations caused therefrom were not credible (Tr. 22). He discredited her statement that she could only stand for five to twenty minutes because of pain, with the opinion of her treating physician, Dr. McCutcheon, that she could stand or walk for six or eight hours in a day (Tr. 22). He also relied on the opinion of Dr. Green that she could return to her work after her carpal tunnel surgery in 1994 and his later statement in 1996 that her pain was enigmatic and seemed to change locations (Tr. 22).

The ALJ evaluated the Plaintiffs subjective complaints in accordance with 20 C.F.R. § 404.1529, SSR 96-3p, and MacGregor, 786 F.2d at 1054. The first step is to determine whether there is a medically determinable physical or mental impairment, which could reasonably be expected to produce Plaintiffs pain or other symptoms. If the criteria of the first step are met, the second step required an evaluation of the intensity, persistence and limiting effects resulting from Plaintiffs impairment(s). The second step of the evaluation required a finding as to the credibility of Plaintiffs statements regarding symptoms and the persistence, intensity and functional effects. SSR 96-7p. The ALJ noted that functional and limiting effects are evaluated as outlined in SSR 96-4p.

The ALJ found that the Plaintiff had a medically determinable physical impairment of bilateral carpal tunnel syndrome which could reasonably be expected to cause the Plaintiff to experience pain in her wrists (Tr. 21). The objective medical tests, x-rays. performed on her feet, ankles and knees indicated that they were normal with no impairment (Tr. 498, 499, 494). Examination of her knees and ankles indicated only mild crepitation and some tenderness and weakness and physical therapy was recommended (Tr. 494). The ALJ found no medically determinable physical or mental impairments which would reasonably be expected to give rise to Plaintiffs subjective complaints of feet and leg problems (Tr. 22).

The ALJ found Plaintiffs testimony that her back pain (as well as her feet and leg problems) limited her to standing for only five to twenty minutes, was not supported by objective medical evidence or by her treating physician's conclusions (Tr. 22). Dr. McCutcheon's assessment of May 8, 1996, concluded Plaintiff would be able to stand or walk for six to eight hours during an eight hour workday (Tr. 487). The ALJ found Dr. McCutcheon's opinion contrary to Plaintiffs testimony regarding her limitations, and that Dr. McCutcheon's opinion was supported by Dr. Green's findings. On June 13, 1994, Dr. Green noted Plaintiff could "resume her work at any time" (Tr. 180). More than two years later, on September 4, 1996, Dr. Green opined Plaintiffs problems were ". . . somewhat of an enigma . . . [her] pain seems to be moving more proximal than it used to be . . ." (Tr. 477). The MRI of her cervical spine revealed only small bulging but no herniation of the cervical discs though her x-ray had indicated some intrusion on the nerve root at C5-6 (Tr. 500). Further, Plaintiff has argued that Dr. McCutcheon did not treat her for her knee, ankle or foot problems and thus his opinion as to her ability to stand should not be given weight (Tr. 487-488). However, the report of the orthopaedic doctor who evaluated her knees and ankles indicates a courtesy copy was sent to Dr. McCutcheon (Tr. 494). These medical notes, and the absence of objective medical signs and findings, constitute substantial evidence in support of the ALJ's conclusion that Plaintiffs subjective complaints and testimony in regard to her pain were not credible (Tr. 22).

The ALJ found that the opinion of her treating source, Dr. McCutcheon, was entitled to controlling weight in regard to her exertional impairments but not as to her subjective complaint of drowsiness (Tr. 22-23) as discussed herein. The ALJ's conclusion in regard to Plaintiffs residual functional capacity was in substantial agreement with Dr. McCutcheon's assessment of May 8, 1996 (Tr. 487-488). Dr. McCutcheon concluded Plaintiff was not "totally disabled," but could not perform her last job or any other jobs available at the facility where she worked (Tr. 487-488).

Moreover, the ALJ noted that on March 18, 1996, Dr. Freeman, also a treating physician, and an orthopedic surgeon, concluded Plaintiff did not have a permanent anatomic impairment and opined she had only a 3% loss of use of her right upper extremity. Dr. Freeman concluded Plaintiff was restricted to light work, could lift no more than 20 pounds, and should not do repetitive motions with her upper extremities (Tr. 493). The residual functional capacity the ALJ established falls between those of her treating physicians and thus is supported by substantial evidence in the record because her treating physicians indicated she was precluded from her past work, but not from all work (Tr. 23).

If the ALJ decides not to credit a claimant's testimony as to pain, he must articulate explicit and adequate reasons for doing so. Foote v. Chater, 67 F.3d 1553, 1561-1562 (11th Cir. 1995). Further, 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 (11th Cir.), vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986). The undersigned finds that the ALJ gave adequate and explicit reasons for discrediting the Plaintiffs subjective complaints of disabling pain. Based upon the unremarkable medical findings of record in regard to her knees, ankles and feet, the opinions of her treating physician and her two orthopaedic specialists in regard to her back pain and bilateral carpal tunnel syndrome, the ALJ properly determined Plaintiffs subjective complaints of pain and functional limitations were credible only to the extent that she was limited to sedentary work without repetitive use of her wrists. The objective medical evidence of record, as described above, supports the ALJ's residual functional capacity finding and shows Plaintiff did not suffer from pain which would result in significant functional limitations at the time of the hearing before the ALJ.

V. Conclusion

For the reasons set forth, and upon consideration of the administrative record, the hearing decision, the memoranda of the parties, and oral argument, it is recommended that the decision of the Commissioner denying the Plaintiffs claim for disability insurance benefits be affirmed.

The attached sheet contains important information regarding objections to this report and recommendation.