Harlow v. Berryhill

Filing 18

MEMORANDUM OPINION AND ORDER that the Court AFFIRMS the Commissioner's decision. Signed by Honorable Judge Stephen Michael Doyle on 3/26/2019. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
KIMBERLY HARLOW,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Case No. 3:17-cv-727-SMD

MEMORANDUM OPINION AND ORDER
Kimberly Harlow (“Plaintiff”) applied for a period of disability and disability
insurance benefits under Title II of the Social Security Act (“the Act”) and Supplemental
Security Income under Title XVI alleging a disability date of August 29, 2013. (R. 25164). Plaintiff subsequently amended the alleged onset date to January 14, 2014. (R. 278).
The applications were denied on December 5, 2014. (R. 164-72). Plaintiff timely appealed
and requested a hearing. (R. 173-74). A hearing was held before the Administrative Law
Judge (“ALJ”) on April 1, 2016. (R. 244-45). The ALJ rendered an unfavorable decision
on September 29, 2016. (R. 7-30). Plaintiff timely requested review of the ALJ’s decision
by the Appeals Council. (R. 250). The Appeals Council denied Plaintiff’s request for
review. (R. 1-6). As a result, the ALJ’s decision became the final decision of the
Commissioner of Social Security (“Commissioner”).

Id.

Judicial review proceeds

pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c). Pursuant to 28 U.S.C. § 636(c),
both parties have consented to the conduct of all proceedings and entry of a final judgment

by the undersigned United States Magistrate Judge. Pl.’s Consent to Jurisdiction (Doc.
10); Def.’s Consent to Jurisdiction (Doc. 9). After careful scrutiny of the record and briefs,
for reasons herein explained, the Court concludes that the Commissioner’s decision is to
be AFFIRMED.
I. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). “The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the
Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla
— i.e., the evidence must do more than merely create a suspicion of the existence of a fact
and must include such relevant evidence as a reasonable person would accept as adequate
to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)); Foote, 67 F.3d at 1560 (citing Walden
v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the evidence preponderates against the Commissioner’s findings. Ellison v.
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Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)).
The Court must view the evidence as a whole, taking into account evidence favorable as
well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). The Court “may not decide facts anew, reweigh the
evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “must
defer to the Commissioner’s decision if it is supported by substantial evidence.” Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth, 703 F.2d at 1239).
The Court will reverse a Commissioner’s decision on review if the decision applies
incorrect law, or if the decision fails to provide the district court with sufficient reasoning
to determine that the Commissioner properly applied the law. Keeton v. Dep’t of Health
& Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v. Sullivan, 936
F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption that the Commissioner’s
conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991)
(quoting MacGregor, 786 F.2d at 1053).
II. STATUTORY AND REGULATORY FRAMEWORK
The Act’s general disability insurance benefits program (“DIB”) provides income
to individuals who are forced into involuntary, premature retirement, provided they are
both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a). The Act’s
Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general
public assistance measure providing an additional resource to the aged, blind, and disabled
to assure that their income does not fall below the poverty line. Eligibility for SSI is based
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upon proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C).
However, despite the fact they are separate programs, the law and regulations governing a
claim for DIB and a claim for SSI are identical. See Strickland v. Harris, 615 F.2d 1103,
1105-06 (5th Cir. 1980). Therefore, claims for DIB and SSI are treated identically for the
purpose of determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455,
1456 n.1 (11th Cir. 1986). Applicants under DIB and SSI must prove “disability” within
the meaning of the Act, which defines disability in virtually identical language for both
programs.

See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§

404.1505(a), 416.905(a). A person is entitled to disability benefits when the person is
unable 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), 1382c(a)(3)(A). A “physical or mental impairment”
is one resulting from “anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner employs a five-step, sequential evaluation process to determine
whether a claimant is entitled to benefits. See 20 C.F.R. §§ 404.1520, 416.920 (2010).
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
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(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through step four. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying for disability once they meet the burden of proof from step one through step
four. At step five, the burden shifts to the Commissioner, who must then show that there
are a significant number of jobs in the national economy that the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other evidence.
Id. It also can contain both exertional and non-exertional limitations. Id. at 1242-43. At
the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience
to determine if there are jobs available in the national economy that the claimant can
perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines
(“grids”) or hear testimony from a vocational expert (“VE”). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
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to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
III. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Plaintiff was forty-three years old as of the alleged onset date. (R. 280). Plaintiff
had a seventh-grade education and worked as taxi driver; a bartender, cook, and server; a
garment sorter; a retail clerk; and a factory inspector. (R. 311-19). Plaintiff ceased working
on September 21, 2011 but claimed a disability onset as of January 14, 2014. (R. 278,
311).
The ALJ considered Plaintiff’s claim pursuant to the five-step, sequential evaluation
process described above. (R. 11-12). At step one, the ALJ found that Plaintiff was not
gainfully employed since the alleged onset date. Id. At step two, the ALJ found that,
individually, Plaintiff’s impairments were non-severe, but, collectively, she had a
combination of medically determinable impairments that were “severe” within the meaning
of 20 C.F.R § 404.1520. Id. The ALJ found the Plaintiff had the following impairments:
obesity; chronic obstructive pulmonary disease (COPD) including asthma and bronchitis,
stable; minimal spondylosis and degenerative disc disease, lumbar spine; edema; history
of lack of control; gastroesophageal reflux disease; hypothyroidism, controlled; history of
pulmonary hypertension; history of dyspnea; and essential hypertension, controlled. (R.
12-13). At step three, the ALJ found Plaintiff’s combination of impairments, while severe,
did not meet or equal one of the listed disabilities set forth in 20 C.F.R. Pt. 404, Subpt. P,
App. 1. (R. 14).

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Before continuing to steps four and five, the ALJ determined Plaintiff’s RFC. (R.
15-22). The ALJ found that, despite her impairments, Plaintiff’s RFC allowed her to
perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the
following limitations:
[C]laimant can stand and/or walk at least one hour without interruption and
at least six hours over the course of an eight-hour workday. The claimant
can sit at least six hours over the course of an eight-hour workday. The
claimant cannot not climb ropes, poles, scaffolds or ladders. The claimant
can occasionally climb ramps and stairs. The claimant can occasionally
balance, stoop, kneel, crouch, and crawl. The claimant can frequently use
her lower extremities for the operation of foot controls. The claimant can
occasionally work in humidity, wetness and extreme temperatures; however,
she cannot work outdoors. The claimant can occasionally work around dusts,
gases, odors and fumes. The claimant cannot work in poorly ventilated areas.
The claimant cannot work at unprotected heights. The claimant can
occasionally work with operating hazardous machinery. The claimant can
frequently work while exposed to vibration. The claimant can frequently
operate motorized vehicles.
(R. 15).
At step four, the ALJ found—based on Plaintiff’s RFC and the testimony of the
VE—Plaintiff was able to perform her past relevant work as a garment sorter. (R. 22).
Alternatively, at step five, the ALJ found that if Plaintiff could not return to her past
relevant work, there were other jobs that exist in significant numbers in the national
economy she could perform. Id. Based upon the testimony of the VE, the ALJ identified
the following representative occupations: “Tagger,” “Inspector,” and “Laundry Worker.”
(R. 23). Thus, the ALJ found Plaintiff not disabled as defined under sections 216(i) and
223(d) of the Act. (R. 23).

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IV. MEDICAL HISTORY
The Court adopts, in large part, the facts as set out in Plaintiff’s brief pertaining to
her medical history. (Doc. 12) at 6-9. Plaintiff indicated in her application the following
physical conditions: COPD, pulmonary hypertension, edema in legs and feet, facet disorder
(L2-S1), pain all over from her neck to her feet, a thyroid problem, and acid reflux. (R.
284). Plaintiff reported a height of 62 inches and a weight of 219 pounds, which equates
to a body mass index (BMI) of 40.1. Id.
Plaintiff’s earliest physical examination in the record is an April 17, 2010,
consultative examination report (“CER”) from a family practice physician, Dr. Melvin
Williams. (R. 377-82). Dr. Williams noted Plaintiff had poor air movement bilaterally
and 1+ lower extremity edema up to the level of the mid tibia. Id. A chest x-ray indicated
a normal heart size, normal media stinum, and assessed dyspnea, COPD, and acute
bronchitis. Id. An MRI of the lumbar spine showed a normal lumbosacral spine. Id. Dr.
Williams diagnosed COPD with a history of asthma, chronic, persistent, with continued
tobacco abuse. Id. A later MRI, dated January 16, 2012 and performed by Dr. Ross Barnett
showed a normal lumbar spinal alignment with no bulging or herniation seen. (R. 632).
A chest x-ray dated May 11, 2012 and reviewed by Dr. Louise Geary found an
otherwise normal study with a normal heart size, normal pulmonary vascularity, and
minimal prominence in the area of the azygos node. (R. 383). The record shows a CER
was performed by an internal medicine physician, Dr. Oluyinka S. Adejili, on March 21,
2013, in response to an earlier application for DIB/SSI benefits alleging an onset date of
September 21, 2011. The CER found no issues with Plaintiff’s musculoskeletal system or
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swelling of the joints. (R. 391-95). Dr. Adejili further noted normal respiration and
diaphragmatic excursion with only slight diminishment due to auscultation. Id. Heart rate
and respiration were measured as normal, with an elevated blood pressure and a BMI
reading of 39.5. Id. ECG was normal, chest x-ray showed clear lungs but with increased
bronchial marking bilaterally, and spinal x-ray showed minimal lumbar spondylosis and
degenerative disc disease. Id. Dr. Adediji concluded that because of the non-specific
obstructive airway disease, Plaintiff might not tolerate low to intermediate levels of
exertion. Id. A chest x-ray performed on March 31, 2013, showed clear lungs, no pleural
effusion or pleural thickening and normal cardiac size. (R. 572). A physical examination
performed by Dr. Dixie Kidd on November 18, 2013, showed bilateral respiratory
auscultation and decreased breath sounds but showed no edema or swelling in the
extremities. (R. 417-21). However, at a follow-up appointment on December 18, 2013,
the examining physician’s assistant, Jessica Melvin, noted 3+ bilateral edema in the lower
legs. (R. 423-26).
On January 14, 2014—the alleged amended onset date—Plaintiff met with Dr.
Dimtcho Popov for an evaluation and consult.

(R. 441-58).

Dr. Popov’s physical

examination reported a normal respiratory rate and pattern with normal vesicular breath
sounds and no rales, rhonchi, wheezing, or pleuritic rubs. Id. Cardiovascular examination
revealed normal heart rate and rhythm with no murmurs, gallops, thrills, or heaves. Id.
Plaintiff’s ECG was normal. (R. 633). Examination of the extremities showed no cyanosis,
no clubbing, but 3+ peripheral edema. (R. 441-58). A spirometry report indicates dyspnea,
high COPD risk, and a severe airway obstruction with low vital capacity. Id. Dr. Popov
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diagnosed obstructive chronic, controlled bronchitis, unspecified acquired hypothyroidism,
and COPD and referred Plaintiff to Dr. Keri Brown, a pulmonologist, for evaluation of her
COPD. Id. Dr. Popov also referred Plaintiff to the Montgomery, AL, Center for Pain for
management of her back pain on the same day. Id. On January 22, 2014, Plaintiff was
examined by Dr. Brown. (R. 434-36). Vitals showed a blood pressure of 123/79, pulse
oximetry of 97%, and a BMI of 39.06. Id. Cardiovascular examination showed normal
heart rate and rhythm with no murmurs, gallops, or rubs. Id. Respiratory examination
showed normal bronchial breath sounds bilaterally without increased work of breathing or
retractions and no rales, rhonchi, or wheezes. Id. Examination of the extremities show no
clubbing, cyanosis, or edema. Id. Dr. Brown assessed COPD and chronic bronchitis and
scheduled a follow-up in three months. Id. Two weeks later, Plaintiff met again with Dr.
Popov. (R. 437-40). Dr. Popov’s physical examination indicated a normal respiratory rate
and pattern with normal vesicular breath sounds and no rales, rhonchi, wheezing, or
pleuritic rubs. Id. Cardiovascular examination revealed normal heart rate and rhythm with
no murmurs, gallops, thrills, or heaves. Id. Examination of the extremities show no
cyanosis, no clubbing, and no peripheral edema. Id. Despite reporting no symptoms in his
physical examination, Dr. Povov diagnosed Plaintiff with obstructive chronic, controlled
bronchitis and chronic, uncontrolled swelling of the limb, but he did not diagnose COPD,
asthma, or hypothyroidism. Id. Dr. Povov scheduled a follow-up in three months and
referred Plaintiff to Dr. Joseph Deering for a heart catheterization and evaluation for
possible pulmonary hypertension. Id.

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On February 19, 2014, Plaintiff met with Dr. Deering prior to undergoing the heart
catheterization. (R. 463-65). Dr. Deering’s examination reported clear to auscultation lung
function, normal heart rate and rhythm, and 3+ lower extremity edema. Id. Dr. Deering
performed a stress test on Plaintiff and reported results that were negative for chest pain
and ischemia and positive for moderate dyspnea. Id. On February 26, 2014, Plaintiff
underwent a heart catheterization. (R. 459-62). The procedure report indicated normal
cardiac output with mild to moderate pulmonary hypertension and elevated heart filling
pressures. Id. Dr. Deering followed up with Plaintiff on March 13, 2014, to review her
test results. (R. 466-69). He diagnosed COPD with mild to moderate secondary pulmonary
hypertension as well as bilateral lower extremity edema. Id. Dr. Deering attributed the
impairments to Plaintiff’s obesity and recommended a low sodium and low carb diet,
regular exercise, and cessation of Plaintiff’s excessive sweet tea consumption. Id.
The Plaintiff was seen by the Montgomery, AL, Center for Pain on February 20,
2014. (R. 473-88). At that appointment, Plaintiff denied any chest pain/pressure, edema,
exercise intolerance, asthma, pleuritic pain, dyspnea, or wheezing. Id. The examining
physician, Dr. Aaron Shinkle, reported normal respiration without pain and overall strong
cardiovascular function. Id. Plaintiff was seen again on March 29, 2019, and again denied
any chest pain/pressure or exercise intolerance but did complain of asthma, dyspnea, and
wheezing. Id. Dr. Shinkle again reported normal respiration without pain and overall
strong cardiovascular function. Id. Plaintiff was seen a third time on April 14, 2014, and
again denied any chest pain/pressure or exercise intolerance but did complain of asthma,
dyspnea, and wheezing. Id. Dr. Shinkle again reported normal respiration without pain
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and overall strong cardiovascular function. Id. Plaintiff was seen a fourth time on May
21, 2014, and a fifth time on July 16, 2014. (R. 506-09, 588-91). At both appointments,
Plaintiff denied any shortness of breath, wheezing, or cough, but did admit back, neck, and
joint pain. Id. Dr. Shinkle’s examinations showed unlabored breathing, no edema or
cyanosis in the extremities, paraspinal musculater tenderness and decreased spine range of
motion. Id. At each appointment, Plaintiff was prescribed inter alia Lasix, Advair, and
Norco. (R. 473-88, 506-09). Plaintiff reported at her second visit that she wanted to
continue being prescribed these medications because they allowed her to perform activities
of daily living with no untoward effects. Id. at 488. Plaintiff further reported that she
suffered no complications from the use of these medications and that they were giving
adequate analgesia. Id.
Plaintiff had a follow-up appointment with Dr. Popov on March 31, 2014. (R. 497500). Dr. Popov’s physical examination reported a normal blood pressure of 112/74, pulse
of 92, and BMI of 39.07. Id. Examination of the respiratory system revealed a normal
respiratory rate and pattern. Id. The lung fields were resonant bilaterally, with equally
palpable vibrations, normal vesicular breath sounds, and no rales, rhonchi, wheezing, or
pleuritic rubs. Id. Examination of the cardiovascular system revealed no thrills or heaves
with a normal S1, S2, normal heart rate, regular rhythm, and no murmurs or gallops. Id.
Examination of the back revealed no abnormal curvatures or point tenderness and full range
of motion. Id. Dr. Popov diagnosed shortness of breath, hypertension, and swelling of the
limb, but not hypothyroidism, COPD, bronchitis, or asthma. Id.

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Plaintiff had a second appointment with her pulmonologist, Dr. Brown, on April 22,
2014. (R. 489-91). Dr. Brown noted in her examination normal heart rate and rhythm,
bronchial breath sounds bilaterally without increased work of breathing or retractions, and
chronic non-pitting lower extremity edema. Id. Dr. Brown assessed COPD with asthma,
chronic pulmonary heart disease, and chronic bronchitis. Id. Plaintiff also met with Dr.
Popov on the same day. (R. 493-96). Dr. Popov’s physical examination reported a normal
blood pressure of 101/80, pulse of 74, and BMI of 39.06. Id. Examination of the
respiratory system revealed a normal respiratory rate and pattern with normal vesicular
breath sounds and no rales, rhonchi, wheezing, or pleuritic rubs. Examination of the
cardiovascular system revealed no thrills or heaves with a normal S1, S2, normal heart rate,
regular rhythm, and no murmurs or gallops. Id. Examination of the back revealed no
abnormal curvatures or point tenderness and full range of motion. Id. Dr. Popov diagnosed
unspecified acquired hypothyroidism and swelling of limb, but did not diagnose COPD,
bronchitis, asthma, or pulmonary hypertension. Id. Dr. Brown also performed a diagnostic
polysomnography on May 29, 2014, which showed a normal sleep architecture and no
evidence of cardiac dysrhythmia or PVC. (R. 519-21). Plaintiff was again seen by Dr.
Popov on September 17, 2014. (R. 601-04). Dr. Popov’s examination results were
identical to the previous two visits, except that on this visit, he diagnosed unspecified
acquired hypothyroidism and chronic bronchitis, but not COPD, asthma, or pulmonary
hypertension. Id.
Plaintiff was seen by Dr. Shinkle on January 8, 2015. (R. 799-802). Dr. Shinkle’s
physical examination indicated unlabored breathing, no edema or cyanosis, but paraspinal
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musculater tenderness and decreased spine range of motion. Id. Dr. Shinkle diagnosed
lumbosacral radiculitis, asthma, cervicalgia, hypertension, and lumbago, but not COPD,
bronchitis, or hypothyroidism. Id. Plaintiff was seen by a nurse practitioner, Kimberly
Buckalew on April 2, 2015. (R. 817-20). Buckalew observed unlabored breathing, regular
heart rate and rhythm, and marked lower extremity edema. Id. Buckalew diagnosed inter
alia pulmonary hypertension, thyroid disorder, and COPD. Id. Plaintiff saw Dr. Shinkle
again on April 28, 2015. (R. 795-98). Dr. Shinkle’s PE was identical to the January exam,
but this time he diagnosed lumbosacral radiculitis and cervical radiculitis but not lumbago,
COPD, hypertension, hypothyroidism, or bronchitis. Id. Dr. Shinkle saw Plaintiff again
on July 28, 2015. (R. 790-94). The physical examination was again identical to the first
two, and he diagnosed lumbosacral radiculitis, cervicalgia, and lumbago. Id.
Plaintiff was seen by Dr. Jeff Stewart, a primary care physician, on August 24, 2015.
(R. 749-52). Dr. Stewart’s physical examination reported unlabored breathing with normal
breath sounds throughout, regular heart rate and rhythm, and stated no edema of the lower
extremities was present. Id. Dr. Stewart diagnosed COPD, and bronchitis, but not
pulmonary hypertension, asthma, or edema. Id. Plaintiff was seen again by Dr. Stewart
ten days later on September 3, 2015. (R. 745-48). Dr. Stewart’s medical examination
reported breathing slightly labored and breath sounds distant throughout as well as bilateral
3+ edema. Id. Dr. Stewart diagnosed COPD, pulmonary hypertension, and edema, but not
bronchitis or asthma. Id. Plaintiff was seen by Dr. Mohammed Shubair, a pulmonologist,
on October 13, 2015. (R. 769-76). Plaintiff’s vitals showed a normal blood pressure of
111/76, pulse of 77, and BMI of 34.4. Id. Dr. Shubair’s physical examination reported
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normal breath sounds and good air movement, no wheezing, rales, or rhonchi and normal
heart rate and rhythm. Id. Dr. Shubair also observed normal tone, strength, and movement
of all joints, bones, and muscles. Id. Dr. Shubair diagnosed severe COPD, pulmonary
hypertension, and congestive heart failure. Id. Dr. Shubair scheduled Plaintiff for a
pulmonary function analysis which was performed on October 29, 2015. (R. 773-76).
Plaintiff again met with Dr. Shinkle nine days later on October 22, 2015. (R. 786-89). At
this appointment, Dr. Shinkle diagnosed chronic bilateral cervical radiculitis and chronic
bilateral lumbar radiculitis. Id. The next day, October 23, 2015, Plaintiff was seen by Dr.
Stewart. (R. 741-44). Dr. Stewart’s medical examination reported unlabored breathing
but moderate diminished breath sounds. Id. Dr. Stewart also noted no edema or cyanosis
in the extremities. Id. Dr. Stewart diagnosed COPD and bronchitis, but not pulmonary
hypertension, asthma, or edema. Id. Plaintiff met again with Dr. Shubair on November 4,
2015, to review the results of the pulmonary function analysis. (R. 766-68). Dr. Shubair
diagnosed Plaintiff with severe COPD. Id. Plaintiff had an annual follow-up two days
later with Dr. Deering on November 6, 2015. (R. 723-24). A physical examination showed
a BP of 113/78, a pulse of 81, oxygen saturation of 98 percent, and a BMI of 34.43. Id.
Dr. Deering diagnosed COPD and pulmonary hypertension, but not bronchitis or asthma.
Id.
On January 18, 2016, Plaintiff was seen by Dr. Stewart (R. 737-40). Dr. Stewart’s
physical examination reported unlabored breathing with normal breath sounds throughout
and regular heart rate and rhythm, marked lower extremity edema, and normal spinal range
of motion. Id. Dr. Stewart diagnosed lower extremity edema, but not COPD, bronchitis,
15

or pulmonary hypertension. Id. Plaintiff was seen by Dr. David Holmes in Auburn, AL,
on January 25, 2016. (R. 758-61). Dr. Holmes noted unlabored breathing and normal
breath sounds as well as normal heart rate and rhythm. Id. Dr. Holmes also noted no
edema present in the lower extremities.

Id.

Dr. Holmes diagnosed pulmonary

hypertension, venous insufficiency, and localized edema, but not COPD, bronchitis, or
asthma. Id. Plaintiff was seen again by Dr. Shubair, on February 2, 2016. (R. 764-76).
Dr. Shubair’s physical examination showed decreased breath sounds and diminished air
movement as well as 3+ edema. Id. Dr. Shubair diagnosed severe COPD, pulmonary
hypertension, and congestive heart failure. Id.
V. PLAINTIFF’S ARGUMENTS
Plaintiff identifies the following three issues in her “Statement of the Issues:”
1. The Commissioner’s decision should be reversed because the common medical
opinions of record show that Ms. Harlow’s medical determinable impairments
would prevent the performance of substantial gainful activity on a regular and
continuing basis.
2. The Commissioner’s decision should be reversed because the ALJ erred by failing
to provide adequate rationale addressing the medical opinions of record expressed
by Ms. Harlow’s treating specialist which support a disability finding.
3. The Commissioner’s decision should be reversed because the ALJ erred by
improperly acting as both Judge and medical doctor.
(Doc. 12) at 4.

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VI. ANALYSIS
A. The ALJ did not err in concluding Plaintiff can perform her past relevant work.
Plaintiff argues that the ALJ erred by incorrectly rejecting the medical opinions of
her four treating physicians. (Doc. 12) at 4-5. Plaintiff asserts that the medical opinions
of record provide substantial evidence that her medically determinable impairments would
prevent the performance of substantial gainful activity on a regular and continuing basis.
Id. Plaintiff argues that the ALJ failed to note any medical opinions of record which
controverted the medical opinions of her treating physicians and, hence, may not be
arbitrarily rejected. Id.
The testimony of a treating physician must be given substantial or considerable
weight unless “good cause” is shown to the contrary. Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997) (citing MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.1986);
Broughton v. Heckler, 776 F.2d 960, 961–62 (11th Cir. 1985)). Good cause to discount
the treating physician’s opinion exists when the: (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.
Winschel v.Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). The ALJ must
clearly articulate the reasons for giving less weight to the opinion of a treating physician.
Lewis, 125 F.3d at 1441.
Here, the ALJ properly considered the medical opinion evidence and clearly
articulated his reasons for having good cause to discount Plaintiff’s four treating
physicians’ opinions. First, the ALJ properly afforded Dr. Popov’s medical opinion “no
17

weight” because it was not bolstered by the evidence and because it was inconsistent with
his own medical records. The ALJ explained that Dr. Popov never reported a physical
examination or test result that was consistent with his opinion limiting Plaintiff to less than
sedentary work. (R. 20). The undersigned agrees that the record of Dr. Popov’s physical
examinations shows diagnoses inconsistent with his recorded medical observations as well
as diagnoses that were inconsistent between examinations.
For example, Dr. Popov’s first medical examination of Plaintiff on January 14, 2014
showed inconsistencies between his observations and his diagnoses. (R. 441-58). Dr.
Popov recorded a normal respiratory rate and pattern with normal vesicular breath sounds
and no rales, rhonchi, wheezing, or pleuritic rubs. Id. His cardiovascular examination
showed a normal heart rate and rhythm with no murmurs, gallops, thrills, or heaves. Id.
Plaintiff’s ECG was normal. (R. 633). Despite those observations, Dr. Popov diagnosed
obstructive chronic, controlled bronchitis and COPD. (R. 441-58).
In addition, Dr. Popov’s observations and diagnoses were inconsistent between
examinations. For example, a follow-up examination a few weeks after Plaintiff’s first
appointment with Dr. Popov showed different results from the previous visit. (R. 437-40).
Dr. Popov’s physical examination indicated a normal respiratory rate and pattern with
normal vesicular breath sounds and no rales, rhonchi, wheezing, or pleuritic rubs. Id.
Cardiovascular examination revealed normal heart rate and rhythm with no murmurs,
gallops, thrills, or heaves. Id. Examination of the extremities show no cyanosis, no
clubbing, and no peripheral edema. Id. Despite reporting no symptoms in his physical

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examination, Dr. Povov added a diagnosis of uncontrolled swelling of the limb, but he did
not diagnose COPD, which he had diagnosed at Plaintiff’s previous exam. Id.
In addition to the inconsistencies in diagnoses, the undersigned finds that Dr.
Popov’s opinion as to Plaintiff’s limitations is not supported by his own examinations or
the medical evidence as a whole. The ALJ noted that Dr. Popov, in his Medical Source
Statement (“MSS”), limited Plaintiff to sitting no more than four hours over the course of
an eight-hour workday despite his lack of medical or clinical findings which would support
his assessment of Plaintiff’s limitations. (R. 20). The ALJ further found that while Dr.
Popov noted Plaintiff’s respiratory impairment, which was her greatest impairment, he did
not completely limit her capacity to work based on that impairment. Id. Dr. Popov reported
Plaintiff would miss four days a month but neither his records nor the MSS explain why
he would conclude as such. (R. 680). Thus, the undersigned finds that the ALJ had good
cause to discount Dr. Popov’s opinion, and his decision was supported by substantial
evidence. Accordingly, the Court concludes the ALJ properly considered and discounted
the opinion of Dr. Popov.
Similarly, the ALJ properly afforded Dr. Brown’s medical opinion “no weight”
because her opinion was not bolstered by the evidence and because her opinion was
inconsistent with her own medical records. Dr. Brown’s physical examinations show
diagnoses inconsistent with her recorded medical observations as well as diagnoses that
were inconsistent between examinations. For example, Dr. Brown’s medical examination
of Plaintiff on January 22, 2014, showed inconsistencies between her observations and her
diagnoses. (R. 434-36). Dr. Brown recorded vitals showing a blood pressure of 123/79,
19

pulse oximetry of 97%, and a BMI of 39.06. Id. Cardiovascular examination showed
normal heart rate and rhythm with no murmurs, gallops, or rubs.

Id.

Respiratory

examination showed normal bronchial breath sounds bilaterally without increased work of
breathing or retractions and no rales, rhonchi, or wheezes. Id. Examination of the
extremities show no clubbing, cyanosis, or edema. Id. Despite such an unremarkable
examination, Dr. Brown diagnosed Plaintiff with COPD and chronic bronchitis. Id. At a
follow-up examination on April 22, 2014, Dr. Brown again noted normal heart rate and
rhythm, bronchial breath sounds bilaterally without increased work of breathing or
retractions. (R. 489-91). Dr. Brown also performed a diagnostic polysomnography on May
29, 2014, which showed a normal sleep architecture and no evidence of cardiac
dysrhythmia or PVC. (R. 519-21). Dr. Brown diagnosed COPD with asthma, chronic
pulmonary heart disease, and chronic bronchitis despite recording no symptoms during her
examination which supported those diagnoses. (R. 489-91).
Additionally, Dr. Brown’s opinion as to Plaintiff’s limitations is not supported by
her own examinations or the medical evidence as a whole. The ALJ explained that Dr.
Brown’s opinion in her MSS was not supported by the treatment record of Plaintiff for that
visit. (R. 20-21). The ALJ explained that although Dr. Brown limited Plaintiff to sitting
only two hours without interruption, Dr. Brown did not explain what particular medical
impairments would limit her in that way. Id. Further, although Dr. Brown limited Plaintiff
to no more than four hours of work per day, she failed to explain, based on her medical
examination, why Plaintiff would be limited in that way. Id. The ALJ additionally found
that Dr. Brown failed to explain when Plaintiff became limited as he suggested or how long
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the limitation would last. Id. Thus, the undersigned finds that the ALJ had good cause to
discount Dr. Browns’s opinion and his decision was supported by substantial evidence.
Accordingly, the Court concludes the ALJ properly considered and discounted the opinion
of Dr. Brown.
The ALJ properly afforded Dr. Shubair’s medical opinion “no weight” because his
opinion was not bolstered by the evidence and because his opinion was inconsistent with
his own medical records. The ALJ found that Dr. Shubair’s assessed limitations of Plaintiff
were not consistent with his physical examinations or his treatment of Plaintiff and were
inconsistent with the untainted comprehensive physical examinations contained throughout
the record. (R. 21). Dr. Shubair’s opinion will be more fully discussed infra Section VII.B.
Thus, the undersigned finds that the ALJ had good cause to discount Dr. Shubair’s opinion
and his decision was supported by substantial evidence. Accordingly, the Court concludes
the ALJ properly considered and discounted the opinion of Dr. Shubair.
Finally, the ALJ properly afforded Dr. Holmes’ medical opinion “no weight”
because his opinion was not bolstered by the evidence and because his opinion was both
conclusory and inconsistent with his own medical records. The ALJ found—and the
undersigned concurs—that Dr. Holmes’ one-sentence MSS stating that Plaintiff was
disabled was conclusory and was not accompanied by any evidence that supported his
opinion. (R. 21). The ALJ noted that Dr. Holmes opinion was not accompanied by any
radiographic or laboratory evidence or or by any physical examination.

A treating

physician’s report may be discounted when it is not accompanied by objective medical
evidence or is wholly conclusory. Edwards, 937 F.2d at 583 (citing Schnorr v. Bowen,
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816, F.2d 578, 582 (11th Cir. 1987)). Opinions that are dispositive of the case; i.e. that
would direct the determination or decision of disability, are reserved to the Commissioner.
20 C.F.R. § 404.1527(d). An opinion about whether Plaintiff is disabled is not a medical
opinion entitled to significant weight because that issue is dispositive of the case. See,
Hutchinson v. Astrue, 408 F. App.’x 324, 327 (11th Cir. 2011). Thus, the undersigned
finds that the ALJ had good cause to discount Dr. Holmes’ opinion, and his decision was
supported by substantial evidence. Accordingly, the Court concludes the ALJ properly
considered and discounted the opinion of Dr. Holmes.
B. The ALJ did not err in concluding that the opinion of Dr. Shubair should be
afforded no weight.
Plaintiff argues the ALJ erred by failing to acknowledge the specialization of Dr.
Shubair and by rejecting his medical opinion. (Doc. 12) at 7-8. Plaintiff contends that the
opinions of Dr. Shubair are directly supported by his own examination findings as well as
the findings of Plaintiff’s other treating physicians. Id. at 9.
Generally, the opinion of a specialist is entitled to more weight than the opinions of
other non-specialists. See 20 C.F.R. § 404.1527(c)(5). However, the ALJ must always
consider the medical opinions in the record together with the rest of the relevant evidence
received. Id. § 404.1527(b). While specialists generally are entitled to more weight, when
there are internal inconsistencies, the specialist’s opinion deserves less deference. See
Kerwick v. Comm’r of Soc. Sec., 154 F. App’x 863, 864 (11th Cir.2005). If the opinion of
the physician is not supported by medically acceptable clinical and laboratory diagnostic
techniques, the ALJ need not give it controlling weight. See 20 C.F.R. § 404.1527(c)(2).
22

Here, the ALJ properly afforded Dr. Shubair’s medical opinion “no weight” because
his opinion was inconsistent with the weight of the record in its entirety. Substantial
evidence supports this conclusion.

The ALJ noted that Dr. Brown, Plaintiff’s first

pulmonologist, referred Plaintiff to another pulmonologist, on April 22, 2014, but Plaintiff
did not see Dr. Shubair until October 13, 2015—some eighteen months later. (R. 18). The
ALJ described in substantial detail the various inconsistencies between Dr. Shubair’s
diagnosis with both his own examinations and the record as a whole. Id. at 18-19.
For example, at Plaintiff’s first visit with Dr. Shubair on October 13, 2015, Dr.
Shubair reported a normal blood pressure of 111/76, normal breath sounds and good air
movement, no wheezing, rales, or rhonchi and normal heart rate and rhythm. (R. 769-76).
Yet despite reporting an unremarkable examination, he diagnosed severe COPD,
pulmonary hypertension, and congestive heart failure. Id. Just nine days later, on October
22, 2015, Plaintiff was examined by Dr. Shinkle who reported normal respiratory function
with unlabored breathing and no edema or cyanosis. (R. 788).
The ALJ also found that subsequent examinations by other treating physicians were
also inconsistent with Dr. Shubair’s diagnosis. For example, on January 18, 2016, Plaintiff
was seen by Dr. Stewart (R. 737-40).

Dr. Stewart’s physical examination reported

unlabored breathing with normal breath sounds throughout and regular heart rate and
rhythm with no murmurs, gallops, or rubs, marked lower extremity edema, and normal
spinal range of motion. Id. Dr. Stewart diagnosed lower extremity edema, but not COPD,
bronchitis, or pulmonary hypertension. Id. Plaintiff was seen by Dr. Holmes one week
later on January 25, 2016. (R. 758-61). Dr. Holmes noted unlabored breathing and normal
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breath sounds without rhonchi, rales, or rubs as well as normal heart rate and rhythm with
no murmurs, rub, or gallop. Id. Dr. Holmes diagnosed pulmonary hypertension, but not
COPD, bronchitis, or asthma. Id. Yet, when Plaintiff was seen aby Dr. Shubair eight days
later, on February 2, 2016, Dr. Shubair recorded decreased breath sounds and diminished
air movement.

(R. 764-76).

Dr. Shubair diagnosed severe COPD, pulmonary

hypertension, and congestive heart failure. Id. Further inconsistencies are noted in the
record. See discussion supra Part V.
The ALJ also found inconsistences with the two MSSs completed by Dr. Shubair—
seemingly completed on the same date and just nine days after being notified of her hearing
date. (R. 19). For example, one claimed Plaintiff could not perform work at any exertional
level while the other claimed Plaintiff could occasionally lift and/or carry up to twenty
pounds and sit for two hours and stand/walk for two hours in an eight-hour work day. Id.
The ALJ also noted that Plaintiff ceased treatment with Dr. Shubair after obtaining his
MSSs. Id.
Thus, the undersigned finds that the ALJ had good cause to discount Dr. Shubair’s
opinion, and his decision was supported by substantial evidence. Accordingly, the Court
concludes the ALJ properly considered and discounted the opinion of Dr. Shubair.
C. The ALJ did not err in determining Plaintiff’s Residual Function Capability.
Plaintiff argues that the ALJ erred by improperly acted as both Judge and medical
doctor when he determined that Plaintiff could perform work activities that exceeded the
opinions of her treating physicians. Doc. 12 at 10. Plaintiff asserts that by making his own
medical findings, the ALJ arbitrarily substituted his own hunch or intuition for the
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diagnosis of a medical professional. Id.
An ALJ does not assume the role of a doctor when assessing a claimant’s RFC, and
an ALJ is not required to base his or her RFC finding on a doctor’s opinion. See Castle v.
Colvin, 557 F. App’x 849, 853-54 (11th Cir. 2014); Green v. Soc. Sec. Admin., 223 F.
App’x 915, 923 (11th Cir. 2007).

The determination of a claimant’s RFC is an

administrative assessment, not a medical one, and the final responsibility for assessing a
claimant’s RFC rests with the ALJ. See 20 C.F.R. §§ 404.1527(e)(2), 404.1545(a)(3),
404.1546(a), 416.927(e)(2), 416.945(a)(3), 416.946(a); SSR 96-8p; Castle, 557 F. App’x
at 853. An ALJ’s RFC assessment may be supported by substantial evidence, even in the
absence of any examining medical source opinion addressing Plaintiff’s functional
capacity. Green, 223 F. App’x at 923. Thus, an ALJ does not need a medical source
opinion to inform his RFC finding and may properly base his RFC finding on his evaluation
of the non-medical and medical evidence of record.
“To find that an ALJ’s RFC determination is supported by substantial evidence, it
must be shown that the ALJ has provided a sufficient rationale to link substantial record
evidence to the conclusions reached.” Eaton v. Colvin, 180 F. Supp. 3d 1037, 1055 (S.D.
Ala. 2016) (citation and internal quotation marks omitted). There is no requirement that
the RFC determination “be supported by the assessment of an examining or treating
physician.” Id. at 1055–56. Nor is it required for the ALJ to “specifically refer to every
piece of evidence, so long as the ALJ’s decision is not a broad rejection, i.e., where the
ALJ does not provide enough reasoning for a reviewing court to conclude that the ALJ
considered the claimant's medical condition as a whole.” Packer v. Comm’r Soc. Sec.
25

Admin., 542 F. App’x 890, 891–92 (11th Cir. 2013).
Here, the ALJ extensively discussed the substantial evidence which supported his
assessment. (R. 15-22). In formulating Plaintiff's RFC, the ALJ considered the relevant
medical evidence of record, Plaintiff's testimony, and her reported daily activities. Id. For
example, the ALJ noted that Plaintiff cares for and has full custody of her six-year-old
autistic granddaughter; an activity that would seemingly require physical abilities at or
above those necessary for obtaining and maintaining employment. (R. 21)
The ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms. Id. However, the ALJ determined
that the intensity, persistence, and limiting effects of her symptoms were not enough to
limit her functioning in the workplace entirely. Id. The ALJ also noted that at several of
Plaintiff’s appointments, Plaintiff was counseled on how her obesity contributed to her
impairments and she was advised to switch to a low sodium and low carb diet, engage in
regular exercise, and cease excessive sweet tea consumption. (R. 21-22). There is no
evidence in the record, though, that Plaintiff adhered to this advice. Refusal to follow
prescribed medical treatment without a good reason may preclude a finding of disability.
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
Thus, the ALJ provided enough reasoning for the Court to conclude that he
considered Plaintiff’s medical condition as a whole. Accordingly, the court finds that the
ALJ provided more than a sufficient basis to link substantial record evidence to his
conclusion that Plaintiff could perform a range of light work.

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VII. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the
Court AFFIRMS the Commissioner’s decision.
A separate judgment will be entered.
DONE this 26th day of March, 2019.

/s/ Stephen M. Doyle
UNITED STATES MAGISTRATE JUDGE

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