Whitten v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 6/19/2018. (JLC)

FILED
2018 Jun-19 AM 09:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
SARAH WHITTEN,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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) Case No.: 4:17-CV-0866-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff Sarah Whitten (“Ms. Whitten”) brings this action under 42 U.S.C. §

405(g). Ms. Whitten seeks a review of a final adverse decision of the Commissioner
of the Social Security Administration (“Commissioner”), who denied her application
for supplemental security income (“SSI”). Ms. Whitten exhausted the administrative
remedies available before the Commissioner. This case is now ripe for judicial review
under section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g).
The Court carefully reviewed the record and AFFIRMS the ALJ’s decision.
II.

RELEVANT BACKGROUND
The amended alleged onset date is December 12, 2013. (Tr. 51). Ms. Whitten

suffers from numerous severe impairments, but the ALJ found that none rendered her
disabled. (Id. at 53-54, 67). Ms. Whitten filed an application for Social Security
benefits on December 12, 2013. (Id. at 51). The Social Security Administration
denied that application on March 16, 2014. (Id.). Administrative Law Judge Bruce W.
MacKenzie held a hearing on September 24, 2015. (Id. at 51, 67). The ALJ issued his
decision on December 28, 2015, which was unfavorable to Ms. Whitten. (Id. at 67).
In that opinion, the ALJ found that Ms. Whitten did not meet the disability standard
at Steps Three and Five. (Id. at 54, 66). Ms. Whitten requested the Appeals Council
review the claim. (Id. at 2-5). The Appeals Council refused. (Id.).
III.

STANDARDS
The court’s review of the Commissioner’s decision is narrowly circumscribed.

The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
2

conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
IV.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a

period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.1 The Regulations define “disabled” as
“the inability to do 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

1

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
3

twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
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automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
V.

FINDING OF THE ADMINISTRATIVE LAW JUDGE
After considering the record, the ALJ made the following findings:
1.

The claimant has not engaged in substantial gainful activity since
December 12, 2013, the application date (20 CFR 416.971 et
seq.).

2.

The claimant has the following severe impairments: obesity;
status post lumbar laminectomy L4/5; degenerative disc disease
of the lumbar spine at L1/2; degenerative joint disease of the right
knee; degenerative joint disease of the left shoulder; and major
depressive disorder (20 CFR 416.920(c)).

3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity,
generally, to perform light work as defined in 20 CFR 416.967(b).
The undersigned further finds, however, that the full range of
light work that could be performed by the claimant is reduced by
the following exertional and non-exertional, functional
limitations: the claimant would require a sit/stand option with the
5

retained ability to stay on or at a work station in no less than 30
minute increments each without significant reduction of
remaining on task and she is able to ambulate short distances up
to 100 yards per instance on flat hard surfaces. She is able to
frequently use foot controls bilaterally. She can frequently reach
overhead bilaterally. She can occasionally climb ramps and stairs
but never climb ladders or scaffolds. She can frequently balance
but can only occasionally stoop and never crouch, kneel, or crawl.
The claimant should never be exposed to unprotected heights,
dangerous machinery, dangerous tools, hazardous processes or
operate commercial motor vehicles. She can tolerate frequent
exposure to weather, atmospheric conditions, humidity and
wetness. She can tolerate occasional exposure to extreme heat and
vibration and should never be exposed to extreme cold. She
should be exposed to no more than moderate noise levels. The
undersigned further finds that the claimant could only remember
short simple instructions and would be unable to deal with
detailed or complex instructions. She could do simple routine
repetitive tasks but would be unable to do detailed or complex
tasks. She would be limited to making simple work related
decisions and should have no more than occasional contact with
the general public but could have frequent interaction with coworkers and supervisors. The claimant would be able to accept
constructive non-confrontational criticism, work in small group
settings and be able to accept changes in the work place setting if
introduced gradually and infrequently. She would be unable to
perform assembly line work with production rate pace but could
perform other goal-oriented work. In addition to normal workday
breaks, she would be off-task 5% of an eight-hour workday (nonconsecutive minutes).
5.

The claimant is unable to perform any past relevant work (20
CFR 416.965).

6.

The claimant was born on [REDACTED] and was 44 years old,
which is defined as a younger individual age 18-49, on the date
the application was filed (20 CFR 416.963).
6

7.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964).

8.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

9.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 416.696 and 416.969(a)).

10.

The claimant has not been under a disability, as defined in the
Social Security Act, since December 12, 2013, the date the
application was filed (20 CFR 416.920(g)).

(Tr. 53-67) (emphasis omitted).
VI.

ANALYSIS
Ms. Whitten raises two distinct issues on appeal. The first is whether the ALJ

properly evaluated the physicians’ opinions. The second is whether the ALJ properly
applied the Eleventh Circuit pain standard. After careful review, the Court determines
that there is no reversible error.
A.

The ALJ Did Not Commit Reversible Error in His Treatment of the
Physician Testimony

The first issue is whether the ALJ properly evaluated the medical opinions in
this case. Ms. Whitten argues that the ALJ erred in giving greater weight to “the non-

7

examining statements from the DDS paper doctor” than the other medical sources.
(See Doc. 9 at 9).
1.

Dr. Morgan

Ms. Whitten argues that the “ALJ distort[ed] Dr. Morgan’s findings” and
omitted facts from the exam. (See Doc. 9 at 10-11). She also argues that the ALJ erred
by failing to take into account the limitations noted by Dr. Morgan. (See id. at 11).2
In response, the Commissioner argues that the ALJ was correct to give partial weight
to this opinion for several reasons. (See Doc. 12 at 6).3
The Commissioner first argues that “Dr. Morgan was not a treating provider
so his opinion was not entitled to controlling weight.” (See Doc. 12 at 6) (citing
2

Ms. Whitten takes issue with the ALJ’s discussion of her GED. (See Doc. 9 at 11). It
appears that the ALJ did misstate her testimony from the hearing. The ALJ’s opinion states that
“the claimant testified that she obtained her GED.” (Tr. 64). However, at the hearing, Ms.
Whitten was clear that she never obtained her GED because her online program was not
accredited and that she only got to the 10th grade. (See Tr. 83-84). Ms. Whitten argues that the
ALJ improperly discredited the physicians because of this mischaracterization of the record. (See
Doc. 9 at 11). However, the ALJ also discredited the physicians in other ways. The Court notes
that Ms. Whitten has not contested the ALJ’s seventh factual finding or its effect on the findings
at Step Five. Accordingly, the Court does not address that issue sua sponte.
3

Those five reasons are as follows:

The ALJ gave the opinion partial weight because (1) Dr. Morgan did not have a
treating relationship with Plaintiff, (2) statements in the report were inconsistent
with the remaining record (3) the opinion did not match Dr. Morgan’s clinical
findings, (4) Dr. Morgan’s diagnosis of fibromyalgia was not consistent with SSR
12-2p, and (5) Dr. Morgan’s diagnosis of neuropathy appeared based only on
Plaintiff’s subjective complaints (Tr. 64).
(Doc. 12 at 6).
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sources). Ms. Whitten agrees, but argues that the ALJ still “did not properly evaluate
it.” (See Doc. 13 at 3). The Court notes that Dr. Morgan’s opinion is not controlling.
See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (citing Gibson v. Heckler,
779 F.2d 619, 623 (11th Cir. 1986)) (“Also their opinions are not entitled to deference
because as one-time examiners they were not treating physicians.”).
Second, the Commissioner argues that “some of [Ms. Whitten’s] statements to
Dr. Morgan were inconsistent with the remaining record.” (See Doc. 12 at 6). In
particular, Dr. Morgan noted “[suicidal] thoughts” in his evaluation. (Tr. 726). The
ALJ adequately discussed the medical records supporting that Ms. Whitten had
suicidal thoughts but only in the past. (Tr. 64); (Tr. 771).
Third, the Commissioner argues that “Dr. Morgan’s opinion was inconsistent
with his own treatment notes.” (See Doc. 12 at 7) (citing sources). This was noted by
the ALJ as well. (Tr. 64) (“Further, his opinion does not remotely match his own
clinical findings.”). On review, the Court agrees. (See Tr. 722-30). After an
examination showing mostly unremarkable findings, Dr. Morgan assigned severe
limitations to Ms. Whitten’s “ability . . . to do work-related activities.” (Tr. 725-28);
(but see Tr. 729). For example, Dr. Morgan’s records show almost completely normal
range of motion. (Tr. 727-28). They show normal dexterity and grip strength. (Id. at
728). Dr. Morgan also noted that Ms. Whitten was “a well-developed, well-nourished
9

claimant who is cooperative and does not appear acutely ill.” (Id. at 723). Although
there were some “pain behaviors”, Ms. Whitten was “able to ambulate independently
[and] transfer independently.” (See id.).4 Additionally, it appears that the limitations
afforded by Dr. Morgan were based primarily on Ms. Whitten’s own statements. (See
id. at 722) (“[S]he states she can only sit for five to [ten] minutes before she has lower
back pain.”). That matters. See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1159 (11th Cir. 2004) (“Dr. Ruiz's opinion that Crawford is permanently and totally
disabled is inconsistent with his own treatment notes, unsupported by the medical
evidence, and appears to be based primarily on Crawford's subjective complaints of
pain.”).
Finally, the Commissioner argues that the ALJ made proper determinations on
the fibromyalgia and neuropathy. (See Doc. 12 at 8-11). Ms. Whitten concedes that
“detailed testing regarding tender points are not in the record.” (See Doc. 13 at 4).
However, Ms. Whitten argues that Dr. Go and Dr. Morgan diagnosed her with
fibromyalgia and that “there is also no doctor who has specifically refuted the

4

Ms. Whitten argues that the ALJ left out the part where Dr. Morgan noted that she had
some “‘pain behaviors’ throughout the exam and decreased range of motion.” (See Doc. 9 at 10)
(citing Tr. 723). However, Dr. Morgan’s chart reflects almost totally unremarkable range of
motion findings. (See Tr. 727-28). Additionally, there is no error from the ALJ not reciting that
Ms. Whitten showed some “pain behavior.” (See id. at 723); see also Dyer v. Barnhart, 395 F.3d
1206, 1211 (11th Cir. 2005). He clearly considered the report and the entire record. (See Tr. 5665).
10

fibromyalgia diagnosis.” (See id.). That is not enough. SSR 12-2p states that the
Commissioner “cannot rely upon the physician’s diagnosis alone.” See SSR 12-2p.
Ms. Whitten fails to argue that she met the fibromyalgia standard in SSR 12-2p. (See
id.). Importantly, “ the claimant bears the burden of proving [disability].” Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing the Code of Federal
Regulations).
The parties also discuss whether the ALJ was correct to discount Dr. Morgan’s
opinion on neuropathy. (See Doc. 12 at 8); (see Doc. 13 at 4). The Commissioner
notes that this diagnosis “[was] based on [Ms. Whitten’s] subjective complaints and
not supported by the record.” (See Doc. 12 at 8). Ms. Whitten responds by citing to
portions of the record that purport to show the symptoms of neuropathy. (See Doc.
13 at 4). The Court notes that Dr. Morgan’s opinion on neuropathy seems to be based
primarily on Ms. Whitten’s own statements. (See Tr. 722-24) (“The claimant states
that she has a problem with . . . peripheral neuropathy.”). As a rule, an ALJ may
“discount[ ] a treating physician's opinion . . . when the opinion appears to be based
primarily on the claimant's subjective complaints of pain.” Freeman v. Barnhart, 220
F. App’x 957, 960 (11th Cir. 2007) (citing another source). Additionally, the Court
notes that, in Dr. Morgan’s opinion, he noted largely normal findings regarding Ms.
Whitten’s extremities. (See Tr. 724). The ALJ noted this as well. (See id. at 58-59,
11

64). Further, even if the ALJ erred in not accepting the diagnosis of neuropathy, this
error was harmless as the record is clear that he considered Ms. Whitten’s entire
condition and the whole record. (See Tr. 56-57). Even if the ALJ did not accept the
label of neuropathy, there is no indication that he ignored the symptoms. (See id. at
54, 56-65).
Accordingly, the ALJ committed no reversible error in his consideration of the
evidence from Dr. Morgan.
2.

Dr. Bentley

Ms. Whitten argues that the ALJ did not properly examine Dr. Bentley’s
opinion. (See Doc. 9 at 11-12). Ms. Whitten argues that the ALJ only accepted some
of Dr. Bentley’s opinion while disregarding evidence that did not support his
conclusion. (See id. at 12). Specifically, Ms. Whitten takes issue with the ALJ’s
treatment of Dr. Bentley’s opinions on repetitive work and PTSD. (See id. at 11-12).
In response, the Commissioner points out that “Dr. Bentley was not a treating
provider so his opinion was not entitled to controlling weight.” (Doc. 12 at 12) (citing
20 C.F.R. §416.929(c); Denomme v. Comm’r of Soc. Sec., 518 F. App’x 875, 878
(11th Cir. 2013)). The Commissioner also notes that much of Dr. Bentley’s opinion
“was based on [Ms. Whitten’s] subjective complaints.” (See id.) (citing sources).
Specifically, the Commissioner argues that Dr. Bentley’s repetitive work limitation
12

was not supported by the record. (See id. at 12-14). Ms. Whitten replies by restating
her arguments that the ALJ was “substitut[ing] his opinion for that of the consulting
pyschologist.” (Doc. 13 at 5). She also cites to Marbury v. Sullivan to support her
arguments that the ALJ needed to explain why he did not credit Dr. Bentley’s
repetitive work finding. (See id. at 6) (citing Marbury v. Sullivan, 957 F.2d 837, 839,
840-41 (11th Cir. 1992)).5
Dr. Bentley is a consultative examiner. (Tr. 64). That means that his opinion
does not deserve controlling weight. See Denomme v. Comm’r of Soc. Sec., 518 F.
App’x 875, 877 (11th Cir. 2013) (“The ALJ does not have to defer to the opinion of
a physician who conducted a single examination, and who was not a treating
physician.”) (citing McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987)). The
Court also notes the principles espoused in Shaw v. Astrue:
Procedurally, an ALJ is "required to state with particularity the
weight he [gives] the different medical opinions and the reasons
therefor." Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per
curiam). Absent such a statement, a reviewing court cannot determine
whether the ultimate decision is supported by substantial evidence.
Hudson v. Heckler, 755 F.2d 781, 786 (11th Cir. 1985) (per curiam)
(citation omitted). However, "there is no rigid requirement that the ALJ
specifically refer to every piece of evidence in his decision, so long as

5

Ms. Whitten's citation to Marbury v. Sullivan is unavailing. (See Doc. 9 at 12); (see
Doc. 13 at 6). The court in Marbury was dealing with an ALJ who erred in his treatment of a
treating physicians' testimony. See Marbury, 957 F.2d at 839-41. The case was not about
consultative examiners like Dr. Bentley. See id.
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the ALJ's decision . . . is not a broad rejection which is 'not enough to
enable [this Court] to conclude that [the ALJ] considered her medical
condition as a whole.'" Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.
2005) (per curiam) (quotation omitted) (second alteration in original).
Shaw v. Astrue, 392 F. App’x 684, 686-87 (11th Cir. 2010).
It is important to note that the ALJ did not have to give “good cause” to reject
Dr. Bentley’s opinion. See Shaw, 392 F. App’x at 687. The ALJ also did not have to
refer to every individual shred of evidence. See id. at 686 (citing another source).
However, the ALJ did have to explain his reasons why he gave less weight to the
opinion. See id. at 687. He did so here.
The ALJ adequately explained why he gave less weight to Dr. Bentley’s noncontrolling opinion. (Tr. 64). He specifically noted Dr. Bentley’s finding on repetitive
work. (See id.). He also specifically noted the PTSD diagnosis. (See id.). Clearly, the
ALJ did not ignore this part of Dr. Bentley’s opinion. (See id.). He then notes that
there was no diagnosis for “rheumatoid arthritis or right-sided sciatica.” (See id.). He
also noted that there was no diagnosis of “fibromyalgia or lupus from an acceptable
medical source.” (See id.). Ms. Whitten does not contest either of these statements,
and after searching the record the Court can find no diagnosis for any of those
impairments in the relevant time period before the ALJ. The ALJ acknowledged the
existence of major depressive disorder but also noted the lack of a diagnosis of

14

borderline intellectual functioning. (See id. at 65). Ms. Whitten provides no citations
to any portion of the record where support for that diagnosis could be, other than with
Dr. Bentley. (See Doc. 9 at 11-12); (see Doc. 13 at 5-6). Again, while the ALJ did not
have to show good cause to reject Dr. Bentley’s opinion, the Court notes that one way
to show good cause is that the “‘opinion was not bolstered by the evidence.’” See
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing
another source). Contrary to Ms. Whitten’s arguments that the ALJ was substituting
his opinion for that of Dr. Bentley, the ALJ merely took Dr. Bentley’s opinion and
compared it to the entire record to see if it was supported. (See Doc. 9 at 12); (Doc.
13 at 5). Here, the ALJ’s decision that Dr. Bentley’s opinions were not entirely
supported by the record is supported by substantial evidence.
Additionally, the Court notes that Ms. Whitten sought treatment at the CED
Mental Health Center. (See id. at 861-75). These records are after her meeting with
Dr. Bentley and before the date of the ALJ’s opinion, meaning that the ALJ had the
benefit of these records while Dr. Bentley did not. (See id.). In these records, the
Court could find no diagnosis of PTSD or borderline intellectual functioning. (See
id.). In fact, her records reflect no impairment in intelligence. (See id. at 870).
Additionally, the Court could not find any indication that Ms. Whitten was limited
in her ability to do repetitive work. (See id. at 861-75).
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For these reasons, the ALJ’s determination regarding Dr. Bentley is supported
by substantial evidence.
3.

Dr. Estock

Ms. Whitten argues that the ALJ erred in his consideration of Dr. Estock’s
opinion. (See Doc. 9 at 9-10). She argues that the ALJ omitted parts of Dr. Estock’s
limitations without explanation. (See Doc. 9 at 9-10); (see Doc. 13 at 6-7). While the
Commissioner broadly argues that the ALJ did not err in considering Dr. Estock, the
Commissioner does not directly tackle this issue. (See Doc. 12 at 14). However, on
review, the Court is unpersuaded by Ms. Whitten’s arguments.
Ms. Whitten states that the ALJ ignored Dr. Estock’s opinions on “[her] need
for a ‘well-spaced work setting,’ flexible day schedule, and ‘casual, non-intense
interaction’ with the general public and coworkers.” (See Doc. 9 at 10) (citing Tr. 5657, 120-22). The ALJ actually included in his RFC that Ms. Whitten “should have no
more than occasional contact with the general public.” (Tr. 57). The ALJ also noted
that Ms. Whitten needed “constructive non-confrontational criticism” and that any
“changes in the work place setting” should be “introduced gradually and
infrequently.” (See id.). Additionally, Dr. Estock only stated that “the claimant would
function best with a flexible day schedule in a well-spaced work setting.” (See Tr.
122) (capitalization omitted) (emphasis added). Dr. Estock did not note the flexible
16

day schedule and well-spaced work setting as a limitation; he did not say that without
those two things she could not function at all. If Dr. Estock wanted to say that Ms.
Whitten needed those two things, he could have said so. He did not.6
Ms. Whitten also points out that “Dr. Estock did not perform a review of a
complete case record, as at least 225 pages of records are added to the file after the
date of his opinion.” (Doc. 9 at 10). Dr. Estock rendered his opinion on March 17,
2014. (Tr. 110). Many of the medical records in this case are dated after March 17,
2014. This is important because, under SSR 96-6p, a “State agency medical and
psychological consultant[’s]” opinion must be “based on a review of a complete case
record” to possibly receive “greater weight than the opinions of treating or examining
sources.” See SSR 96-6p. However, it is significant that while Dr. Estock might not
have seen the entire record, the ALJ did. See Cooper v. Comm’r of Soc. Sec., 521 F.
App’x 803, 807 (11th Cir. 2013) (“Moreover, even if the non-examining doctor was
unable to review all of [claimant’s] medical records before making her RFC
determination, she cited several portions of the record in support of her conclusions,
and the ALJ, who made the ultimate determination, had access to the entire record as

6

Additionally, Ms. Whitten only speculates that these additional limitations “further
erode the number of jobs available and may preclude competitive work.” (See Doc. 9 at 10).
However, when given the chance to cross-examine the Vocational Expert at the hearing, Ms.
Whitten’s counsel did not ask a hypothetical to that effect. (See Tr. 102-03).
17

well as Cooper's testimony.”). Here, Ms. Whitten does not argue that the ALJ did not
have the entire record existing at that time before him when he made his decision.
Further, Dr. Estock’s opinion contains numerous references to the underlying medical
records. (Tr. 115-16).
Accordingly, there is no reversible error in how the ALJ treated Dr. Estock’s
opinion.
4.

Dr. Go

Ms. Whitten also mentions the “treating source statements from Dr. Go.” (Doc.
9 at 12) (citing Tr. 965). These statements are dated after the ALJ’s decision. (See Tr.
965-67). Ms. Whitten argues that they are “new and material evidence which should
be considered on remand.” (See id. at 13). However, the Appeals Council has already
considered this evidence and found that it “[did] not provide a basis for changing the
. . . decision.” (Tr. 3, 6). This means that a Sentence Six remand is inappropriate. See
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007) (citing
sources). This is because “[a] remand to the Commissioner is proper under sentence
six when new material evidence that was not incorporated into the administrative
record for good cause comes to the attention of the district court.” See id. (citing
sources) (emphasis added). Here, the evidence was made a part of the administrative
record and considered. (Tr. 3, 6).
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Since this evidence was considered by the Appeals Council, the Court must
determine whether Dr. Go’s opinion means that the ALJ’s decision is not supported
by substantial evidence. See Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d
1253, 1266-67 (11th Cir. 2007). The Commissioner urges the Court to find that Ms.
Whitten has waived this argument as inadequately developed. (See Doc. 12 at 15).
Ms. Whitten believes that this argument has not been waived because she “presented
the treating source statement to the Appeals Council as new and material evidence
and again raised the matter on appeal to this court.” (See Doc. 13 at 7). The Court
agrees with the Commissioner. Ms. Whitten just briefly mentions Dr. Go in her
argument section. (See Doc. 9 at 12-13). She cites three pages from the record and not
single case or statute in support. (See id.). This weakly developed argument has been
waived.
Even if not waived, this argument is ultimately unpersuasive. It appears that Dr.
Go’s opinion is wholly conclusory. (See Tr. 965-67). “A treating physician's report
‘may be discounted when it is not accompanied by objective medical evidence or is
wholly conclusory.’” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th
Cir. 2004) (quoting Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991)).
Additionally, the Court notes that neither party has cited to the underlying medical
records supporting Dr. Go’s opinions. (See Doc. 9 at 6, 12-13); (Doc. 12 at 14-15);
19

(Doc. 13 at 7-8). The cited records appear to be a fill-in-the-blank form supplied by
Ms. Whitten’s attorney. (Tr. 965-67). Further, Dr. Go’s conclusory opinions are not
supported by the record as a whole.
Accordingly, Ms. Whitten’s arguments regarding Dr. Go are unpersuasive.
B.

The ALJ Did Not Commit Reversible Error in His Application of
the Eleventh Circuit Pain Standard

Finally, Ms. Whitten argues that “[t]he ALJ committed reversible error when
he failed to properly apply the requisite two-step test to evaluate Ms. Whitten’s
complaints of pain and anxiety/depression.” (Doc. 9 at 13) (emphasis omitted). The
Commissioner disagrees, arguing that substantial evidence supports the ALJ’s
determination. (See Doc. 12 at 15-19). On review, the Commissioner has the better
of the arguments.
The Eleventh Circuit has explained the pain standard:
In order to establish a disability based on testimony of pain and
other symptoms, the claimant must satisfy two parts of a three-part test
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. See Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991). If the ALJ discredits
subjective testimony, he must articulate explicit and adequate reasons
for doing so. See Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987).
Failure to articulate the reasons for discrediting subjective testimony
requires, as a matter of law, that the testimony be accepted as true. See
Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988).
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Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002).
First, Ms. Whitten claims that she has “chronic pain and depression symptoms
which she experiences daily.” (See Doc. 9 at 13) (citing Tr. 85-91, 97-98).
Additionally, “[s]he testifies that she has trouble ambulating or sitting for long
periods and needs to alternate positions due to back pain.” (See id.) (citing Tr. 92-93).
However, the record tells a different story. Dr. Morgan’s notes indicate that “[s]he is
able to ambulate independently without an assistive device.” (Tr. 723). There were
numerous unremarkable, or only mildly remarkable, medical findings regarding Ms.
Whitten’s use of her extremities. (See Tr. 441, 743, 760, 772, 892, 904, 933).The ALJ
spent time discussing Ms. Whitten’s use of her extremities in the course of his
opinion. (See Tr. 57-61, 64). The ALJ also discussed Ms. Whitten’s back pain. (See
Tr. 57-60, 63-64). Despite Ms. Whitten’s arguments to the contrary, the ALJ’s
opinion is supported by substantial evidence.
Ms. Whitten then turns to SSR 96-8p. (See Doc. 9 at 14). Under that rule, “[t]he
RFC assessment must first identify the individual's functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis.” SSR 96-8p. Additionally, “[w]ork-related mental activities generally required
by competitive, remunerative work include the abilities to: understand, carry out, and
remember instructions; use judgment in making work-related decisions; respond
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appropriately to supervision, co-workers and work situations; and deal with changes
in a routine work setting.” Id. Ms. Whitten argues that the ALJ’s opinion “does not
adequately provide reasons for rejecting” the evidence relating to her alleged mental
impairments. (See Doc. 9 at 14). However, the ALJ’s opinion does adequately explain
his rationale related to her mental impairments. (See Tr. 61-65). He also notes the
restrictions shown by the medical record. (See id. at 62-63). In fact, the ALJ actually
noted fairly broad limitations regarding Ms. Whitten’s mental impairments and how
they affect her ability to function at work. (See Tr. 56-57).
Ms. Whitten implies that the ALJ used the wrong standard in this case. (See
Doc. 9 at 14-15). However, Ms. Whitten does not say where the ALJ actually used
the wrong standard. (See id.). Additionally, Ms. Whitten argues that the ALJ cherrypicked the evidence that suited his theory of the case. (See id. at 15). However, in
making that argument, Ms. Whitten does not bring to the attention of the Court any
piece of evidence that the ALJ omitted, much less one that would constitute reversible
error. (See id.). Accordingly, these arguments are unpersuasive.
There is no reversible error in how the ALJ approached applied the Eleventh
Circuit pain standard. He adequately explained his rationale and his conclusion is
supported by substantial evidence. After reviewing the parties’ arguments and the
record, the Court determines that Ms. Whitten’s second argument does not merit
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reversal.
VII. CONCLUSION
While the Court may have come to different conclusions if it had the free hand
to re-weigh the evidence, it simply is not provided that luxury. See Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Bloodsworth, 703 F.2d at
1239). When faced with an opinion supported at the very least by substantial evidence
and the proper legal standards, this Court must affirm. For these reasons, the decision
of the Commissioner is due to be, and hereby is, AFFIRMED.
DONE and ORDERED this the 19th day of June, 2018.

VIRGINIA EMERSON HOPKINS
United States District Judge

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