Ervin v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/18/2017. (KEK)

FILED
2017 Sep-18 PM 02:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

THERESE SIMS ERVIN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Commissioner of the
Social Security Administration,
Defendant.

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Case No.: 2:15-CV-02020-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. § 405(g) and § 1383(c), plaintiff Therese Sims Ervin
seeks judicial review of a final adverse decision of the Commissioner of Social
Security. The Commissioner denied her claims for a period of disability, disability
insurance benefits, and supplemental security income.

For the reasons stated

below, the Court affirms the Commissioner’s decision.1
I.

1

PROCEDURAL HISTORY

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
(See https://www.ssa.gov/agency/commissioner.html). Therefore, the Court asks the Clerk to
please substitute Ms. Berryhill for Carolyn W. Colvin as the defendant in this action. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
opinions should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).

Ms. Ervin applied for a period of disability, disability insurance benefits, and
supplemental security income on July 29, 2010. (Doc. 7-6, pp. 10-20). Ms. Ervin
alleges that her disability began on July 20, 2010.

(Doc. 7-5, p. 18).2

The

Commissioner initially denied Ms. Ervin’s claims on November 8, 2010. (Doc. 75, pp. 2-11). Ms. Ervin requested a hearing before an Administrative Law Judge
(ALJ). (Doc. 7-5, p. 14). The ALJ issued an unfavorable decision on August 31,
2012. (Doc. 7-4, pp. 16-33). Ms. Ervin asked the Appeals Council to review the
ALJ’s decision. (See Doc. 7-4, p. 39). On September 26, 2013, the Appeals
Council completed its review and remanded the matter to the ALJ. (Doc. 7-4, pp.
39-41).
The ALJ conducted a new hearing and issued a new decision on September
8, 2014, once again finding that Ms. Ervin is not disabled. (Doc. 7-3, pp. 19-44).
Ms. Ervin asked the Appeals Council to review the ALJ’s new opinion. (Doc. 7-3,
p. 17). On October 6, 2015, the Appeals Council declined her request (Doc. 7-3,
pp. 2-5), making the Commissioner’s decision final and a proper candidate for this
Court’s judicial review. See 42 U.S.C. § 405(g) and § 1383(c).
II.

STANDARD OF REVIEW

2

Ms. Ervin originally alleged that her disability began on September 10, 2003. (Doc. 7-6, pp.
10, 17). On May 21, 2011, Ms. Ervin amended her alleged onset to date to July 20, 2010. (Doc.
7-5, p. 18).
2

The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether the record contains substantial evidence
that supports the ALJ’s findings. “Substantial evidence is more than a scintilla and
is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004). In making this evaluation, the Court may not “decide the facts
anew, reweigh the evidence,” or substitute its judgment for that of the ALJ.
Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011)
(internal quotations and citation omitted). If substantial evidence supports the
ALJ’s decision, then the Court “must affirm even if the evidence preponderates
against the Commissioner’s findings.” Costigan v. Comm’r, Soc. Sec. Admin., 603
Fed. Appx. 783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
3

then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).

III.

SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that she is disabled, an ALJ

follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178.
In his September 8, 2014 decision, the ALJ found that Ms. Ervin has not
engaged in substantial gainful activity since July 20, 2010, the alleged onset date.
(Doc. 7-3, p. 24).3 The ALJ determined that Ms. Ervin suffers from the following
severe

impairments:

degenerative

disc

3

disorder

with

facet

arthrosis;

The ALJ found that Ms. Ervin’s amended alleged onset date of July 20, 2010 “precludes her
entitlement to a period of disability and disability insurance benefits under Title II of the Social
Security Act because [she] would not be eligible for insured status on the date of onset as her
date last insured was December 31, 2003.” (Doc. 7-3, p. 22). Therefore, the ALJ dismissed Ms.
Ervin’s claim for a period of disability and disability insurance benefits. (Doc. 7-3, p. 22). The
ALJ’s decision concerns only Ms. Ervin’s application for supplemental security income. (Doc.
7-3, p. 22).
4

polyneuropathy; chronic pain syndrome; bilateral foot impairments; diabetes
mellitus; thyroid impairment; obesity; affective mood disorder; pain disorder;
borderline personality disorder; and an opioid dependence with a remote history of
polysubstance abuse. (Doc. 7-3, p. 25). The ALJ also found that Ms. Ervin has the
following non-severe impairments: obstructive sleep apnea; mild respiratory
disease; hypertension; migraines; knee strain; prolapsed uterus; fibromyalgia;
allergies; dermatitis; and irritable bowel syndrome. (Doc. 7-3, pp. 25-26). Based
on a review of the medical evidence, the ALJ concluded that Ms. Ervin does not
have an impairment or combination of impairments that meets or medically equals
the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Doc. 7-3, pp. 26-27).
In light of Ms. Ervin’s impairments, the ALJ evaluated Ms. Ervin’s residual
functional capacity or RFC. The ALJ determined that Ms. Ervin has the RFC to
perform:
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
[Ms. Ervin] can never climb ladders, ropes or scaffolds; can
occasionally climb stairs and ramps; can occasionally stoop, kneel,
crouch, crawl and engage in activities requiring balance; should avoid
concentrated exposure to extreme temperatures and humidity; should
avoid concentrated exposure to operational controls of moving
machinery and unprotected heights; limited to simple, routine and
repetitive tasks; limited to work in a low-stress environment defined
as requiring only occasional decision-making and only occasional
changes in work setting; and limited to only occasional interaction
with the public and co-workers.
5

(Doc. 7-3, p. 30).
Based on this RFC, the ALJ concluded that Ms. Ervin is unable to perform
her past relevant work as an administrative officer. (Doc. 7-3, p. 42). Relying on
testimony from a vocational expert, the ALJ found that jobs exist in the national
economy that Ms. Ervin can perform, including photocopy machine operator,
general office helper, and garment folder. (Doc. 7-3, p. 43). Accordingly, the ALJ
determined that Ms. Ervin has not been under a disability within the meaning of
the Social Security Act. (Doc. 7-3, p. 44).
IV.

ANALYSIS
Ms. Ervin argues that she is entitled to relief from the ALJ’s decision

because the ALJ failed to properly evaluate the opinion of Dr. Ronald Moon, Ms.
Ervin’s treating physician, and because the ALJ failed to properly evaluate or
explain the weight the ALJ accorded to the opinion of consultative examiner, Dr.
Dan Lowery, Ph.D. The Court examines each issue in turn.
A.

Substantial Evidence Supports the ALJ’s Decision to Give Dr.
Moon’s Opinion Little Weight.

An ALJ must give the opinion of a treating physician like Dr. Moon
“substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (citations omitted).
Good cause exists when “(1) [the] treating physician’s opinion was not bolstered
by the evidence; (2) [the] evidence supported a contrary finding; or (3) [the]
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treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Id. at 1240-41; see also Crawford, 363 F.3d at 1159 (noting a
treating physician’s report may be discounted if it is wholly conclusory or not
supported by objective medical evidence); Edwards v. Sullivan, 937 F.2d 580, 58384 (11th Cir. 1991) (good cause exists when facts in the physician’s own records
contradict the physician’s opinion). “The ALJ must clearly articulate the reasons
for giving less weight to a treating physician’s opinion, and the failure to do so
constitutes error.” Gaskin v. Comm’r. of Soc. Sec., 533 Fed. Appx. 929, 931 (11th
Cir. 2013) (citing Lewis v. Callahan, 125 F. 2d 1436, 1440 (11th Cir. 1997)).
In support of her application for disability benefits, Ms. Ervin relies on
physical capacities evaluations and clinical assessment of pain and fatigue forms
that Dr. Moon completed on January 18, 2011 and January 15, 2014 . (Doc. 7-9,
pp. 91-95; Doc. 7-19, pp. 39-43). In the January 18, 2011 physical capacities
evaluation, Dr. Moon opined that Ms. Ervin can lift and/or carry 20 pounds
occasionally or less frequently and sit and stand for less than a total of one hour in
an eight-hour work day. (Doc. 7-9, p. 91). Dr. Moon also concluded that Ms.
Ervin occasionally can push or pull arm and leg controls; climb stairs; balance;
grasp, twist, and handle; bend; stoop; and reach. (Doc. 7-9, p. 91). Dr. Moon
found that Ms. Ervin can drive, and she frequently can perform fine manipulation,
but she cannot work around hazardous machinery. (Doc. 7-9, p. 91).
7

In clinical assessment of pain and fatigue forms dated January 18, 2011, Dr.
Moon explained that Ms. Ervin’s pain and fatigue distract her from adequate
performance of daily activities or work and that physical activity increases her pain
and fatigue “to such an extent that bedrest and/or medication is necessary.” (Doc.
7-9, pp. 92, 94). Dr. Moon determined that Ms. Ervin’s medication causes some
side effects “but not to such a degree as to create serious problems in most
instances.”

(Doc. 7-9, pp. 93, 95).

Dr. Moon noted that Ms. Ervin has an

underlying medical condition consistent with the pain and fatigue that she
experiences. (Doc. 7-9, pp. 93, 95). Dr. Moon did not identify that medical
condition, but the pain assessment form does not request that information.
On January 15, 2014, Dr. Moon completed another physical capacities
evaluation. (Doc. 7-19, p. 39). In that evaluation, Dr. Moon opined that Ms. Ervin
can lift and/or carry 10 pounds occasionally or less frequently and that Ms. Ervin
can sit for four hours in an eight-hour day and stand and walk for three hours in an
eight-hour day. (Doc. 7-19, p. 39). Dr. Moon concluded that Ms. Ervin frequently
can push and pull leg and arm controls; grasp, twist, and handle; and perform fine
manipulation.

(Doc. 7-19, p. 39).

Dr. Moon determined that Ms. Ervin

occasionally can climb stairs; balance; bend with support; stoop; and reach. (Doc.
7-19, p. 39). Dr. Moon stated that Ms. Ervin should not work around hazardous

8

machinery, dust, allergens, or fumes, but Ms. Ervin may operate motor vehicles.
(Doc. 7-19, p. 39).
In clinical assessment of pain and fatigue forms that Dr. Moon completed on
January 15, 2014, he found that Ms. Ervin’s pain and fatigue distract her from
adequate performance of daily activities and work and that her medication causes
some side effects “but not to such a degree as to create serious problems in most
instances.” (Doc. 7-19, pp. 40-43). Dr. Moon stated that physical activity would
increase Ms. Ervin’s pain “to such an extent that bedrest and/or medication is
necessary” (Doc. 7-19, p. 40) and that physical activity would greatly increase Ms.
Ervin’s fatigue and weakness resulting in “total abandonment of tasks.” (Doc. 719, p. 42). Dr. Moon noted that Ms. Ervin has an underlying medical condition
consistent with the pain and fatigue that she experiences. (Doc. 7-19, pp. 41, 43).
Dr. Moon did not identify the medical condition, but again, the pain assessment
form does not request that information.
The ALJ assigned little weight to Dr. Moon’s opinions about Ms. Ervin’s
physical capacity and pain because the ALJ found that Dr. Moon’s opinions are
“not consistent with the evidence as a whole.” (R. 40).4 Substantial evidence in
the record supports the weight that the ALJ assigned to Dr. Moon’s opinions.

4

The ALJ gave “some weight” to Dr. Moon’s opinion that Ms. Ervin does not need an
ambulatory aid. (Doc. 7-3, p. 41; see Doc. 7-9, p. 91). Ms. Ervin does not challenge the weight
that the ALJ assigned to this opinion. (See Doc. 9, pp. 6-7).
9

Dr. Moon has treated Ms. Ervin for pain since 2008. (See e.g., Doc. 7-14, p.
6). The record contains nearly 50 treatment notes from Ms. Ervin’s visits with Dr.
Moon between March 9, 2010 and January 14, 2014. Some information in the
treatment notes supports Dr. Moon’s opinions. For example, during fall and winter
months, Ms. Ervin complained that the colder weather increased her pain. (Doc. 711, pp. 12, 14, 35, 37; Doc. 7-13, p. 50; Doc. 7-20, p. 25). Rain also aggravated
her pain at times. (Doc. 7-14, p. 26; Doc. 7-17, p. 14). On a handful of occasions,
Ms. Ervin reported increased pain with medication changes or increased activity.
(Doc. 7-9, p. 3; Doc. 7-13, p. 41; Doc. 7-14, p. 41).
Much of the information in the treatment notes indicates that medication
controlled Ms. Ervin’s pain. For a period of several months in 2011 and 2012
when Ms. Ervin did not attend prescribed physical therapy sessions, she told Dr.
Moon that her pain levels increased (Doc. 7-11, pp. 34, 53; Doc. 7-18, p. 16), but
on one occasion when Ms. Ervin reported that missed therapy left her pain less
controlled, Ms. Ervin stated that her pain was tolerable with medication, and she
was able to do most of her daily activities (Doc. 7-18, p. 25).5 In addition, during
an examination on January 14, 2014, Dr. Moon stated that Ms. Ervin was unable to
stand for prolonged periods because of stabbing, sharp pains in her feet (Doc. 7-20,

5

The record does not suggest that Ms. Ervin abandoned physical therapy. Dr. Moon’s treatment
notes state that Ms. Ervin was “getting worse since therapy was denied.” (Doc. 7-11, p. 34; see
also Doc. 7-18, p. 25).
10

p. 4), but in the same treatment note, Dr. Moon stated that Ms. Ervin’s medication
helped make her pain more tolerable and allowed her to be more functional. (Doc.
7-20, p. 7). In fact, the majority of Dr. Moon’s treatment notes indicate that Ms.
Ervin was stable on medication, that medication eased her pain, and that she was
able to complete daily activities. (Doc. 7-9, pp. 9, 13, 17, 22, 27; Doc. 7-11, p. 22;
Doc. 7-12, pp. 31, 43, 45, 55; Doc. 7-13, pp. 3, 6, 17, 27, 31; Doc. 7-14, pp. 18, 29,
49, 52; Doc. 7-16, pp. 14, 24, 33, 42, 51; Doc. 7-17, pp. 5, 23, 41, 50, 59; Doc. 718, pp. 16, 25, 34; Doc. 7-20, pp. 25, 34). These statements are inconsistent with
Dr. Moon’s opinion that Ms. Ervin cannot work a full eight-hour work day and that
physical activity would increase Ms. Ervin’s pain “to such an extent that bedrest”
is necessary. (Doc. 7-9, pp. 92; Doc. 7-19, p. 40).
Ms. Ervin argues Dr. Moon’s treatment notes from five appointments
between January 2012 and May 2012 reflect “significant limitations in the back,
legs, and feet with pain noted to be ‘whole body pain.’” (Doc. 9, p. 7) (citing Doc.
7-14, pp. 6-60). These records demonstrate that Ms. Ervin complained of “whole
body” pain (Doc. 7-14, pp. 6, 15, 18, 28, 51, 52) and Dr. Moon diagnosed somatic
dysfunction and myofascial pain. (Doc. 7-14, pp. 9, 21, 32, 44, 55). Although Dr.
Moon noted some limited range of motion in Ms. Ervin’s spine, ribs, and lower
extremities, Dr. Moon did not identify the degree of limitation, and often, Dr.
Moon found that Ms. Ervin’s bones, joints, muscles, and tendons appeared normal,
11

were stable, and had normal strength and tone. (Doc. 7-14, pp. 7, 19, 30, 42, 53).
In addition, in treatment notes from visits on January 17, 2012 and March 13,
2012, Dr. Moon noted that Ms. Ervin reported increased pain and less pain relief
from her medicine, but she acknowledged that she was able to do most daily
activity. (Doc. 7-14, pp. 29, 49). Although these records contain some objective
findings of limited range of motion, on the whole, these records are inconsistent
with Dr. Moon’s physical capacities evaluations of Ms. Ervin.
The Court finds that substantial evidence supports the ALJ’s decision to give
Dr. Moon’s opinion little weight. Whitton v. Comm’r of Soc. Sec. Admin., 643
Fed. Appx. 842, 846 (11th Cir. 2016) (finding that the ALJ had good cause to
reject the treating physician’s opinion because of inconsistencies between the
opinion and the treating physician’s notes). Therefore, based on the applicable
legal standard (see page 3), the Court must accept the weight that the ALJ assigned
to Dr. Moon’s assessments, even though there is some evidence in the record that
supports those assessments.
B.

The ALJ Did Not Err in Failing to Assign Weight to Dr. Lowery’s
Psychological Evaluation.

On October 13, 2010, state agency examiner Dr. Dan Lowery performed a
mental status examination on Ms. Ervin.

(Doc. 7-9, p. 72).

During the

examination, Ms. Ervin “walked without a gross motor impairment,” and she “did
not demonstrate any overt pain behaviors.” (Doc. 7-9, p. 73). Ms. Ervin “walked
12

slowly and hunched over,” and she had “difficulty standing from a seated
position.” (Doc. 7-9, p. 74). Dr. Lowery explained that Ms. Ervin “was attentive
and cooperative throughout the interview,” but she “made below average eye
contact, did not initiate conversation, and demonstrated below average
interpersonal skills.” (Doc. 7-9, p. 73). Ms. Ervin “was mostly depressed during
the interview,” and her “affect was flat.” (Doc. 7-9, pp. 73-74). Ms. Ervin “was
unable to focus well and took a long time to answer questions.” (Doc. 7-9, p. 74).
Ms. Ervin “appeared mildly confused at times.” (Doc. 7-9, p. 74).
Ms. Ervin had normal speech rate, rhythm, and volume, and her articulation
was clear. (Doc. 7-9, p. 74). Ms. Ervin was alert and oriented to person, place,
and time. (Doc. 7-9, p. 74). Ms. Ervin’s concentration and attention were mildly
impaired; her immediate memory was impaired; and her delayed recall was
average. (Doc. 7-9, p. 74). Ms. Ervin’s “fund of information was excellent,” and
her thinking “was mostly concrete.” (Doc. 7-9, p. 74). Ms. Ervin’s “thought
process appeared logical, coherent, and goal-directed,” and “[t]here was no
evidence of tangential thinking, loose associations, or flight of ideas.” (Doc. 7-9,
p. 74). Ms. Ervin reported feeling guilty, worthless, and hopeless. At times, she
had experienced suicidal thoughts, but she denied “obsessions, compulsions,
hallucinations, delusions, or phobias.” (Doc. 7-9, p. 74). Ms. Ervin “appeared to

13

have below average insight related to her condition and future,” and her judgment
was average. (Doc. 7-9, p. 74).
Dr. Lowery diagnosed pain disorder due to psychological and general
medical conditions and moderate major depressive order. (Doc. 7-9, p. 75). Dr.
Lowery stated that Ms. Ervin’s depression might account for “her severe
immediate recall impairment,” but “a cognitive disorder of unknown etiology is
also possible.”

(Doc. 7-9, p. 75).

Dr. Lowery recommended counseling to

improve Ms. Ervin’s mood. (Doc. 7-9, p. 75).
In his decision, the ALJ provided record citations to Dr. Lowery’s October
2010 evaluation and discussed a number of Dr. Lowery’s findings, but the ALJ did
not mention Dr. Lowery by name. For example, the ALJ stated that Ms. Ervin
“demonstrated excellent fund of information during 2010 formal psychological
testing.” (Doc. 7-3, p. 26; see also Doc. 7-3, pp. 28, 37; compare Doc. 7-9, p. 74).
Referring to an October 2010 evaluation, the ALJ noted that Ms. Ervin “appeared
to have some difficulty rising from a seated position . . . and walked in a hunched
over posture” but “ambulated without gross motor impairment.” (Doc. 7-3, p. 34;
compare Doc. 7-9, p. 75). Without naming Dr. Lowery, the ALJ acknowledged
that Ms. Ervin struggled with depression and cited findings regarding Ms. Ervin’s
mild impairment in attention and concentration and impaired immediate memory.
(Doc. 7-3, p. 28; see also Doc. 7-3, p. 38; compare Doc. 7-9, pp. 74-75). The ALJ
14

explained that during a 2010 examination, Ms. Ervin stated that “the reason she did
not do chores was that she ‘did not have to’ because she lived with her parents.”
(Doc. 7-3, p. 37; compare Doc. 7-9, p. 73). Citing Dr. Lowery’s report, the ALJ
also noted that Ms. Ervin demonstrated “memory impairment and below average
interpersonal skills.” (Doc. 7-3, p. 37; compare Doc. 7-9, pp. 73-74).6 Though he
discussed them in his decision, the ALJ did not assign a specific weight to Dr.
Lowery’s findings when he evaluated the opinion evidence in the record.
(Compare Doc. 7-3, pp. 26, 28, 34, 37-38 with Doc. 7-3, pp. 39-42).
When he reviewed the medical opinion evidence, the ALJ correctly stated
that the record contained a psychological evaluation but that “the examiner offered
no formal opinion as to the claimant’s mental capacity for work.” (Doc. 7-3, p.
41). That is so; Dr. Lowery’s report does not “reflect judgments about . . . what
[Ms. Ervin] can still do despite” her impairments. See 20 C.F.R. § 416.927(a). Dr.
Lowery offered diagnoses, but he did not explain how those diagnoses impact Ms.
Ervin’s ability to work. Therefore, Dr. Lowery’s assessment does not help Ms.
Ervin establish that she is disabled. See Wind v. Barnhart, 133 Fed. Appx. 684,
690 (11th Cir. 2005) (“[A] diagnosis or a mere showing of ‘a deviation from purely
medical standards of bodily perfection or normality’ is insufficient; instead, the

6

The ALJ referred to a meeting that Ms. Ervin had with “consulting psychologist, Dr. Lowell.”
(Doc. 7-3, p. 37). Based on the record citation and the similarity between the names, this seems
to be a reference to Ms. Ervin’s visit with Dr. Lowery.
15

claimant must show the effect of the impairment on her ability to work.”) (quoting
McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)); Cherkaoui v. Comm’r
of Soc. Sec., 678 Fed. Appx. 902, 904 (11th Cir. 2017) (“The claimant bears the
burden of establishing the existence of a disability.”) (citing Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003)).
Assuming without deciding that the ALJ erred in failing to explicitly state
the weight he assigned to Dr. Lowery’s report, the error is harmless. Dr. Lowery
examined Ms. Ervin once, and to the extent that Dr. Lowery’s report constitutes a
medical opinion, the opinion is not entitled to deference. McSwain v. Bowen, 814
F.2d 617, 619 (11th Cir. 1987) (citing Gibson v. Heckler, 779 F.2d 619, 623 (11th
Cir. 1986)); see also Eyre v. Comm’r, Soc. Sec. Admin., 586 Fed. Appx. 521, 523
(11th Cir. 2014) (“The ALJ owes no deference to the opinion of a physician who
conducted a single examination. . . .”). Moreover, the ALJ accounted for Dr.
Lowery’s notes regarding Ms. Ervin’s impairment of attention and concentration
by limiting her in her RFC to simple, routine tasks in a low-stress environment.
(Doc. 7-3, pp. 29-30).
V.

CONCLUSION
For the reasons discussed above, the Court finds that the ALJ’s decision is

supported by substantial evidence, and the ALJ applied proper legal standards.
The Court will not reweigh the evidence or substitute its judgment for that of the
16

Commissioner. Accordingly, the Court affirms the Commissioner’s decision. The
Court will enter a separate final judgment consistent with this memorandum
opinion.
DONE and ORDERED this September 18, 2017.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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