Everett v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 3/31/2016. (SMH)
2016 Mar-31 PM 04:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SHERRY L. EVERETT,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CASE NO. 6:14-CV-2150-SLB
Plaintiff Sherry Everett brings this action pursuant to 42 U.S.C. § 405(g),1 seeking
review of the Commissioner of Social Security’s [“Commissioner”] final decision denying
her application for a period of disability, disability insurance benefits [“DIB”], and
supplemental security income [“SSI”]. Upon review of the record and the relevant law, the
court is of the opinion that the Commissioner’s decision is due to be affirmed.
I. PROCEDURAL HISTORY
Ms. Everett protectively filed a Title II application for a period of disability and DIB
on November 14, 2008. (See doc. 8-4 at R.112.)2 She also protectively filed a Title XVI
application for SSI on November 14, 2008. (Id.) These claims were denied initially on
The judicial review provision for a disability insurance benefits claims, 42 U.S.C.
§ 405(g), also applies to claims for SSI, see 42 U.S.C. § 1383(c)(3).
Reference to a document number, [“Doc. ___”], refers to the number assigned to
each document as it is filed in the court’s record.
March 20, 2009. (Id.) Thereafter, she requested a hearing before an Administrative Law
Judge [“ALJ”], which was held on April 20, 2010 in Cullman, Alabama. (Id.) After the
hearing, the ALJ found Ms. Everett “capable of making a successful adjustment to other
work that exists in significant numbers in the national economy.” (Id. at R.121.) In light of
this finding on June 18, 2010, the ALJ denied Ms. Everett’s claims for a period of disability
and DIB, as well as her claim for SSI. (Id.)
Ms. Everett then requested the Appeals Council to review the ALJ’s decision. (Id. at
R.127.) On July 27, 2011, the Appeals Council granted review under the substantial
evidence provision of the Social Security Administration regulations, 20 C.F.R. §§ 404.907,
416.1470. (Id.) It thereafter vacated the underlying decision and remanded the case to the
ALJ with instructions: (1) to give further consideration to the opinions of John Haney, Ph.D.,
and Jeffrey Long, D.O.; (2) to further evaluate the claimant’s mental impairment; (3) to
further consider the claimant’s residual functional capacity; and (4) to obtain evidence from
a vocational expert. (Id.)
On remand, the ALJ held a hearing on February 4, 2013. (Id. at R.133.) Following
the hearing, the ALJ determined Ms. Everett “capable of making a successful adjustment to
other work that exists in significant numbers in the national economy.” (Id. at R.145.)
Therefore, on March 7, 2013, the ALJ denied her claims for a period of disability, DIB, and
Ms. Everett again requested the Appeals Council to review the ALJ’s decision. (Doc.
8-2 at R.15.) On September 4, 2014, the Appeals Council “found no reason under [its] rules
to review the Administrative Law Judge’s decision.” (Id. at R.1.) Thus, it denied Ms.
Everett’s request for review and the ALJ’s decision became the final decision of the
Commissioner in the case. (Id.)
After the denial of review by the Appeals Council, Ms. Everett filed the present appeal
in this court. (See generally doc. 1.)
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is a
narrow one: “Our review of the Commissioner’s decision is limited to an inquiry into
whether there is substantial evidence to support the findings of the Commissioner, and
whether the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court
gives deference to factual findings and reviews questions of law de novo. Cornelius v.
Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Indeed, the court “may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner];
rather [it] must scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983)).
“The Commissioner’s factual findings are conclusive if supported by substantial
evidence.” Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th
Cir. 1990)). “Substantial evidence is more than a scintilla and is such relevant evidence as
a reasonable person would accept as adequate to support a conclusion.” Winschel v. Comm’r
of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and citations omitted).
“Even if the evidence preponderates against the [Commissioner’s] factual findings, [the
court] must affirm if the decision reached is supported by substantial evidence.” Crawford
v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (quoting Martin, 894 F.2d at 1529). In
contrast, conclusions of law made by the Commissioner have no presumption of validity and
are reviewed de novo. Cornelius, 936 F.2d at 1145. “Failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the proper legal
analysis has been conducted mandates reversal.” Wiggins v. Schweiker, 679 F.2d 1387, 1389
(11th Cir. 1982).
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential evaluation
to determine whether a claimant is eligible for a period of disability, DIB, and/or SSI. See 20
C.F.R. §§ 404.1520(a)(1)-(4), 416.920(a)(1)-(2); Bowen v. City of New York, 476 U.S. 467,
470 (1986). “[A]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he lives, or whether a specific
job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C.
The specific steps in the evaluation process are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations
define “substantial gainful activity” as “work activity that is both substantial and gainful.”3
20 C.F.R. §§ 404.1572, 416.972. If the claimant is working and that work is substantial
The regulations state:
(a) Substantial work activity. Substantial work activity is work activity that
involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid less,
or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do
for pay or profit. Work activity is gainful if it is the kind of work usually done
for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like taking
care of yourself, household tasks, hobbies, therapy, school attendance, club
activities, or social programs to be substantial gainful activity.
20 C.F.R. §§ 404.1572, 416.972.
gainful activity, the Commissioner will find that the claimant is not disabled, regardless of
the claimant’s medical condition or his age, education, and work experience. 20 C.F.R. §§
404.1520(b), 416.920(b). “Under the first step, the claimant has the burden to show that she
is not currently engaged in substantial gainful activity.” Reynolds-Buckley v. Commissioner
of Social Sec., 457 Fed. Appx. 862, 863 (2012).4
The ALJ found that Ms. Everett had “not engaged in substantial gainful activity since
January 1, 2009, the alleged onset date.” (Doc. 8-4 at R.136.) He also found that she her
date last insured for purposes of DIB was December 31, 2009. (Id.)
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner must
next determine whether the claimant suffers from a severe impairment or combination of
impairments that significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); 416.920(a)(4)(ii), (c). “[A] ‘physical
or mental impairment’ is an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). The regulations
provide: “[I]f you do not have any impairment or combination of impairments which
Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
significantly limits your physical or mental ability to do basic work activities, we will find
that you do not have a severe impairment and are, therefore, not disabled. We will not
consider your age, education, and work experience.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
“An impairment can be considered as not severe only if it is a slight abnormality which has
such a minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work, irrespective of age, education, or work experience.” Brady v.
Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R. §§ 404.1521(a), 416.921(a).
A complainant may be found disabled based on a combination of impairments even though
none of the individual impairments alone are disabling. Walker v. Brown, 826 F.2d 996,
1001 (11th Cir. 1985); see also 20 C.F.R. §§ 404.1523, 416.923. A claimant has the burden
to show that she has a severe impairment or combination of impairments. Reynolds-Buckley,
457 Fed. Appx. at 863.
The ALJ found that Ms. Everett had “the following severe impairments: cervical
degenerative disc disease and major depressive disorder.” (Doc. 8-4 at R.136.) He also
noted, “Although [Ms. Everett] has other medically determinable impairments, these
conditions are not ‘severe’ as defined by the Regulations because they do not result in any
work-related limitations.5 (Id. at R.136.)
The ALJ noted that “[t]he record shows diagnoses of chronic obstructive pulmonary
disease, hepatitis C, migraine headaches, osteoarthritis of the right hand, manic depression,
and hypertension, but no work-related limitations.” (Doc. 8-4 at R.136.) Furthermore,
“[s]ome of the records pre-date the alleged onset date of disability and show no follow-up
for any symptomatology.” (Id.)
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets or is equivalent to any one of the listed
impairments, which are impairments that are so severe as to prevent an individual with the
described impairment from performing substantial gainful activity. 20 C.F.R.
§§404.1520(a)(4)(iii), (d)-(e), 416.920(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404, Subpart P,
Appendix 1 [the Listings]. If the claimant’s impairment meets or equals an impairment listed
in the regulations, the Commissioner must find the claimant disabled, regardless of the
claimant’s age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d). The
claimant has the burden of proving that her impairment meets or equals the criteria contained
in one of the Listings. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Ms. Everett did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix I. (Doc. 8-4 at R.137.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment or combination of impairments does not meet or equal the criteria
of a Listing, the claimant must prove that her impairment or combination of impairments
prevents her from performing her past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv),
(f), 416.920(a)(4)(iv), (f). At step four, the Commissioner “will first compare [her]
assessment of [the claimant’s] residual functional capacity [RFC] with the physical and
mental demands of [the claimant’s] past relevant work.
20 C.F.R. §§ 404.1560(b),
416.960(b). “Past relevant work is work that [the claimant has] done within the past 15
years, that was substantial gainful activity, and that lasted long enough for [her] to learn to
do it. 20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1). If the claimant is capable of performing
her past relevant work, the Commissioner will find she is not disabled. 20 C.F.R.
The claimant bears the burden of establishing that the
impairment or combination or impairments prevents her from performing her past relevant
work. Reynolds-Buckley, 457 Fed. Appx. at 863.
Based on his “careful consideration of the entire record,” the ALJ found Ms. Everett
the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she can lift 20 pounds occasionally. She can concentrate
and attend to simple tasks for an eight-hour workday at two-hour increments
with all customary rest breaks. She would work best in a well-spaced
environment with familiar co-workers to minimize stress and distractions. She
can tolerate ordinary work pressures but should avoid excessive workloads,
quick decision-making, rapid changes, and multiple demands. Any contact
with the public and co-workers should be casual or on an occasional basis.
Any feedback should be supportive, tactful, and non-confrontational, so
occasional contact with supervisors and co-workers. Any changes in the work
setting should be presented gradually and infrequently to give time for
(Doc. 8-4 at R.139.) Based on the RFC, the ALJ found that Ms. Everett could not perform
her past relevant work as a short order cook. (Id. at R.144.)
5. Other Work in the National Economy
If the claimant establishes that she is unable to perform her past relevant work, the
Commissioner must show that the claimant – in light of her RFC, age, education, and work
experience – is capable of performing other work that exists in substantial numbers in the
national economy. Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R. §§
404.1520(c)(1), 416.920(c)(1). The regulations provide:
If we find that your [RFC] is not enough to enable you to do any of your
past relevant work, we will use the same [RFC] assessment we used to decide
if you could do your past relevant work when we decide if you can adjust to
any other work. We will look at your ability to adjust to other work by
considering your [RFC] and your vocational factors of age, education, and
work experience. Any other work (jobs) that you can adjust to must exist in
significant numbers in the national economy (either in the region where you
live or in several regions in the country).
20 C.F.R. §§ 404.1560(c)(1), 416.960(c)(1). If the claimant is not capable of performing
such other work, the Commissioner must find the claimant is disabled. 20 C.F.R. §§
404.1520(f), 416.920(f). If, however, the Commissioner finds that the claimant can perform
other work, the claimant has the burden to prove she is not capable of performing such other
The Eleventh Circuit has held:
In practice, the burden temporarily shifts at step five to the Commissioner. See
Jones [v. Apfel], 190 F.3d [1224,] 1228 [(11th Cir. 1999)]. The Commissioner
must produce evidence that there is other work available in significant
numbers in the national economy that the claimant has the capacity to perform.
See id. In order to be considered disabled, the claimant must then prove that
he is unable to perform the jobs that the Commissioner lists. See id. The
The ALJ found that Ms. Everett, who was born in 1968, was a “younger individual.”
(Doc. 8-4 at R.144.) He found Ms. Everett had at least a high school education and could
communicate in English. (Id.) He also found that “[t]ransferability of job skills [was] 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.” (Id.)
The ALJ consulted a vocational expert [VE]; the VE testified that an individual with
Ms. Everett’s RFC and vocational factors could perform jobs that exist in significant
numbers in the national economy, including assembler, product marker, and laundry sorter.
(Doc. 8-3 at R.50-51; doc. 8-4 at R.144-45.) Based on this testimony, the ALJ found Ms.
Everett could make a successful adjustment to perform other work that exists in significant
numbers in the national economy. (Doc. 8-4 at R.145.)
Therefore, the ALJ found that Ms. Everett had not been under a disability at any time
from January 1, 2009, the alleged onset date, through March 7, 2013, the date of his decision.
temporary shifting of the burden to the Commissioner was initiated by the
courts, and is not specifically provided for in the statutes or regulations. See
Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999)(quoting Walker v. Bowen,
834 F.2d 635, 640 (7th Cir. 1987)(“The shifting of the burden of proof is not
statutory, but is a long-standing judicial gloss on the Social Security Act”)).
Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
B. MS. EVERETT’S ISSUE ON APPEAL
Ms. Everett argues, “the ALJ’s RFC findings and rationale are not based on
substantial evidence.” (Doc. 11 at 6.) In her brief, she states:
The ALJ’s RFC assessment on remand was even less restrictive than the
first time when in the June 2010 decision the RFC for light work was at least
compliant with SSR 96-8p addressing postural, manipulative and
environmental restrictions (R. 116-117). On remand the ALJ made a blanket
finding of “light work as defined except she can lift twenty pounds
occasionally” (R. 137) which is merely an element of and not a departure from
the definition of light work pursuant to 20 CFR 404.1567 (b). The rest of the
RFC addressed mental restrictions. The orthopedist ME (R. 256) readily
acknowledged no expertise in the practice of mental health (R. 40). The ALJ
addressed the AC’s concerns about addressing the opinion evidence and
reconsidering mental RFC (R. 427) by continuing to reject the opinions of both
consultative psychologist Dr. Haney as well as treating physician Dr. Long (R
142); and continuing to adopt the non examining MSO from the State Agency
psychologist (R. 143).
The ALJ failed to comply with the AC’s remand order. The ALJ
continued to reject in whole or in part every examining practitioner’s opinion
of record, whether consultative or treating, and finding an RFC for light work
even less restrictive than before without any function by function analysis. He
purported to rely on the opinion of a medical expert who he reported as
testifying to a limited range of light work, when the only restrictions to a full
range of light work (higher than in the first decision), were mental, beyond the
scope of the ME’s expertise.
The ALJ failed to comply with SSR 96-8p requiring a function by
function assessment based upon all of the relevant evidence. The medical
evidence after the first remanded ALJ decision continued to show both upper
and lower spine impairments and limitations objectively worse by MRI
(Id. at 7-9.) The court has reviewed the entire record before the ALJ, as well as the parties’
briefs, and it finds that the Commissioner’s decision is due to be affirmed.
1. Step Two: Claimant’s Impairments
Ms. Everett argues that the ALJ erred at step two of the sequential evaluation by
failing to find she had severe impairments relating to her lumbar spine limitations. (Doc. 11
at R.6.) The ALJ found that Ms. Everett only had severe impairments of cervical disc disease
and major depressive disorder. (Doc. 8-4 at R. 136.) He did not, however, find a medical
impairment arising from any diagnosis related to her lumbar spine.
A severe impairment is one that significantly limits the claimant’s ability to do basic
work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). However, “[n]othing requires that
the ALJ must identify, as step two, all of the impairments that should be considered severe.
Instead, at step three, the ALJ is required to demonstrate that it has considered all of the
claimant’s impairments, whether severe or not, in combination.” Heatly v. Comm’r of Soc.
Sec., 382 Fed. Appx 823, 825 (11th Cir. 2010). Therefore, “Even if the ALJ erred in not
indicating whether [a condition] was a severe impairment, the error was harmless because
the ALJ concluded that [Ms. Everett] had a severe impairment: and that finding is all that
step two requires.” Id. at 824-25 (citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.
1987); Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).
Any error regarding the ALJ’s decision at step two that Ms. Everett did not have a
severe impairment related to her lumbar spine was harmless. The ALJ noted that he had
“considered all symptoms,” specifically stating that Ms. Everett complained that she was
disabled “due to chronic, debilitating pain and dysfunction.” (Doc. 8-4 at R.139.)
The court finds no reason to reverse the decision of the Commissioner based on the
ALJ’s failure to find Ms. Everett had a severe impairment of the lumbar spine.
2. Evaluating Medical & Psychological Opinion Sources
Ms. Everett argues that the ALJ erred by failing to “address[ ] the [Appeals Council’s]
concerns about addressing the opinion evidence and reconsidering mental RFC (R.427) by
continuing to reject the opinions of both consultative psychologist Dr. Haney as well as
treating physician Dr. Long (R.142); and continuing to adopt the non[-]examining MSO from
the State Agency psychologist (R.143).
“Medical opinions are statements from physicians and other acceptable medical
sources that reflect judgments about the nature and severity of the claimant’s impairment.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir. 2011). When evaluating
medical opinions, “the ALJ must state with particularity the weight given to different medical
opinions and the reasons therefore.” Id. at 1179. In determining how much weight to give
each opinion, the ALJ considers several factors, including: (1) whether the doctor has
examined the claimant; (2) whether the doctor has a treating relationship with the claimant;
(3) the extent to which the doctor presents medical evidence and explanation supporting his
opinion; (4) whether the doctor’s opinion is consistent with the record as a whole; (5)
whether the doctor is a specialist; and (6) “other factors.”7 See 20 C.F.R. §§ 404.1527(c);
416.927(c). Indeed, “an acceptable medical opinion as to disability must contain more than
a mere conclusory statement that the claimant is disabled. It must be supported by clinical
or laboratory findings.” Oldham v. Schweiker , 660 F.2d 1078, 1084 (5th Cir. 1981) (citing
20 C.F.R. § 404.1526).
In this Circuit –
Although the testimony of a treating physician is generally entitled to
“substantial or considerable weight,” the ALJ may discount that testimony
when there is “good cause.” See Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997). Good cause exists “where the doctor’s opinion was not
bolstered by the evidence, or where the evidence supported a contrary
finding.” Id. [The court] will not second guess the ALJ about the weight the
treating physician’s opinion deserves so long as he articulates a specific
justification for it. See Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th
Cir. 2005)]. . . . [If] the ALJ’s rationale was adequate, [the court] will not
disturb the credibility determination. See Lewis, 125 F.3d at 1440.
With regard to “other factors” the regulations state:
When we consider how much weight to give to a medical opinion, we will also
consider any factors you or others bring to our attention, or of which we are
aware, which tend to support or contradict the opinion. For example, the
amount of understanding of our disability programs and their evidentiary
requirements that an acceptable medical source has, regardless of the source
of that understanding, and the extent to which an acceptable medical source is
familiar with the other information in your case record are relevant factors that
we will consider in deciding the weight to give to a medical opinion.
20 C.F.R. §§ 404.1527(c)(6); 416.927(c)(6).
Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822-23 (11th Cir. 2015)(emphasis
In this case, the ALJ stated the following regarding the medical evidence of record:
The claimant alleges she cannot work due to chronic, debilitating pain and
dysfunction. She testified she is too jittery to drive and that she hires a friend
to shop for her.
Testifying also was Dr. John Axline, Board Certified Orthopaedist, as the
Medical Expert. Dr. Axline testified, in his opinion and based upon the
medical evidence of record, the claimant complained of migraines, but they
were never properly described in the record. He cited Exhibit 2F where the
claimant complained of headaches but there was no distress. He further
testified that Exhibit 2F noted pupils were a sign of opiate abuse. It also
reflects emergency room noncompliance. He testified that in Exhibit 27F,
there was a description of the claimant had alcohol use, and she had left the
emergency room against medical advice. He testified that there was only disc
degeneration of the lumbar spine. He also testified that there appeared an
incredible request for an increase in pain medications. He testified that Dr.
Long in 17F, noted to be a General Practitioner, gives limited range of
motions of the claimant, but he fails to support his opinions with any
objective medical evidence. Although Dr. Long opined the claimant had a
limited range of motions, the medical records show all normal. Dr. Axline
testified that the claimant had degenerative disc disease of the lumbar spine,
and she has disc disease, but there is no arthritis of the lumbar spine and cites
Exhibit 23F. Dr. Long discussed medication refills by the claimant, her weight
gain and description of pain. He says that although Dr. Long opined the
claimant carry only 5 pounds, Exhibit 24F, the claimant testified she could
easily carry a gallon of milk. Further, Dr. Long recommended that the
claimant was unable to push/pull; there was no he failed to a basis for such
opinion. The claimant has normal balance, normal inner ear, and stooped 90
degrees. The Medical Expert testified that if the claimant does not drive, it is
not because of a medical reason. He said the claimant should not be around
dangerous machinery if using alcohol. Cigarettes have [caused] damage to the
lungs. He opined the “pain” form on page 2 shows medicine side effects but
never a change in medications. Dr. Long listens to the claimant and
documents it but his opinions as to the complaints do not meet objective
The undersigned has also considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
All of the claimant’s impairments have been considered in combination
without regard to whether any impairment if considered separately would be
vocationally relevant. The undersigned adopts the residual functional capacity
of physical limitations and comments from the Medical Expert. He is a Board
Certified Orthopaedist, and although having not examined the claimant, his
opinions are objectively document unlike the opinions of the Dr. Long, the
Medical evidence shows the claimant has underlying medical conditions, but
it does not support her allegations of severe and chronic limitation of function
to the degree that it would preclude the performance of all substantial gainful
activity. An individual’s symptoms are considered along with pertinent sips
and laboratory findings shown in the record. The regulations describe the
weight to be accorded such evidence. Section 404.1528-29 (Title II) and
416.928-29, specifically provide that a person’s statements [alone] are not
enough to establish disability. A finding of disability will not be based on
symptoms. There must be medical signs or laboratory findings showing the
presence of a medical condition that could be reasonably expected to produce
the symptoms alleged.
The claimant was recently admitted to the Lakeland Community Hospital with
complaints of shortness of breath, cough and congestion. However, chest
x-ray revealed no evidence of acute, active or malignant disease and the EKG
revealed normal sinus rhythm. The claimant had also complained of heart
condition but testing in November 2012, show a CT of the brain was negative,
and an Echocardiogram revealed that the left ventricle size was normal and
function appeared normal, with an ejection fraction approximately 80%. There
was no atrial septal defect, ventricular septal defect or mural thrombi seen, and
there was increased LA with mild mitral valve regurgitation and tricuspid
regurgitation was noted. (Exhibit 26F) Thus, the undersigned finds that any
heart condition alleged by the claimant is not severe.
The claimant was treated by [Dr. Long on February 1, 2013] (Exhibit 30F).
The examinations of the claimant by Dr. [Long] noted the claimant was in no
acute distress and was well developed and well nourished. Her neck/thyroid
was supple, full range of motion, no cervical lymphadenopathy. The heart
showed no murmurs, regular rate and rhythm, and the S1, S2 was normal. The
claimant’s lungs were clear to auscultation bilaterally, and her extremities
showed no clubbing, cyanosis, or edema. The claimant was neurologically
nonfocal, motor strength normal upper and lower extremities and sensory
Credibility is not judged solely on the manner in which a person testifies or
otherwise expressed his complaints. If this were not so there would be little
point in the regulatory requirements under section 404.1508, 416.908, which
provide that a person must submit medical evidence in support of a claim for
benefits rather than merely offer verbal and written statements of symptoms.
Given the regulatory provisions of sections 404.1508, 404.1513 and
404.1528-29 & sections 416.908, 416.913 and 416.928-29, credibility must be
assessed primarily based on the extent to which symptoms and allegations are
consistent with and supported by the medical evidence, with particular
attention being paid to the clinical and laboratory findings of the record.
In accordance with Social Security Ruling 96-6p, the undersigned considered
the administrative findings of fact made by the state agency consultants and
weighed these opinions as statements from non-examining expert sources. The
residual functional capacity conclusions reached by the single source decision
maker (Exhibit 7F) is given no weight, as this is not an acceptable medical
opinion. The mental limitations opinion of Guendalina Ravello, Ph.D., is
given considerable weight. Although this consultant is non-examining, and
therefore his opinions do not as a general matter deserve as much weight as
those of examining or treating medical sources, those opinions do deserve
some weight, particularly in a case like this in which there exist a number of
other reasons to reach similar conclusions (as explained throughout this
decision). In this case, the undersigned notes the consultants’ specific findings
were not entirely consistent with the conclusion reached herein as additional
evidence . . . has been submitted. (Exhibit 11F). As such, the undersigned
assigns the opinion of the state agency consultant appropriate weight, insofar
as they are consistent with the evidence of record as a whole and support a
finding that the claimant is ‘not disabled.’
In this case, the opinion of Dr. Haney, a one-time consultative psychologist,
opined that the claimant’s ability to function in most jobs would be
moderately to severely impaired due to physical and emotional limitations
(Exhibit 8F). The undersigned discounts such opinion of Dr. Haney who
saw the claimant only once for a consultative examination. Such opinion
is quite conclusory, providing very little explanation of the evidence relied
on in forming that opinion. In addition, he is a psychologist and not a
medical doctor, and therefore not qualified as an expert to offer a medical
opinion regarding the physical problems of the claimant. It appears that Dr.
Haney apparently relied quite heavily on the subjective report of symptoms
and limitations provided by the claimant, and seemed to uncritically accept
as true most, if not all, of what the claimant reported. Yet, as explained
elsewhere in this decision, there exist good reasons for questioning the
reliability of the claimant’s subjective complaints. In fact, upon mental status
examination he diagnosed major depressive disorder; however, he noted the
claimant is able to manage funds, take care of her mother and her mentally
disabled daughter. The claimant reported one psychiatric hospitalization but
this was remote, when she was in her 20's. She also reported that her
medications help and produce no side effects. Dr. Haney found that her
recent and remote memory appeared intact, and she exhibited no psychotic
symptoms, no auditory or visual hallucinations, and no delusions. Her
conversation appeared logical and goal directed, and he accepted her
self-report that she was depressed. As such, the doctor’s report appears to
contain inconsistencies, and the doctor’s opinion of the claimant’s ability to
function on a job is accorded no weight.
The undersigned rejects the opinions of Dr. Long, who stated in April 2010
that the claimant “is not capable of gainful employment” (Exhibit 17F). The
final responsibility for deciding the issue of disability is reserved to the
Commissioner of the Social Security Administration (Social Security Ruling
96-Sp). Further, the opinion of Dr. Long is not entitled to controlling weight
under Social Security Ruling 96-2p because it is not “well-supported” by
“medically acceptable” clinical and laboratory diagnostic techniques. Dr.
Long is the family doctor, and the Medical Expert who testified that the
limitations of the claimant expressed by Dr. Long are not supported by the
objective records in the file reviewed his medical reports. In addition, these
opinions conflict with the other medical records. In February 2009, Dr.
Vakharia noted that the claimant was in no acute distress (Exhibit 6F).
Musculoskeletal examination revealed minimally weaker handgrip on the
right, 4 to 5/5, compared to 5/5 on the left. Examination showed no muscle
wasting of small joints of the hand and no acute synovitis. The claimant’s gait
was normal and she could walk on the tiptoes and the heels. The undersigned
has adopted the opinion of the medical expert, who had access to all of the
medical evidence, including that which was not available to Dr. Long in his
opinions regarding limitations of the claimant.
A treating physician’s opinion may be disregarded if it is unsupported by
objective medical evidence or is merely conclusory. . . . Dr. Long’s opinions
contain inconsistencies, and the doctor’s opinion is rendered less persuasive.
The undersigned defers to the medical expert over the alleged debilitating
limitations assessed by Dr. Long in July 2012 (Exhibits 17F and 24F). Dr.
[Long] completed these forms at the request of the claimant’s attorney and are
little more than “check mark” or circle forms of several prepared responses.
As noted by the Medical Expert, a Board Certified Orthopaedist, these residual
functional capacities are unsupported and the “pain” and “fatigue” forms are
based entirely upon the subject complaints of the claimant. Dr. Long offered
no objective support of his opinions or reference to any portion of the medical
evidence. Dr. Long’s treatment records therein do not support the alleged
He completed an assessment of the claimant’s
“Fatigue/Weakness,” which is based on subjective findings from statements
from the claimant. None of these forms appears in Dr. Long’s medical
records. These forms are inconsistent with the claimant’s activities of daily
living. The claimant testified that her daytime activities include getting her
children up and on the bus; she folds clothes, watches television, and reads.
This entry shows Dr. Long opined the claimant could “never” push and pull
movements, climb stairs, balance, or stoop, defined as bending downward and
forward from the waist. However, the medical records and other notations in
the record fail to support such extreme limitations. Dr. Long’s opinion that
the claimant was disabled by such limitations does not appear in his notes,
as there is no indication he ever talked to claimant about her ability to work.
Cumulatively, these reasons explain why the undersigned gives little weight
to Dr. Long’s opinions. These opinions offer little more than a conclusory
statements that are unsupported by the medical evidence.
The undersigned has given substantial weight to the opinion of Dr. Norwood,
a consultative neurologist (Exhibit 20F) that the claimant has no neurologic
deficit or evidence of physical neurologic impairment to do work related
activities including sitting, standing walking, and lifting, carrying or handling
objects. He completed a medical source statement for a limited range of
medium work. However, the undersigned discounts his conclusion that the
claimant can sit, stand, and walk only one hour without interruption and stand
or walk only two hours each total because these findings are inconsistent with
the narrative of his report. They are also inconsistent with the Medical
Expert’s opinion who reviewed Dr. Norwood’s report as well as the other
medical evidence in the file.
Accordingly, the undersigned has found that the claimant can perform a
limited range of light work as testified to by the Medical Expert. While the
undersigned understands the claimant has taken on responsibility of adopting
a grandchild, caring for another disabled child and her mother, and such is very
admirable. However, the claimant has a wide range of responsibilities and
these activities reflect the claimant’s ability to perform work at the light level
and the rules and regulations of the Act are followed and the claimant is not
As for the claimant’s mental residual functional capacity, the undersigned
gives great weight to the assessment of the state agency psychological
consultant (Exhibit 11F).
(Doc. 8-4 at 139-44 [emphasis added].)
The ALJ clearly and specifically articulated the weight he accorded the opinions of
Dr. Long and Dr. Haney and his rationale is adequate and supported by substantial evidence.
Therefore, the court will not disturb his findings. See Hunter, 808 F.3d at 822-23.
3. Function-by-Function Assessment
Ms. Everett argues that the ALJ erred in failing to assess her RFC function by function
in accordance with SSR 96-8p. The law does “not require the ALJ to ‘specifically refer to
every piece of evidence in his decision,’ so long as the decision is sufficient to allow us to
conclude that the ALJ considered the claimant’s medical condition as a whole.” Castel v.
Comm’r of Soc. Sec., 355 Fed. Appx. 260, 263 (11th Cir. 2009)(quoting Dyer v. Barnhart,
395 F.3d 1206, 1211 (11th Cir.2005)). In this case, the ALJ’s Decision is sufficient to allow
the court to conclude that he considered Ms. Everett’s condition as a whole. Indeed, Ms.
Everett’s conclusory argument does not demonstrate otherwise. (See doc. 11 at 7-9.)
The court finds, “The ALJ performed a proper RFC function analysis, based on
substantial evidence, and [it] shall defer to his conclusions.” Castel, 355 Fed. Appx. at 263.
For the reasons set forth above, the decision of the Commissioner is due to be
affirmed. An Order affirming the decision of the Commissioner will be entered
contemporaneously with this Memorandum Opinion.
DONE this 31st day of March, 2016.
SENIOR UNITED STATES DISTRICT JUDGE
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