McClung v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION For the reasons discussed above, the Court finds that the ALJs 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 Commissioner. Accordingly, the Court affirms the Commissioner. The Court will enter a separate final judgment consistent with this memorandum opinion. Signed by Judge Madeline Hughes Haikala on 9/16/2016. (KMG, )

FILED
2016 Sep-16 PM 05:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

TIMOTHY McCLUNG,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of the
Social Security Administration,
Defendant.

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Case No.: 4:14-CV-2493-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Timothy McClung
seeks judicial review of a final adverse decision of the Commissioner of Social
Security.

The Commissioner denied Mr. McClung’s claims for disability

insurance benefits and supplemental security income. After careful review, the
Court affirms the Commissioner’s decision.
I.

PROCEDURAL HISTORY
Mr. McClung applied for a period of disability and disability insurance

benefits and supplemental security income on June 30, 2011. (Doc. 6-6, pp. 2-11).
Mr. McClung alleges that his disability began on January 11, 2010. (Doc. 6-5, p.

57).1 The Commissioner initially denied Mr. McClung’s claims on September 13,
2011.

(Doc. 6-5, pp. 2-6).

Mr. McClung requested a hearing before an

Administrative Law Judge (ALJ). (Doc. 6-5, pp. 10-11). The ALJ issued an
unfavorable decision on June 21, 2013. (Doc. 6-3, p. 53). On November 10, 2014,
the Appeals Council declined Mr. McClung’s request for review (Doc. 6-3, pp. 26), making the Commissioner’s decision final and a proper candidate for this
Court’s judicial review. See 42 U.S.C §§ 405(g), 1383(c).
II.

STANDARD OF REVIEW
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 there is substantial evidence in the record
to support the ALJ’s factual 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

1

Mr. McClung initially asserted that the onset date was August 31, 2008. (Doc. 6-6, pp. 2, 6).
2

ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir.
2011) (internal quotations and citation omitted). If the ALJ’s factual findings are
supported by substantial evidence, 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,
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 he 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.
3

Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Mr. McClung has not engaged in substantial
gainful activity since January 11, 2010, the alleged onset date. (Doc. 6-3, p. 58).
The ALJ determined that Mr. McClung suffers from the following severe
impairments: diabetes mellitus and depressive disorder. (Doc. 6-3, p. 58).

The

ALJ also found that Mr. McClung has the following non-severe impairments:
status post pancreas and spleen removal, history of alcoholism, dental disease,
eczema, cellulitis, tobacco use, and benign hypertension. (Doc. 6-3, p. 59). Based
on a review of the medical evidence, the ALJ concluded that Mr. McClung does
not have an impairment or a combination of impairments that meets or medically
equals the severity of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Doc. 6-3, pp. 59-61).
Next, the ALJ evaluated Mr. McClung’s residual functional capacity in light
of Mr. McClung’s impairments. The ALJ determined that Mr. McClung has the
RFC to perform:
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
except he can lift and carry twenty pounds occasionally and ten
pounds frequently. He can stand or walk in combination for six hours
in an eight-hour work day. He can frequently climb, balance, stoop,
kneel, crouch, or crawl. He cannot perform in concentrated exposure
to work hazards. He can understand, remember and complete simple
tasks, although concentration for detailed tasks would be limited at
times by emotional factors. He can maintain attention sufficiently to
complete simple one-two step tasks for periods of at least two hours
without the need for special supervision or extra work breaks. He can
4

maintain basic standards of personal hygiene and grooming and can
complete an eight-hour workday with customary breaks. He would
function best with a flexible schedule in a well-spaced work setting.
He can tolerate casual, non-intense interaction with the public and coworkers. Any supervision or criticism should be supportive and nonconfrontational. Any changes in the work environment or work
expectations should be infrequent and gradually introduced. He
would need to have breaks from work that would allow him to check
blood sugar and administer medications as appropriate or may need to
have a snack to eat. He may have occasions due to the need for
medical treatment that he would be absent from the work place for an
eight-hour period or longer.
(Doc. 6-3, pp. 61-62). Based on this RFC, the ALJ concluded that Mr. McClung is
not able to perform his past relevant work as a tube cutter, packer, dryer operator,
or forklift operator. (Doc. 6-3, p. 65).
Relying on testimony from a vocational expert, the ALJ found that jobs exist
in the national economy that Mr. McClung can perform, including parts assembler,
bakery worker, and hand packer. (Doc. 6-3, p. 66).

Accordingly, the ALJ

determined that Mr. McClung has not been under a disability within the meaning
of the Social Security Act. (Doc. 6-3, p. 66).
IV.

ANALYSIS
Mr. McClung argues that he is entitled to relief from the ALJ’s decision

because: (1) the ALJ erred in failing to accord proper weight to the treating
physician’s opinion and erred in failing to state specific reasons for rejecting the
treating physician’s opinion; (2) the ALJ erred in assigning less weight to the
consultative psychologist’s opinions and in assigning more weight to a non5

examining physician’s opinion; (3) the ALJ erred in refusing to allow Mr.
McClung’s mother to testify at the administrative hearing; (4) substantial evidence
does not support the ALJ’s finding that Mr. McClung retains RFC to perform light
work; (5) the ALJ is biased against claimants, and his bias tainted his denial of
benefits; (6) Mr. McClung meets listing 12.05(C) and/or 12.05(D) or an equivalent
listing; (7) the ALJ failed to consider all of Mr. McClung’s severe impairments; (8)
the ALJ failed to consider claimant’s combination of impairments in determining
disability; and (9) the ALJ failed to state adequate reasons for finding Mr.
McClung’s testimony not credible. The Court examines each issue in turn.
A.

The ALJ properly evaluated the medical opinion evidence.

“[T]he ALJ must state with particularity the weight given to different
medical opinions and the reasons therefor.” Winschel, 631 F.3d at 1179 (citing
Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam)); see also
McClurkin v. Social Sec. Admin., 625 Fed. Appx. 960, 962 (11th Cir. 2015)
(same).2 An ALJ must give considerable weight to a treating physician’s medical
opinion if the opinion is supported by the evidence and consistent with the doctor’s
own records. See Winschel, 631 F.3d at 1179. An ALJ may refuse to give the
opinion of a treating physician “substantial or considerable weight . . . [if] ‘good
2

After both parties submitted their briefs, Mr. McClung filed a motion to allow supplemental
authority. Mr. McClung attached to his motion the McClurkin opinion. Mr. McClung’s motion
provides no legal argument regarding McClurkin’s application to this case. (Doc. 13). The
Court has reviewed and considered the McClurkin decision. The Court asks the Clerk to please
TERM Doc. 13.
6

cause’ is shown to the contrary.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41
(11th Cir. 2004). 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] 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. “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,
533 Fed. Appx. at 931.
The opinion of a one-time examiner 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: as such a physician is not a treating
physician.”).
The “opinions of nonexamining, reviewing physicians, when contrary to the
opinion of a treating physician, are entitled to little weight and do not, ‘taken alone,
constitute substantial evidence.’” Gray v. Comm’r of Soc. Sec., 550 Fed. Appx.
850, 854 (11th Cir. 2013) (per curiam) (citing Broughton v. Heckler, 776 F.2d 960,
962 (11th Cir. 1985)).

Nevertheless, if an ALJ properly discounts a treating

physician’s opinion, then an ALJ may rely on contrary opinions of non-examining
7

physicians. See Wainwright v. Comm’r of Soc. Sec., 2007 WL 708971, at *2 (11th
Cir. Mar. 9, 2007) (per curiam) (holding that the ALJ properly assigned substantial
weight to non-examining sources when he rejected a treating psychologist’s
opinion and stated proper reasons for doing so); Ogranaja v. Comm’r of Soc. Sec.,
186 Fed. Appx. 848, 850-51 (11th Cir. 2006) (per curiam) (noting that an ALJ may
consider reports and assessments of state agency physicians as expert opinions and
finding that the ALJ’s decision was supported by substantial evidence because the
ALJ “arrived at his decision after considering the record in its entirety and did not
rely solely on the opinion of the state agency physicians.”).
1.

Substantial evidence supports the ALJ’s decision to give
little weight to the opinion of Dr. Frederic Woriax.

On October 17, 2011, for purposes of Mr. McClung’s disability evaluation,
Dr. Fredric Woriax completed a pre-printed two-page social security disability
questionnaire provided by Mr. McClung’s attorney.

(Doc. 6-10, p. 28).

Dr.

Woriax opined that Mr. McClung is disabled because of brittle diabetes. (Doc. 610, p. 28). Dr. Woriax explained that Mr. McClung’s “condition is one in which
his glucose drops precipitously low randomly.

He requires frequent glucose

monitoring [and] resuscitative efforts to get his glucose up to normal.” (Doc. 6-10,
p. 28). Dr. Woriax stated that Mr. McClung “would benefit from temporary
disability until it can be further ascertained by an endocrinologist whether his
condition would require permanent disability.” (Doc. 6-10, p. 29).
8

The ALJ gave little weight to Dr. Woriax’s opinion because:
at the time, he [Dr. Woriax] had seen the claimant only three times;
and he acknowledged that the claimant’s condition had not been fully
evaluated. Further a statement by a medical source that the claimant
is “disabled” or “unable to work” does not mean that the claimant will
be found disabled as this is an opinion reserved to the Commissioner
as stated in 20 C.F.R. §§ 404.1527(e)(1) and 416.927(e)(1).
(Doc. 6-3, p. 64).

Substantial evidence supports the ALJ’s treatment of Dr.

Woriax’s opinion.
In his brief, Mr. McClung states that Dr. Woriax treated him “numerous
times during three years at the Mary J. Weston Medical Center (WMC) from
6/16/09 to 6/5/12.” (Doc. 9, p. 22). The administrative record provides little
support for Mr. McClung’s assertion. Although Mr. McClung sought care at
WMC in 2009 and 2010, the records do not indicate that Dr. Woriax was his
treating physician during those visits. (Doc. 6-9, pp. 64-70).3
Dr. Woriax indicated on a questionnaire that he completed for Mr. McClung
that he first saw Mr. McClung as a patient on December 29, 2010. (Doc. 6-10, pp.
28-29).

When Mr. McClung saw Dr. Woriax on December 29, 2010, Mr.

McClung sought a prescription for insulin.

(Doc. 6-9, p. 50).

Dr. Woriax

diagnosed Mr. McClung with “benign essential hypertension” and “diabetes
mellitus poorly controlled.”

(Doc. 6-9, p. 52).

3

He prescribed Mr. McClung

The provider signature on most of the WMC records is illegible. A report of test results that is
contemporaneous with one of Mr. McClung’s visits to WMC states that Dr. Schlueter ordered
the tests. (Doc. 6-9, pp. 64, 72-73).
9

medication to address his diabetes and suggested a “lipid profile diet and exercise.”
(Doc. 6-9, p. 52).

Under “practice management,” Dr. Woriax noted “low

complexity decisions.” (Doc. 6-9, p. 52).
Mr. McClung saw other providers at WMC, but the record indicates that Mr.
McClung did not return to Dr. Woriax for a thorough examination until October 3,
2011. (Doc. 6-10, p. 62).4 Once again, Mr. McClung wanted to refill his insulin
prescription. Dr. Woriax noted that Mr. McClung had poorly controlled diabetes,
diabetic hypoglycemia, and benign essential hypertension. (Doc. 6-10, p. 63). Dr.
Woriax examined Mr. McClung on October 17, 2011 before he completed Mr.
McClung’s disability questionnaire. (Doc. 6-10, pp. 61-62).
Therefore, the administrative record demonstrates that Dr. Woriax examined
Mr. McClung three times before Dr. Woriax completed a disability questionnaire
on behalf of Mr. McClung.5
The ALJ articulated good cause for rejecting Dr. Woriax’s opinion. Dr.
Woriax explained that Mr. McClung’s diabetes required further evaluation and that
Mr. McClung “would benefit from temporary disability until it can be further
4

There is a brief notation in Mr. McClung’s records that states that he saw Dr. Woriax on
January 28, 2011. (Doc. 6-9, p. 60).
5

Dr. Woriax indicated that he had seen Mr. McClung three times before completing the
questionnaire. (Doc. 6-10, p. 28). The record also suggests that Mr. McClung saw Dr. Woriax
on October 5, 2011 when Mr. McClung brought disability papers to Dr. Woriax. (Doc. 6-10, p.
62). According to his medical records, Mr. McClung saw Dr. Woriax again in February, March,
and June, 2012. (Doc. 6-10, pp. 59-60). These three visits post-date Dr. Woriax’s completion of
the October 17, 2011 SSD questionnaire.
10

ascertained by an endocrinologist whether [Mr. McClung’s] condition would
require permanent disability.” (Doc. 6-10, p. 29). This statement contradicts Dr.
Woriax’s opinion that Mr. McClung is disabled “indefinitely” because of his brittle
diabetes. (Doc. 6-10, p. 28). Dr. Woriax saw Mr. McClung before Mr. McClung’s
treatment for diabetes stabilized. As the ALJ explained, treatment notes following
Dr. Woriax’s October 2011 evaluation of Mr. McClung indicate that when Mr.
McClung moved from insulin syringes to a preloaded insulin pen and adjusted his
diet, his diabetes was “generally managed.” (Doc. 6-3, p. 63; see Doc. 6-11, pp.
20, 22-23, 25 28, 30 32, 34).
Because Dr. Woriax’s opinion is internally inconsistent and because medical
records that post-date Dr. Woriax’s opinion reflect that Mr. McClung’s diabetes
was uncomplicated and under moderate control with regular testing and proper
insulin dosing, the ALJ did not err in assigning little weight to Dr. Woriax’s
opinion. See 20 C.F.R. § 404.1527(c)(3) (The more a medical source presents
relevant evidence to support an opinion, particularly medical signs and laboratory
findings, the more weight we will give that opinion. The better an explanation a
source provides for an opinion, the more weight we will give that opinion.”);
Crawford, 363 F.3d at 1159-61 (finding that substantial evidence supported the
ALJ’s decision to discredit the opinions of the claimant’s treating physicians where
those physicians’ opinions regarding the claimant’s disability were inconsistent
11

with the physicians’ treatment notes and unsupported by the medical evidence);
Whitton v. Comm’r of Soc. Sec. Admin., --- Fed. Appx. ----, 2016 WL 558591, at
*4 (11th Cir. Feb. 12, 2016) (finding that the ALJ had good cause to reject the
treating physician’s opinion because of inconsistencies between the opinion and
treatment notes). Additionally, opinions such as whether a claimant is disabled
“are not medical opinions…but are instead, opinions on issues reserved to the
Commissioner.” 20 C.F.R. § 404.1527(d)(1); see also 20 C.F.R. § 404.1527(d)(1)
(“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.”).
2.

The ALJ properly considered the opinions of
examining physician Dr. David Wilson and state agency
physician Dr. Robert Heilpern.

Mr. McClung argues that the ALJ erred by assigning less weight to the
opinion of examining physician Dr. Wilson and more weight to the opinion of state
agency physician Dr. Heilpern. (Doc. 9, pp. 27-30). The Court disagrees.
Dr. Wilson examined Mr. McClung in September 2011 and evaluated Mr.
McClung’s intelligence in April 2013. (Doc. 6-9, pp. 99-103; Doc. 6-11, pp. 4142). During the September 2011 examination, Dr. Wilson noted that Mr. McClung
said he had never been admitted to a psychiatric hospital or received mental health
treatment.

(Doc. 6-9, p. 99).

Dr. Wilson’s notes reflect that Mr. McClung

12

complained that he had trouble working due to his inability to check his blood
sugar regularly. (Doc. 6-9, p. 100).
At the time of the examination, Dr. Wilson described Mr. McClung as
“cooperative and respectful with normal speech” and “oriented to time, place
person and situation.” (Doc. 6-9, p. 101-103). Mr. McClung displayed some
issues with attention and concentration, and mild problems with short term
memory. (Doc. 6-9, p. 102). Based on his examination, Dr. Wilson diagnosed Mr.
McClung with depressive disorder and estimated borderline intelligence. (Doc. 69, p. 103). Dr. Wilson concluded that:
[Mr. McClung] appears to have serious problems related to his
diabetes, subsequent to having to have his pancreas removed. This
causes him a great deal of difficulty with his energy and his level of
functioning. He also is very depressed and this would cause him
problems in any type of work setting. He also likely has limitations
due to his cognitive level which would restrict his job options.
(Doc. 6-9, p. 103).
In September 2013, Dr. Wilson assessed a full scale IQ score of 73, which
placed Mr. McClung in the borderline range of intellectual functioning. (Doc. 611, pp. 41-42). Dr. Wilson opined that Mr. McClung’s medical condition had not
improved since September 2011, and “the current testing indicates that he does
have significant cognitive deficits which would greatly limit his occupational
options. A particular problem would be the fact that he has extremely slow

13

processing speed, and this would cause major problems in virtually all job
settings.” (Doc. 6-11, p. 42).
The ALJ gave Dr. Wilson’s opinion less weight because “it is inconsistent
with [Mr. McClung’s] work history and his treatment records and it is not
supported by the evidence as a whole.” (Doc. 6-3, p. 64).

The decision of the

ALJ to give Dr. Wilson’s opinions less weight is supported by substantial
evidence.
Dr. Wilson’s opinion is inconsistent other treatment records, which do not
mention psychiatric symptoms. (Doc. 6-3, p. 14; Doc. 6-9, pp. 21, 50, 56, 96; Doc.
6-10, pp. 36, 76). During an emergency room visit in July 2010, Mr. McClung’s
mental status was described as normal. (Doc. 6-9, p. 21). In December of 2010,
Mr. McClung reported no depression with changes in dietary habits, no lost
interest in activities, slightly reduced energy, no trouble with concentration, and
slight feelings of hopelessness. (Doc. 6-9, p. 50). May 2011 treatment notes state
that Mr. McClung was an alcoholic with “chronic depression associated,” however,
the record contains no indication that Mr. McClung had limitations related to this
impairment, and the record does not suggest any mental health treatment. (Doc. 69, pp. 25-26). Treatment notes from June 2011, November 2011, and August 2012
do not indicate depression or other psychiatric disorders. (Doc. 6-9, p. 56; Doc. 6-

14

10, pp. 36, 74-76).6 Therefore, substantial evidence supports the ALJ’s decision to
give less weight to Dr. Wilson’s opinion. See e.g., McCloud v. Barnhart, 166 Fed.
Appx. 410 (11th Cir. 2006) (“The ALJ may reject the opinion of any physician
when the evidence supports a contrary conclusion.”).
The ALJ also properly evaluated Dr. Heilpern’s opinion. Pursuant to 20
C.F.R. § 404.1527(e)(2)(i), the ALJ “must consider findings and other opinions of
State agency medical and psychological consultants. . . .” The ALJ compared Dr.
Heilpern’s opinion to the evidence in the record and determined that Dr. Heilpern’s
opinion was more credible that Dr. Wilson’s opinion. The ALJ gave significant
weight to Dr. Heilpern’s opinion based on his finding that Dr. Heilpern’s opinion
was “supported by the evidence as a whole.” (Doc. 6-3, p. 64). Dr. Heilpern
opined that:
The claimant can understand, remember, and complete simple tasks.
Concentration for detailed tasks would be limited at times by
emotional factors. The claimant can maintain attention sufficiently to
complete simple, 1-to-2-step tasks for periods of at least 2 hours,
without the need for special supervision or extra work breaks.
The claimant can maintain basic standards of persona[l] hygiene and
grooming. Claimant appears able to complete an 8-hour workday,
provided all customary breaks from work are provided. The claimant
would function best with a flexible daily schedule in a well-spaced
work setting.
The claimant can tolerate casual, non-intense
interaction with members of the general public and coworkers.

6

A treatment note from July 2013 – just after the ALJ issued his opinion – states that Mr.
McClung was “[n]egative for anxiety, depression, and psychiatric symptoms.” (Doc. 6-3, p. 14).
15

Supervision and
confrontational.

criticism

should

be

supportive

and

non-

. . . . Changes in the work environment or expectations should be
infrequent and introduced gradually.
(Doc. 6-10, p. 26).
Dr. Heilpern’s findings are consistent with the overall record, and the ALJ’s
reasons for assigning greater weight to Dr. Heilpern’s opinion than Dr. Wilson’s
opinion are “explicit, adequate, and supported by substantial evidence in the
record.” Wainwright, 2007 WL 708971, at *2 (substantial evidence supported
ALJ’s decision to accept opinion of state agency psychologist where the ALJ
stated with particularity the reasons for doing so); see also Osborn v. Barnhart,
194 Fed. Appx. 654, 668 (11th Cir. 2006) (substantial evidence supported ALJ’s
decision to credit state agency physician’s evaluation over other medical opinions
where the claimant failed to produce any evidence from a medical source
indicating the limitations his impairments had on his ability to work and where the
state agency evaluation was supported by other objective evidence).
B.

The ALJ did not err when he refused to allow Mr. McClung’s
mother to testify at the administrative hearing.

Mr. McClung argues that the ALJ should have allowed his mother to testify
at his administrative hearing. (Doc. 9, pp. 30-31). Mr. McClung’s argument is not
persuasive.

16

Mr. McClung sought to have his mother testify about his problems “thinking
and concentrating and following instructions.” (Doc. 6-3, p. 88). In response to
the proposed testimony, the ALJ asked Mr. McClung’s counsel if Mr. McClung’s
mother had the medical expertise necessary to analyze medical or mental
problems. (Doc. 6-3, p. 88). Mr. McClung’s counsel replied that Mr. McClung’s
mother did not have medical expertise. The ALJ asked Mr. McClung’s attorney if
he had “anything else you need her to testify about?” (Doc. 6-3, p. 88). Mr.
McClung’s attorney replied that Mr. McClung’s mother had no other testimony to
provide. (Doc. 6-3, p. 88).
The ALJ’s exclusion of Mr. McClung’s mother’s testimony does not provide
a basis for reversing the ALJ’s decision. The ALJ correctly determined that Mr.
McClung’s mother does not qualify as an acceptable source under 20 C.F.R.
404.1513(a) and 416.913(a) because she does not fit into any of the specified
categories listed in the regulations.7 Additionally, the ALJ provided an opportunity

7

20 C.F.R. § 416.913(a) provides:
Sources who can provide evidence to establish an impairment. We need evidence
from acceptable medical sources to establish whether you have a medically
determinable impairment(s). See § 416.908. Acceptable medical sources are -(1) Licensed physicians (medical or osteopathic doctors);
(2) Licensed or certified psychologists. Included are school psychologists, or
other licensed or certified individuals with other titles who perform the same
function as a school psychologist in a school setting, for purposes of establishing
17

for Mr. McClung’s mother to offer other testimony that would not be improper
opinion evidence.

(Doc. 6-3, p. 88).

Mr. McClung already had offered lay

testimony about his ability to think, concentrate, and follow instructions, so his
mother’s testimony would be cumulative on those topics. (Doc. 6-3, pp. 86-88).
Because Mr. McClung’s counsel did not explain how relevant testimony
from Mr. McClung’s mother would differ from the evidence already in the record,
Mr. McClung has not established that the ALJ’s refusal to allow testimony from
Mr. McClung’s mother prejudiced Mr. McClung’s claim. Absent a showing of
prejudice, there is no basis for relief. See Graham v. Apfel, 129 F.3d 1420, 1423
(11th Cir. 1997) (an ALJ has a duty to develop a full and fair record, “[h]owever

intellectual disability, learning disabilities, and borderline intellectual functioning
only;
(3) Licensed optometrists, for purposes of establishing visual disorders only
(except, in the U.S. Virgin Islands, licensed optometrists, for the measurement of
visual acuity and visual fields only). (See paragraph (f) of this section for the
evidence needed for statutory blindness);
(4) Licensed podiatrists, for purposes of establishing impairments of the foot, or
foot and ankle only, depending on whether the State in which the podiatrist
practices permits the practice of podiatry on the foot only, or the foot and ankle;
and
(5) Qualified speech-language pathologists, for purposes of establishing speech or
language impairments only. For this source, "qualified" means that the speechlanguage pathologist must be licensed by the State professional licensing agency,
or be fully certified by the State education agency in the State in which he or she
practices, or hold a Certificate of Clinical Competence from the AmericanSpeech-Language-Hearing Association.
20 C.F.R. § 416.913(a).
18

there must be a showing of prejudice before it is found that the claimant’s right to
due process has been violated to such a degree that the case must be remanded to
the [Commissioner] for further development of the record.”).
Additionally, as discussed in detail throughout this opinion, the record
contained sufficient medical and non-medical evidence for the ALJ to make an
informed decision; supplemental lay testimony was not necessary. See Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The absence of testimony from
Mr. McClung’s mother does not create an “evidentiary gap[].” See Edwards v.
Sullivan, 937 F.2d 580, 586 (11th Cir. 1991); see also Landry v. Heckler, 782 F.2d
1551, 1554 (11th Cir. 1986) (“Because Landry’s claim fails for want of sufficient
medical evidence, his assertion that he should have been allowed to produce lay
testimony is mooted.”); McCloud v. Barnhart, 166 Fed. Appx. 410, 417 (11th Cir.
2006) (“When the medical evidence supports the ALJ’s determination, the ALJ
does not err by refusing to admit lay testimony.”).
C.

Substantial evidence supports the ALJ’s determination that Mr.
McClung has the RFC to perform light work.

The RFC describes the types of work that a claimant may perform despite
severe and non-severe impairments. Maffia v. Comm’r of Soc. Sec., 291 Fed.
Appx. 261, 263 (11th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)). The ALJ has
the authority to determine a claimant’s residual functional capacity, and “the ALJ
considers all of the evidence in the record in determining the claimant’s RFC.”
19

Himes v. Comm’r of Soc. Sec., 585 Fed. Appx. 758, 764 (11th Cir. 2014). Here,
the ALJ determined that Mr. McClung can perform light work with a number of
postural and non-exertional limitations. (Doc. 6-3, pp. 61-62). Mr. McClung
argues that the ALJ’s RFC determination is not supported by substantial evidence
because the ALJ did not perform a function-by-function analysis consistent with
Social Security Ruling 96-9p. (Doc. 9, pp. 31-37).
Mr. McClung’s argument that the ALJ failed to perform a function-byfunction analysis is conclusory. Mr. McClung’s brief cites lengthy portions of a
number of decisions, but Mr. McClung does not identify with specificity what the
ALJ purportedly overlooked in this case.
In making his decision, the ALJ:
considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical
evidence and other evidence, based on the requirements of 20 C.F.R.
§§ 404.1527 and 416.927 and SSR’s 96-4p and 96-7p.
(Doc. 6-3, p. 62).

In addition to medical and objective evidence, the ALJ

considered all opinion evidence submitted in the record. (Doc. 6-3, p. 62). The
ALJ considered Mr. McClung’s testimony regarding his physical and mental
impairments, Mr. McClung’s medical records (noting a surgery to remove his
pancreas and spleen in 2007, reported episodes of hypoglycemia dating back to
2009, diabetes that is at times poorly controlled but has recently been
uncomplicated, and no unusual anxiety or depression), and mental health and
20

ability opinions from Dr. Wilson, Dr. Heilpern, and Dr. Woriax. (Doc. 6-3, p. 6364).
The ALJ’s decision sufficiently indicates that he considered all of the
relevant evidence in arriving at his RFC determination. See Carson v. Comm’r of
Soc. Sec., 440 Fed. Appx. 863, 864 (11th Cir. 2011) (“Following [SSR 96-8p’s
‘function-by-function’] rubric, the ALJ fully discussed and evaluated the medical
evidence, [the claimant’s] testimony, and the effect each impairment has on [the
claimant’s] daily activities.”); Freeman v. Barnhart, 220 Fed. Appx. 957, 959
(11th Cir. 2007) (“[T]he ALJ complied with SSR 96-8p by considering Freeman’s
functional limitations and restrictions and, only after he found none, proceeding to
express her residual functional limitations in terms of exertional levels.”). Because
the ALJ properly considered all records submitted by Mr. McClung and Mr.
McClung’s testimony, the ALJ’s failure to conduct a specific function-by-function
analysis is not reversible error. (Doc. 6-3, pp. 61-65).
D.

Mr. McClung has not demonstrated that the ALJ is biased.

A social security claimant is entitled to an impartial ALJ. Miles v. Chater,
84 F.3d 1397, 1401 (11th Cir. 1996) (an ALJ is “duty-bound to develop a full and
fair record, [and] he must [also] carefully weigh the evidence, giving
individualized consideration to each claim that comes before him”); 20 C.F.R §
404.940 (“An administrative law judge shall not conduct a hearing if he or she is
21

prejudiced or partial with respect to any party or has any interest in the matter
pending for decision.”). An ALJ is entitled to a presumption of impartiality unless
a claimant demonstrates a conflict of interest or another specific ground for
disqualification. See Schweiker v. McClure, 456 U.S. 188, 195 (1982). Moreover,
there must be convincing evidence that “a risk of actual bias or prejudgment”
exists under the circumstances. Withrow v. Larkin, 421 U.S. 35, 47 (1975).
Mr. McClung argues that the ALJ is biased against claimants generally, and
this bias tainted the ALJ’s decision in Mr. McClung’s case. (Doc. 9, p. 37). Mr.
McClung contends that the ALJ is biased against social security claimants because
he approves only 36% of the claims he hears while the approval rate for other ALJs
in Alabama is 50%. (Doc. 9, p. 37). Mr. McClung also asserts that the ALJ:
conducts adversarial hearings, routinely cherry picks and manipulates
facts to support his conclusions, willfully ignores established law,
disregards evidence from treating physicians, thwarts meaningful
review of his decisions by deliberately failing to develop the
evidentiary record, and effectively holds claimants to a higher
evidentiary standard than what is set forth by law.
(Doc. 9, p. 39). Mr. McClung’s argument lacks merit.
Though Mr. McClung asserts that the ALJ has engaged in a “pattern of
deliberate acts engineered to avoid approving meritorious claims and to support
unfavorable decisions,” Mr. McClung does not provide sufficient evidence to
support this assertion.

(Doc. 9, p. 38).

Mr. McClung’s reliance on a prior

allegation by his counsel in another case is misplaced. (Doc. 9, pp. 38-39; citing
22

Allenstein v Barnhart, 419 F. Supp. 2d 1336 (N.D. Ala. 2006)). In the Barnhart
case, the Court found that “[s]ince there is nothing to indicate that the record was
not properly developed, the court concludes that the plaintiff’s allegation of a
generalized bias is irrelevant in this particular case.” Allenstein, 419 F. Supp. 2d at
1337.
Likewise, in this case, Mr. McClung’s disagreement with the ALJ’s decision
does not demonstrate prejudice. As the Court explains elsewhere in this opinion,
the ALJ’s decision is supported by substantial evidence. See supra pp. 8-21; see
infra pp. 23-34. Because the ALJ properly considered the evidence in the record,
and Mr. McClung failed to provide evidence of a conflict of interest or a reason for
disqualification, Mr. McClung cannot demonstrate that the ALJ was biased. See
Bailey v. Colvin, 2015 WL 661375, at *6 (N.D. Ala. Feb. 17, 2015) (“A showing
of prejudice ‘at least requires a showing that the ALJ did not have all of the
relevant evidence before him, or that the ALJ did not consider all of the evidence
in the record in reaching his decision.’”) (quoting Kelley v. Heckler, 761 F.2d
1538, 1540-41 (11th Cir. 1985)).
E.

Substantial evidence supports the ALJ’s decision that Mr.
McClung’s impairments do not meet or medically equal Listing
12.05(C) or 12.05(D).

Mr. McClung argues that he meets or medically equals Listing 12.05(C) or
12.05(D). “To meet Listing 12.05 for [intellectual disability], ‘a claimant must at
23

least (1) have significantly subaverage general intellectual functioning; (2) have
deficits in adaptive behavior; and (3) have manifested deficits in adaptive behavior
before age 22.’” Perkins v. Comm’r of Soc. Sec., 553 Fed. Appx. 870, 872 (11th
Cir. 2014) (quoting Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)).8
“A claimant must meet these diagnostic criteria in addition to one of the four sets
of criteria found in 12.05(A), (B), (C), or (D) in order to show that his impairments
are severe enough to meet or equal Listing 12.05.” Id. (citing 20 C.F.R. § 404,
Subpart P, Appendix 1, § 12.00(A)). Listing 12.05(C) requires “[a] valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of
function.”

20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05(C).

Listing

12.05(D) requires:
[a] valid verbal, performance or full scale IQ of 60 through 70,
resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence or
pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05(D).
Effective September 3, 2013, the Commissioner replaced the term “mental retardation” with
“intellectual disability” in Listing 12.05, but the change did not affect the substance or
requirements of the listing. See Change in Terminology: “Mental Retardation” to “Intellectual
Disability,” 78 Fed. Reg. 46,499, 46,501 (Aug. 1, 2013).
8

24

Mr. McClung argues that his low IQ combined with “depression and severe
uncontrolled brittle type 2 diabetes s/p total pancreatectomy, splenectomy with
repeated episodes of seizures and loss of consciousness due to hypoglycemia”
meets or medically equals Listing 12.05(C) or 12.05(D). The Court disagrees.
The record does not contain evidence that would enable Mr. McClung to
meet his burden of proving that his intellectual deficits meet or medically equal
Listing 12.05(C) or 12.05(D). Mr. McClung’s full scale IQ score of 73 does not
meet the criteria for Listing 12.05(C) or 12.05(D), which both require a full scale
IQ score of 60 through 70.9 Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“For a
claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria.

An impairment that manifests only some of those

criteria, no matter how severely, does not qualify.”) (emphasis in Sullivan).
To support his argument, Mr. McClung cites his grades in school. (Doc. 9,
p. 41; Doc. 6-7, pp. 57-60). Mr. McClung did not attend special education classes,
and he did not testify that his poor grades were connected to an intellectual
disability. (Doc. 6-7, pp. 3-4; Doc. 6-9, p. 100). Mr. McClung thought he was
doing “pretty good” in school, and he only needed half a credit to pass but got
discouraged and did not finish high school. (Doc. 6-9, p. 100). Mr. McClung has
9

Mr. McClung references his processing speed subset score of 68. (Doc. 9, p. 42). Mr.
McClung cites no authority to support an argument that this processing speed subset score
satisfies the requirement of a full scale IQ score between 60 and 70.
25

not demonstrated how his school records establish that he had sub-average
intellectual functioning with deficits in adaptive functioning before age 22.

See

Perkins, 553 Fed. Appx. at 870.
Mr. McClung also relies on a psychological evaluation performed by Dr.
David Wilson.

(Doc. 9, p. 41).

Dr. Wilson diagnosed Mr. McClung with

estimated borderline intelligence, not intellectual disability. (Doc. 6-9, p. 103).
The lack of a diagnosis that matches the language of 12.05 combined with the lack
of a valid IQ score supports the ALJ’s decision that Mr. McClung’s intellectual
limitations do not meet or medically equal Listing 12.05. See Smith v. Comm’r of
Soc. Sec., 535 Fed. Appx. 894, 897-98 (11th Cir. 2013) (“The fact that none of the
other treatment records diagnosed Smith with [intellectual disability] supports the
ALJ’s rejection of the IQ test results and supports the conclusion that Smith did not
meet or equal the criteria of Listing 12.05(C).”); Jordan v. Comm’r of Soc. Sec.,
470 Fed. Appx. 766, 768-69 (11th Cir. 2012) (noting the claimant’s diagnosis of
borderline intellectual functioning, which “is mutually exclusive of [intellectual
disability],” supported the conclusion that the claimant’s impairments did not
satisfy the requirements of Listing 12.05).
Additional evidence shows that Mr. McClung’s impairments did not satisfy
or equal the diagnostic description in the introduction to Listing 12.05.

For

example, during his evaluation with Dr. Wilson, Mr. McClung was able to count
26

down from 20 with no errors, perform serial 3’s to 24 with no errors, perform
simple math problems, recall 2 of 3 items after five minutes, and reproduce four
digits forward and four digits backward. (Doc. 6-9, p. 102). Also, Mr. McClung’s
work history as a truck loader and dryer operator conflicts with his allegation that
he suffers from deficits in adaptive functioning. (Doc. 6-7, p. 4). See e.g., Harris
v. Comm’r of Soc. Sec., 330 Fed. Appx. 813, 815 (11th Cir. 2009) (“Substantial
evidence supports the ALJ’s denial of disability benefits because Harris did not
meet the requirements of Listing 12.05. He was never diagnosed with mental
retardation, only borderline intellectual functioning. The ALJ found that Harris did
well in special education classes and was able to hold several jobs, which did not
indicate the type of deficit in adaptive functioning required for mental retardation.
Harris could dress and bathe himself, take care of his personal needs, and manage
money. Likewise, Harris could read, communicate effectively, and do simple
math.”).
F.

The ALJ properly considered Mr. McClung’s severe
impairments.

At step two, the ALJ concluded that Mr. McClung has the severe
impairments of diabetes mellitus and depressive disorder. (Doc. 6-3, p. 58). Mr.
McClung argues that the ALJ erred by failing to find other severe impairments
including low IQ, borderline intelligence with processing speed in the mildly

27

retarded range, and repeated episodes of seizures and loss of consciousness due to
hypoglycemia. (Doc. 9, p. 43). Mr. McClung’s argument fails for two reasons.
First, “step two requires only a finding of ‘at least one’ severe impairment to
continue on to the later steps.” Tuggerson-Brown v. Comm’r of Soc. Sec., 572 Fed.
Appx. 949, 951 (11th Cir. 2014) (quoting Jamison v. Bowen, 814 F.2d 585, 588
(11th Cir. 1987)); see also Packer v. Comm’r of Soc. Sec., 542 Fed. Appx. 890,
892 (11th Cir. 2013) (“[T]he ALJ determined at step two that at least one severe
impairment existed; the threshold inquiry at step two therefore was satisfied.
Indeed, since the ALJ proceeded beyond step two, any error in failing to find that
Packer suffers from the additional severe impairments of degenerative joint disease
of the right knee or varicose veins would be rendered harmless.”). Therefore, the
ALJ’s failure to identify other alleged severe impairments – if there are any – is
harmless error.
Second, Mr. McClung alleged that he was disabled and unable to work
because of his diabetes and related blood sugar problems and because he had his
pancreas and spleen removed. (Doc. 6-3, pp. 78-79; Doc. 6-7, p. 3). Because Mr.
McClung did not raise other impairments as a basis for his disability, the ALJ had
no obligation to consider them. See Robinson v. Astrue, 365 Fed. Appx. 993, 995
(11th Cir. 2010) (finding that the claimant “did not allege that she was disabled due
to CFS either when she filed her claim or at her May 2006 hearing. Consequently,
28

the ALJ had no duty to consider Robinson's CFS diagnosis.”).10 The ALJ gave Mr.
McClung the benefit of the doubt because the ALJ concluded that Mr. McClung
had not only the severe impairment of diabetes that Mr. McClung identified (Doc.
6-7, p. 3) but also the severe impairment of depressive disorder.
G.

The ALJ properly considered the combined effects of Mr.
McClung’s impairments.

When an ALJ finds several impairments, the ALJ must consider the
impairments in combination. The Eleventh Circuit has held that an ALJ satisfies
this duty by stating that he considered whether the claimant suffered from any
impairment or combination of impairments. See e.g., Wilson v. Barnhart, 284 F.3d
1219, 1224-25 (11th Cir. 2002) (reversing a district court’s determination that an
ALJ did not consider or discuss the cumulative effects of a claimant’s impairments
where the ALJ explicitly stated that the claimant did not have “an impairment or
combination of impairments listed in, or medically equal to one listed” in the
regulations); Hutchinson v. Astrue, 408 Fed. Appx. 324, 327 (11th Cir. 2011)
(finding that the ALJ’s statement that [claimant] “did not have an ‘impairment,
individually or in combination’ that met one of the listed impairments...shows that
the ALJ considered the combined effects of [claimant’s] impairments during her
evaluation”); see also Robinson v. Comm’r of Social Sec., --- Fed. Appx. ----, 2016

10

Although the ALJ had no duty to consider Mr. McClung’s depression, the ALJ found at step
two that Mr. McClung’s depressive disorder is a severe impairment. (Doc. 6-3, p. 58).
29

WL 2610628, at *2 (11th Cir. May 6, 2016) (“[W]e may conclude that an ALJ
properly considered a combination of impairments if the ALJ stated that the
[claimant] is not suffering from any impairment or a combination of impairments
of sufficient severity.”).
In this case, the ALJ explicitly stated that Mr. McClung does not have an
impairment or combination of impairments that meets or medically equals one of
the listed impairments. (Doc. 6-3, p. 59). This statement demonstrates that the
ALJ considered the combined effects of Mr. McClung’s impairments.
H.

The ALJ properly evaluated Mr. McClung’s credibility.

“To establish a disability based on testimony of pain and other symptoms,
the claimant must satisfy two parts of a three-part test by showing ‘(1) evidence of
an underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.’”
Zuba-Ingram v. Commissioner of Social Sec., 600 Fed. Appx. 650, 656 (11th Cir.
(2015) (quoting Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per
curiam)). A claimant’s testimony coupled with evidence that meets this standard
“is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991) (citation omitted). If the ALJ discredits a claimant’s
subjective testimony, the ALJ “must articulate explicit and adequate reasons for
30

doing so.” Wilson, 284 F.3d at 1225. “While an adequate credibility finding need
not cite particular phrases or formulations[,] broad findings that a claimant lacked
credibility . . . are not enough. . . .” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir.
1995) (per curiam); see SSR 96-7P, 1996 WL 374186 at *2 (“The determination or
decision must contain specific reasons for the finding on credibility, supported by
the evidence in the case record, and must be sufficiently specific to make clear to
the individual and to any subsequent reviewers the weight the adjudicator gave to
the individual’s statements and the reasons for that weight”).
Mr. McClung reported that his diabetes and chronic blood sugar problems
are the only issues that would prevent him from working. (Doc. 6-3, p. 79). Mr.
McClung testified that his blood sugar will drop if he is active or gets hot. When
that happens, he becomes confused, and it takes him awhile to elevate his blood
sugar and become oriented. (Doc. 6-3, pp. 78-79). He testified that it takes 30-45
minutes for him to be able to return to his previous activity when his blood sugar
drops because of dizziness and blurred vision. (Doc. 6-3, p. 85). Mr. McClung
stated that he blacked out three times at his previous job, but a friend “covered it
up.” (Doc. 6-3, p. 86). Mr. McClung explained that he had to urinate frequently,
“about 12, 15 times a day.” (Doc. 6-3, p. 86). He also testified that he cannot
stand too long without getting “dizzy a little bit.” (Doc. 6-3, pp. 86-87). He
testified that when his sugar drops, he may doze off for five or ten minutes, and
31

that these episodes happen between five and six times a day. (Doc. 6-3, p. 87).
Mr. McClung stated that he cannot sufficiently focus to watch a two hour movie.
(Doc. 6-3. pp. 87-88).

Mr. McClung testified that none of his doctors has

specifically restricted his functioning. (Doc. 6-3, p. 78).
The ALJ summarized Mr. McClung’s testimony. (Doc. 6-3, pp. 62-63).
The ALJ properly found that Mr. McClung’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms.” (Doc. 6-3, p. 63).
The ALJ then rejected Mr. McClung’s testimony regarding “the intensity,
persistence and limiting effects of these symptoms.”

(Doc. 6-3, p. 63).

Substantial evidence supports the ALJ’s credibility finding.
With respect to Mr. McClung’s testimony about the alleged disabling nature
of his diabetes, the ALJ explained:
[Mr. McClung] became diabetic secondary to removal of his pancreas
and spleen in 2007. However, he recovered well and returned to work
and treatment records indicated that his diabetes was uncomplicated
and under moderate control (Exhibits 1F-6F, 11F, 18F and 21F). The
claimant has reported episodes of hypoglycemia since 2009 that have
required occasional emergency room treatment, more so during the
summer of 2010, and his diabetes has been considered poorly
controlled at times. However, treatment records indicated that the
claimant was only marginally complian[t] with medication as he took
insulin only when he thought he needed it; he was prescribed
metformin but stopped taking it when he did not tolerate it well and he
had difficulty with insulin syringes and needles and was changed to a
pre-loaded pen (Exhibits 7F-9F and 19F). More recent treatment
records generally show the claimant’s diabetes to be uncomplicated
and the two occasions he reported to the emergency room for
hypoglycemia in 2011 and 2012, he recovered quickly with treatment.
32

March 2013 treatment records indicate that although the claimant has
hypoglycemic episodes, his condition is generally managed with diet
and insulin and he is negative for other symptoms (Exhibits 19F-23F).
According[ly], the evidence shows that the claimant’s low blood sugar
primarily occurred due to poor control secondary to guessing as
opposed to measuring. He alleged an inability to pay for test strips
but he admitted to smoking, which is comparable in cost to his needed
test strips. Although the claimant was given information regarding a
prescription assistan[ce] program (Exhibit 21F), there is no indication
that he followed through to obtain low or no cost medical supplies.
When the claimant began measuring his blood sugar levels, the
diagnoses generally changed from diabetes mellitus, poorly controlled
to diabetes mellitus, uncomplicated and he testified that since
monitoring his blood sugar regularly, he had experienced a problem
only one time.
(Doc. 6-3, pp. 63-64).
When evaluating Mr. McClung’s testimony, the ALJ reviewed the medical
evidence in the record.

(Doc. 6-3, pp. 63-64).

See 20 C.F.R. §§ 404.

1529(c)(3)(iv), 416.929(c)(3)(iv). Mr. McClung’s medical records support the
ALJ’s conclusion that although Mr. McClung has medical issues related to his
diabetes and hypoglycemia, many of Mr. McClung’s symptoms are the result of
poorly controlled diabetes caused by Mr. McClung’s failure to test his blood sugar
levels properly and take prescribed amounts of insulin. (Doc. 6-3, p. 63). The
record reflects that in May 2011, Mr. McClung was noted as having “marginal
compliance with his insulin.” (Doc. 6-9, p. 35). Other records note that Mr.
McClung has “diabetes mellitus type 2 that seems to be poorly controlled.” (Doc.
6-9, p. 82; Doc. 6-10, p. 63; see also Doc. 6-9, p. 52). According to a medical
33

record from February 2011, Mr. McClung acknowledged that his blood sugar
checks were high one minute and low the next due in part to his difficulty
managing insulin syringes. (Doc. 6-9, p. 57). More recent medical records for Mr.
McClung list his condition as “diabetes mellitus type 2, uncomplicated” instead of
describing this condition as poorly controlled. (Doc. 6-3, pp. 20, 26; Doc. 6-11, p.
22). The ALJ accounted for Mr. McClung’s diabetes in his RFC analysis by
providing that Mr. McClung could take work breaks to check his blood sugar and
then eat or administer medications. (Doc. 6-3, p. 61).11
Accordingly, substantial evidence supports the ALJ’s adequate and explicit
reasons for rejecting Mr. McClung’s subjective complaints of pain. See e.g., Duval
v. Comm’r of Soc. Sec., 628 Fed. Appx. 703, 712 (11th Cir. 2015) (“The ALJ
explained that Mr. Duval’s testimony was not credible to the extent it was
unsupported by the objective medical evidence and then discussed at length why
similar opinions from Mr. Duval’s treating medical providers were unsupported by
the record. From this discussion, we can clearly infer what testimony from Mr.
Duval the ALJ found lacking in credibility and why it was discredited.”); Brown v.
Comm’r of Soc. Sec., 442 Fed. Appx. 507, 514 (11th Cir. 2011) (the ALJ

11

Medical records in the administrative record that post-date the ALJ’s decision state that Mr.
McClung’s diabetes “has been managed with diet and insulin.” (Doc. 6-3, p. 20 (October 2013);
Doc. 6-3, p. 26 (January 2014); Doc. 6-3, p. 35 (June 2014)).
34

sufficiently assessed the credibility of the claimant’s testimony where the ALJ
thoroughly discussed the claimant’s allegations in light of the record of a whole).
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
Commissioner. Accordingly, the Court affirms the Commissioner. The Court will
enter a separate final judgment consistent with this memorandum opinion.
DONE and ORDERED this September 16, 2016.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

35