George v. Astrue

Filing 21

Order ent. that the decision of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits and supplemental security income, be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/29/2011. (mjn)

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

TIMOTHY A. GEORGE,

*
*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.

CIVIL ACTION 10-00113-B

ORDER
Plaintiff

Timothy

A.

George

(“Plaintiff”

or

“George”)

brings this action seeking judicial review of a final decision
of the Commissioner of Social Security denying his claim for
disability insurance benefits and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. ''
401 et seq., and 1381 et seq.
consented
proceedings

to

have

in

this

the

On October 15, 2010, the parties

undersigned

case.

(Doc.

17).

conduct

any

and

all

Thus,

this

case

was

referred to the undersigned to conduct all proceedings and order
to entry of judgment in accordance with 28 U.S.C. ' 636(c) and
Fed.R.Civ.P. 73.

(Doc. 18). Oral argument was held on December

15,

careful

2010.

Upon

consideration

of

the

administrative

record and the memoranda of the parties, it is hereby ORDERED
that the decision of the Commissioner be AFFIRMED.

I.

Procedural History
Plaintiff

protectively

filed

an

application

for

supplemental security income benefits on May 11, 2007.1 In his
application, Plaintiff alleges disability since April 15, 2006,
due to left radial mononeuropathy and carpal tunnel syndrome on
the left. (Tr. 53, 101, 148, 153).

Plaintiff’s application was

denied, and he timely filed a Request for Hearing
On

February

26,

2009,

Administrative

Law

(Tr. 77-85).

Judge

David

R.

Murchison (hereinafter “ALJ”) held an administrative hearing,
which was attended by Plaintiff, his attorney, and vocational
expert

(hereinafter

“VE”)

Sue

Berthaume.

(Tr.

44-68).

A

supplemental administrative hearing was held on August 6, 2009.
In attendance at this subsequent hearing were Plaintiff, his
attorney, and VE Gail Jarrell. (Tr. 19-43). On September 14,
2009,

the

ALJ

issued

an

unfavorable

decision

finding

that

Plaintiff is not disabled. (Id. at 10-18). Plaintiff=s request
for review was denied by the Appeals Council (AAC@) on January
(Id. at 1-4).

28, 2010.
decision
404.981.

of

the

The ALJ=s decision became the final

Commissioner

in

accordance

with

20

C.F.R.

'

The parties agree that this case is now ripe for

1

Plaintiff’s initial application for supplemental security
income, filed on June 6, 2006, was denied (Tr. 71-76, 136).

2

judicial review and is properly before this Court pursuant to 42
U.S.C. '' 405(g) and 1383(c)(3).
II.
A.

Issues on Appeal
Whether the ALJ erred in finding that Plaintiff can perform

the jobs of light semi-skilled companion and light unskilled
children’s

attendant

because

the

Dictionary

of

Occupational

Titles (“DOT”) descriptions for these positions are at odds with
Plaintiff’s residual functional capacity (“RFC”)?
B.

Whether the ALJ erred by not performing a “function by

function” analysis of Plaintiff’s limitations in violation of
Social Security Ruling 96-8p?
C.

Whether

the

ALJ

erred

by

failing

to

assign

controlling

weight to the opinions of Plaintiff’s treating physician?
III. Factual Background
Plaintiff was born on September 16, 1960, and was 48 years
old at the time of both administrative hearings. (Tr. 69-70,
139).

Plaintiff testified that he has a 12th grade education,

and that he attended a school that provided “special help.” (Id.
at 30, 206-07). He has previous work experience unloading trucks
and stocking merchandise, taking inventory, stripping paint, and
performing landscaping. (Id.

at 167-174). Plaintiff testified

that he became disabled and stopped working in March 2006 due to
pain in his left arm. (Tr. 24, 50). Plaintiff indicated that his
worst problems are pain in his left arm and back, and that he
3

takes Darvocet M100 for the pain. (Id. at 24-25, 49).

The

record reflects that Plaintiff also takes Elavil at bedtime,
prednisone, hydrocodone, and carisoprodol2. (Id. at 166, 224).
Plaintiff

also

testified

that

he

is

being

treated

for

depression, and that he does not have any side effects from his
medication.

(Id.

at

26-27).

In

addition,

Plaintiff

testified

that he injured his right foot in a motorcycle accident years
earlier, and that he has sciatic nerve damage and Hepatitis B
(Id. at 29, 49, 58). Plaintiff further testified that he lives
with his 82 year old mother, whom he helps to care for. (Tr.
48). According to Plaintiff, he is able to vacuum, take out the
trash, shop, shave, bathe and dress himself, do laundry and
drive;

however,

it

takes

him

longer

to

perform

these

tasks

because he can only use his right hand. (Id. at 49, 161-63)3.

2

Carisoprodol, a muscle relaxant, is used with rest,
physical therapy, and other measures to relax muscles and
relieve pain and discomfort caused by strains, sprains, and
other muscle injuries. See
www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000717(last visited
November 1, 2010).
3

In a subsequent physical activities questionnaire,
Plaintiff asserts that he cannot perform any household chores
other than cooking, and that while he is able to take showers
and shave, he needs help getting dressed and washing his hair.
(Tr. 200, 202, 205).

4

IV.

Analysis
A.

Standard Of Review

In reviewing claims brought under the Act, this Court=s role
is a limited one.
1)

whether

the

The Court=s review is limited to determining
decision

of

the

Secretary

is

supported

by

substantial evidence and 2) whether the correct legal standards
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th

were applied.
Cir. 1990).4
evidence,

A court

or

Commissioner.
1986).

may not decide the facts anew, reweigh the

substitute

its

judgment

for

that

of

the

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.

The Commissioner=s findings of fact must be affirmed if

they are based upon substantial evidence.

Brown v. Sullivan,

921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler,
703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial

evidence is defined as “more than a scintilla but less than a
preponderance”
reasonable

and

person

conclusion[]@).

consists
would

In

of

accept

determining

Asuch

relevant

evidence

as

adequate

to

whether

as

a

support

a

substantial

evidence

exists, a court must view the record as a whole, taking into
account

evidence

favorable,

Commissioner’s decision.

as

well

as

unfavorable,

to

the

Chester v. Bowen, 792 F.2d 129, 131

4

This Court’s review of the Commissioner=s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
5

(11th Cir. 1986); Short v. Apfel, 1999 U.S. DIST. LEXIS 10163 (S.D.
Ala. 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

416.912.
substantial

prove

his

disability.

20

C.F.R.

''

404.1512,

Disability is defined as the “inability to do any
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 twelve months.”
42 U.S.C. '' 423(d)(1)(A), 404.1505(a), 416.905(a).

The Social

Security regulations provide a five-step sequential evaluation
process for determining if a claimant has proven her disability.
20 C.F.R. '' 404.1520, 416.920.5

5

The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
impairment or combination of impairments. If, at the third step,
the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; (4) the claimant=s
age, education and work history. Id. at 1005. Once a claimant
meets this burden, it becomes the Commissioner=s burden to prove
(Continued)
6

In the case sub judice, the ALJ determined that Plaintiff
has

not

engaged

application

in

date.

substantial
(Tr.

14).

gainful
The

ALJ

activity
concluded

since
that

his

while

Plaintiff has the severe impairments of depression, bilateral
carpal

tunnel

disease,

syndrome,

sciatica,

and

left

radial

Hepatitis

B,

mononeuropathy,
they

do

not

cervical
meet

or

medically equal the criteria for any of the impairments listed
in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulations No. 4.
at 14).

(Id.

The ALJ further found, based on the record evidence,

that Plaintiff retains the residual functional capacity (“RFC”)
to:
lift and carry up to 10 pounds frequently
and 20 pounds occasionally with his right
upper extremity and less than 1 pound
frequently and 5 pounds occasionally with
his left upper extremity; and stand and walk
for 6 hours during an 8-hour workday; and
sit for 6 hours during an 8-hour workday.
The claimant is unable to engage in fine
manipulation with the left upper extremity,
and can engage in only occasional grasping
with that hand; he can engage in frequent

at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
significant numbers in the national economy, given the claimant=s
residual functional capacity, age, education, and work history.
Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
If the
Commissioner can demonstrate that there are such jobs the
claimant can perform, the claimant must prove inability to
perform those jobs in order to be found disabled.
Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
7

grasping and fine manipulation with the
right upper extremity; engage in occasional
stooping, crawling, and climbing. Claimant
is limited to understanding, remembering,
and carrying out simple, one and two step
tasks and instructions.
(Id. at 14). The ALJ next determined that Plaintiff has no past
relevant work, but found, based on the testimony of the VE, that
Plaintiff can perform other work existing in significant numbers
in

the

national

attendant jobs.

economy,

namely

the

companion

and

children

Thus, he is not disabled. (Tr. 16-17).

The relevant evidence of record includes treatment records
from the Stanton Road Clinic. On April 27, 2006, Plaintiff had a
nerve conduction study, which found left radial mononeuropathy
with lesion being distal to the innervations of the triceps
muscle and mild to moderate carpal tunnel syndrome. (Id. at 246254).
The record also reflects that Plaintiff has been treated
by Timothy Peter Ahmadi, M.D. (“Dr. Ahmadi”), since at least
2003. (Id. at 275)
Food

Stamp

Program

On December 12, 2008, Dr. Ahmadi completed a
Request

for

Medical

Information

form

for

Plaintiff, wherein he opined that Plaintiff suffers from left
radial neuropathy, and that Plaintiff is permanently unable to
work. (Id. at 274)
Dr. Ahmadi completed a pain questionnaire dated January 12,
2009 (Tr. 275-276).

In the questionnaire, Dr. Ahmadi opined

8

that

Plaintiff’s

pain

will

distract

him

from

adequately

performing daily activities or work, and that physical activity
will greatly increase his pain and cause distraction from task
or total abandonment of task.

Dr. Ahmadi further opined that

Plaintiff is totally restricted from work, that he is unable to
use his upper extremity, and that Plaintiff’s pain has been at
the present level since 2006. (Id.)
Dr. Ahmadi’s treatment notes dated January 26, 2009 reflect
that Plaintiff continues to experience pain and discomfort on
the

left

side,

that

he

is

unable

to

use

his

left

hand

adequately, and that other than the problem with the left hand,
Plaintiff is medically stable.
with

pain

in

the

left

Dr. Ahmadi diagnosed Plaintiff

wrist,

back

pain,

left

radial

mononeuropthy, and mild to moderate carpal tunnel syndrome on
the left side, and opined that Plaintiff could not engage in
gainful employment due to limited education and the inability to
use his left hand adequately. (Tr. 299).
Dr. Ahmadi also completed a Physical Capacities Evaluation
form in which he opined that Plaintiff is unable to bend, reach,
or squat, and is limited to 20 minutes of sitting in an 8 hour
day. (Id. at 300). He also opined that Plaintiff can lift up to
five pounds, carry up to ten pounds, and that he could not
engage in simple grasping, fine manipulation, pushing or pulling
with his left hand. (Id.)
9

Counselor John Marshall, III, MS, evaluated Plaintiff on
January 12, 19, and 26, 2009. (Id. at 289). On January 19, 2009,
Plaintiff

was

administered

the

Wechsler

Adult

Intelligence

Scales – Third Edition to measure cognitive functioning. (Id. at
291). Assessment revealed that Plaintiff has a Full Scale IQ of
89, which is in the low average range when compared to his age
peers. Plaintiff also showed a Verbal IQ of 91, which is in the
average range, and a Performance IQ of 87, which is in the low
average range. (Id. at 291). During the Assessment, Plaintiff
was also given the Wide Range Achievement Test and the Minnesota
Multiphasic Personality Inventory. According to Mr. Marshall,
Plaintiff’s scores would indicate a propensity toward diagnoses
such

as

generalized

anxiety

disorder,

histrionic

personality

disorder, or panic disorder. (Id. at 293).
Mr.

Marshall

restrictions

in

opined

his

that

Plaintiff

activities

in

experiences

day-to-day

life,

moderate
and

that

Plaintiff’s ability to maintain consistent social functioning
and his ability to complete tasks in a timely manner would be
mildly to moderately limited due to his varying levels of pain.
He

also

opined

functioning

that

would

Plaintiff’s

cause

mild

to

low

average

moderate

intellectual

difficulty

in

remembering instructions, that Plaintiff might experience mild
difficulties

in

performing

simple

tasks,

and

that

Plaintiff

would have a marked problem completing a normal day of work or
10

job related activities, especially on a full-time basis. (Id. at
294). Mr. Marshall opined that Plaintiff’s assessment revealed a
“Learning Disorder, Not Otherwise Specified.” (Id.)
At the request of the Agency, Todd D. Elmore, M.D. (“Dr.
Elmore”) performed a consultative evaluation on May 4, 2009.
The evaluation included an NCV and EMG. Dr. Elmore noted that
Plaintiff’s
syndrome,

tests

and

revealed

that

the

EMG

mild
of

his

bilateral
left

carpal

upper

tunnel

extremity

was

nearly normal but showed some decreased recruitment in his left
brachioradialis,

extensor

digitorum,

and

triceps,

which

according to Dr. Elmore, could be due to radial nerve injury or
poor effort. Dr. Elmore saw scant evidence of acute denervation
or of any severe chronic denervation. Finally, Dr. diagnosed
Plaintiff

with

bilateral

carpal

tunnel

syndrome,

left

(nondominant) radial nerve palsy with good recovery and minimal
sign of denervation on EMG, inconsistent left arm weakness, back
pain, and cigarette smoking. Dr. Elmore opined that Plaintiff
could work , particularly a sedentary job. (Id. at 335-340).

He

also

he

completed

a

physical

capacities

evaluation

wherein

opined that Plaintiff can frequently lift and carry up to 20
pounds, and that Plaintiff cannot use his left hand for fine
manipulation. (Id. at 340).
The

record

reflects

that

on

May

18,

2009,

Plaintiff

underwent a mental evaluation by John Davis, PhD (“Dr. Davis”).
11

(Id. at 342-349). At the evaluation, Dr. Davis noted that there
was

nothing

unusual

about

Plaintiff’s

gait,

that

Plaintiff

denied any recent mental health treatment, and that Plaintiff
reported

that

he

repeated

3rd

and

11th

grades

and

was

in

learning disabled classes in school. (Id. at 345-46). Dr. Davis
opined that Plaintiff was depressed and that Plaintiff’s ability
to

function

in

communicatively,

an

age

adaptively,

appropriate

manner,

behaviorally,

and

cognitively,
socially

was

mildly to moderately impaired. He also opined that Plaintiff’s
concentration, persistence and pace and his ability to carry
out, understand, and remember instructions were likewise mildly
to moderately impaired. (Id. at 349).
1.
Whether the ALJ erred in finding
that Plaintiff can perform
the
jobs
of companion and children’s attendant
because
their
descriptions
in
the
Dictionary
of
Occupational
Titles
(“DOT”) are at
odds
with
Plaintiff’s
residual
functional
capacity (“RFC”)?
Plaintiff contends the two jobs identified by the VE and
relied

upon

by

the

ALJ,

namely

companion

and

children’s

attendant, have reasoning levels that exceed his RFC. According
to Plaintiff, his RFC limits him to carrying out simple one and
two step tasks and instructions; however, the DOT places the
reasoning component of the General Educational Development (GED)

12

level6 for the companion position at a 3, and for the children’s
attendant position at a 2. Plaintiff also asserts that per the
DOT, the caretaker/companion position requires frequent handling
and fingering; however, his RFC restricts him from fingering
with

his

left

hand.

Plaintiff

thus

contends

that

the

VE’s

testimony was inconsistent with the DOT, and that the ALJ failed
to resolve the conflict. Defendant counters that the ALJ did not
err because the ALJ properly relied on the VE's explanation for
any conflict. Specifically, Defendant argues that after the VE
identified jobs that Plaintiff could perform, she testified that
her testimony was consistent with the DOT; thus, the ALJ did not

6

The GED level
of a given job represents "those aspects of
education (formal and informal) which are required of the worker
for satisfactory job performance. This is education of a general
nature which does not have a recognized, fairly specific
occupational objective. . . . The GED Scale is composed of three
divisions: Reasoning Development, Mathematical Development, and
Language Development." See DOT Appendix C, 1991 WL 688702. GED
reasoning level 2 signifies the ability to "[a]pply commonsense
understanding to carry out detailed but uninvolved written or
oral instructions. Deal with problems involving few concrete
variables in or from standardized situations." Id. GED reasoning
level
3
signifies
the
ability
to
"[a]pply
commonsense
understanding to carry out instructions furnished in written,
oral, or diagrammatic form. Deal with problems involving several
concrete variable in or from standardized situations." Id. The
Commissioner's rulings do not correlate GED levels with any
particular skill level of work.

13

violate SSR 00-4p so long as the ALJ asked the VE to identify
any inconsistencies.
Plaintiff’s

contention

that

the

reasoning

levels

of

the

companion and children’s attendant positions exceed his RFC is
without merit. Several courts have concluded that jobs with a
reasoning level of 2 are consistent with simple, unskilled work.
For example, the court in Meissl v. Barnhart, 403 F. Supp.2d
981, 984-85 (C.D. Cal. 2005), reasoned as follows:
The ALJ's limitation for the Plaintiff, with
respect to an appropriate reasoning level,
was that she could perform work which
involved
simple,
routine,
repetitive,
concrete, tangible tasks. Therefore, the
DOT's level two reasoning requirement did
not conflict with the ALJ's prescribed
limitation. Although the DOT definition does
state
that
the
job
requires
the
understanding
to
carry
out
detailed
instructions, it specifically caveats that
the instructions would be uninvolved-that
is, not a high level of reasoning.
403 F. Supp. 2d at 984-85 (quoting Flaherty v. Apfel, 182 F.
Supp. 2d 824, 850 (D. Minn. 2001). See also Hackett v. Barnhart,
395 F. 3d 1168, 1176 (10th Cir. 2005)(holding that "level-two
reasoning

appears

more

consistent

with

Plaintiff's

RFC"

to

perform "simple and routine work tasks"); Money v. Barnhart, 91
Fed. Appx. 210, 215(3rd Cir. 2004)("Working at reasoning level 2
would

not

contradict

the

mandate

that

her

work

be

simple,

routine and repetitive."); Anderson v. Astrue, 2011 U.S. Dist.
LEXIS

97440(S.D.

Ala.

Aug.

30,
14

2011)(no

conflict

between

VE

testimony and DOT where at least one of the jobs identified by
VE had reasoning level of 2, and the plaintiff was limited to
simple

routine

tasks

involving

no

more

than

simple,

short

instructions). In this case, Plaintiff has failed to establish a
conflict

with

respect

to

the

reasoning

levels

because

the

children’s attendant position has a reasoning level of 2, which
is consistent with carrying out simple, one and two step tasks
and instructions.
Additionally, the undersigned finds that even assuming that
a conflict existed between the VE’s testimony and the DOT with
respect

to

whether

the

companion

position

requires

frequent

handling and fingering, Plaintiff has not established that the
ALJ erred with respect to Social Security Ruling 00-4p, 2000 SS
R Lexis 8.

That ruling provides, in relevant part, as follows:
Occupational Evidence provided by a VE or VS
generally should be consistent with the
occupational information supplied by the
DOT. When there is an apparent unresolved
conflict between VE or VS evidence and the
DOT,
the
adjudicator
must
elicit
a
reasonable explanation for the conflict
before relying on the VE or VS evidence to
support a determination or
decision about
whether the claimant is disabled. At the
hearing level, as part of the adjudicator's
duty to fully develop the record, the
adjudicator will inquire, on the record, as
to whether or not there is such consistency.

During the administrative hearing, the ALJ expressly asked
the VE “Did you deviate in any way from the way [the children’s
15

attendant and companion positions] are described in the [DOT},”
and the VE testified that she did not. (Tr. 33). In addition,
Plaintiff’s

counsel

did

not

allege

that

there

existed

any

conflicts nor did she question the VE regarding any purported
conflicts.

Because no conflicts were identified, the ALJ was

not required under SSR 00-4p to elicit a reasonable explanation
from the VE as to any apparent conflicts, and did not err in
relying on the VE’s testimony to conclude that Plaintiff is
capable of performing the positions. See Cammon v. Astrue, 2009
U.S. Dist. LEXIS 92293 (N.D. Ga. October 2, 2009)(the ALJ did
not err when she relied on the testimony of the VE where the ALJ
had no reason to believe that there was any conflict between the
VE testimony and the DOT and counsel did not question the VE
about

any

alleged

conflict.);

Bucholtz

v.

Barnhart,

98

Fed.

Appx. 540, 546 (7th Cir. 2004)(finding that “[a]though the []ALJ
has a duty to question a []VE about any inconsistencies with the
[]DOT

and

resolve

that

conflict

before

relying

on

the

VE's

testimony, counsel has the responsibility for raising the issue
if the ALJ does not.”).
Assuming arguendo that a conflict does exist between the
VE’s testimony and the DOT, in this Circuit, the VE’s testimony
trumps the DOT. Following promulgation of SS Ruling 00-4p, a
panel of the Eleventh Circuit was presented with the question of
whether an ALJ erred when he relied on the testimony of a VE
16

without

eliciting

an

explanation

about

an

alleged

“apparent

unresolved conflict” between the testimony of the VE and the DOT
as required by SS 00-4p.

Miller v. Commissioner, 246 Fed. Appx.

660(llth Cir. 2007)(unpublished).

In rejecting the plaintiff’s

claim, the panel held “[e]ven assuming that an inconsistency
existed between the testimony of the Vocational Expert and the
DOT,

the

ALJ

did

not

err

when,

without

first

resolving

the

alleged conflict, he relied on the testimony of the Vocational
expert.

Our

precedent

establishes

that

the

testimony

of

a

vocational expert “trumps’ an inconsistent provision of the DOT
in this circuit”. Id.(quoting Jones v. Apfel, 190 F.3d 1224,
1229-30 (llth Cir. 1999); See also Hurtado v. Comm’r of Soc.
Sec.,

2011

Comm’r

of

U.S.
Soc.

App.

LEXIS

8474

(llth

Sec.,

2011

U.S.

App.

Cir.
LEXIS

2011);
8146

Jones

(llth

v.

Cir.

2011)("The ALJ was permitted to base his findings about these
three jobs exclusively on the VE's testimony, irrespective of
any inconsistency with the DOT, and was not required to seek
further

explanation.").

Accordingly,

Plaintiff’s

claim

must

fail.
2.
Whether the ALJ erred by not
performing a “function by
function”
analysis of Plaintiff’s limitations in
violation
of
Social
Security
Ruling 96-8p?
Plaintiff contends that the ALJ erred by not performing a
“function

by

function”

analysis
17

of

his

abilities

and

limitations,

specifically

that

the

ALJ

failed

to

discuss

Plaintiff’s ability to reach, push, or pull in light of the
limitations to Plaintiff’s left hand in violation of SSR 96-8p.
Further, Plaintiff asserts that jobs in the light exertional
category require reaching according to the DOT. The Commissioner
responds

that

the

RFC

determined

by

the

ALJ

included

requirements for lifting and carrying which arguably apply to
Plaintiff’s ability to push and pull. The Commissioner contends
that the ALJ's RFC finding is supported by substantial evidence
and that the ALJ provided a thorough statement of Plaintiff's
functional abilities which satisfied the requirements of SSR 968p.
"The RFC assessment is a function-by-function assessment
based

upon

all

of

the

relevant

evidence

ability to do work-related activities."
v.

Barnhart,

220

2007)(unpublished),

Fed.
the

Appx.

Eleventh

of

an

individual's

SSR 96-8p.

957,
Circuit

959-60
held

In Freeman
(11th

that

an

Cir.
ALJ's

failure to "more specific[ally] and explicit[ly]" set forth his
findings with respect to a claimant's "functional limitations
and work-related abilities on a function-by-function basis" is
excusable where it is apparent the ALJ did "consider all of the
evidence.";

See

also

Chavez

v.

Astrue,

276

Fed.

Appx.

627,

627-28 (9th Cir. 2008) ("Chavez claims that the ALJ committed
legal

error

by

determining

his
18

mental

residual

functional

capacity without performing a function-by-function assessment as
required by Social Security Ruling 96-8p, 1996 SSR LEXIS 5.
This claim fails because the ALJ considered and noted 'all of
the

relevant

evidence'

work-related

bearing

on

activities,'

Chavez's

as

'ability

required

to

by

do
the

function-by-function analysis.") (internal citations omitted).
In this case, the ALJ set forth Plaintiff’s RFC as the
ability to:
lift and carry up to 10 pounds frequently
and 20 pounds occasionally with his right
upper extremity and less than 1 pound
frequently and 5 pounds occasionally with
his left upper extremity; and stand and walk
for 6 hours during an 8-hour workday; and
sit for 6 hours during an 8-hour workday.
The claimant is unable to engage in fine
manipulation with the left upper extremity,
and can engage in only occasional grasping
with that hand; he can engage in frequent
grasping and fine manipulation with the
right upper extremity; engage in occasional
stooping, crawling, and climbing. Claimant
is limited to understanding, remembering,
and carrying out simple, one and two step
tasks and instructions.
(Tr. 14). In addition, the ALJ determined that Plaintiff could
perform a full range of light work but noted, however, that
Plaintiff’s ability to perform all or substantially all of the
requirements of that level of work was impeded by additional
limitations.
supporting

(Tr.

such

17).

finding,

The

ALJ

including

summarized
the

medical

the

evidence

evidence

and

Plaintiff=s testimony regarding his daily activities. (Tr. 1119

14).

Based upon a review of the record, the undersigned finds

that substantial evidence supports the ALJ=s RFC determination.
In reaching the RFC

determination, the ALJ properly and clearly

considered the record evidence regarding Plaintiff=s functional
capabilities,

including

Plaintiff=s

own

assertions

and

the

medical records, and so complied with SSR 96-8p, and discussed
Plaintiff’s ability to lift, carry, stand, walk, and sit, as
well

as

the

limitations

in

his

ability

to

engage

in

fine

manipulation and grasping with his left hand. The fact that the
ALJ did not expressly address each functional ability, such as
the ability to reach, push or pull is of no moment where the
record clearly demonstrates that the ALJ considered all of the
evidence, and further establishes that Plaintiff has the RFC set
forth by the ALJ.
3.
Whether the ALJ erred by failing
to assign controlling
weight to the
opinions
of
Plaintiff’s
treating
physician?
Plaintiff contends that that the ALJ erred in not assigning
controlling
physician,

weight
Dr.

to

Ahmadi,

the

opinions

which

are

of

Plaintiff’s

contained

in

treating
the

pain

questionnaire. In the questionnaire, which was completed January
12, 2009 (Tr. 275-276), Dr. Ahmadi

opined that Plaintiff’s left

carpal tunnel syndrome and left radial nerve neuropathy will
distract

him

from

adequately

performing

20

daily

activities

or

work, that physical activity would increase his pain, and that
his pain would cause him to be unable to perform at a productive
level of work. Plaintiff submits that Dr. Ahmadi’s opinions are
not

refuted

by

other

record

evidence

and

that

Plaintiff’s

diagnoses are confirmed by Dr. Elmore. The Commissioner responds
that

the

ALJ

complied

with

Agency

regulations

and

Eleventh

Circuit law when he gave no weight to Dr. Ahmadi’s opinions that
Plaintiff was permanently unable to work as the opinions are
conclusory and based on a visit made months earlier.
Circuit case law provides that “[t]he ALJ must generally
give

the

opinion

of

a

treating

physician

‘substantial

or

considerable weight’ absent a showing of good cause not to do
so.” Newton v. Astrue, 297 Fed. Appx. 880, 883 (11th Cir. 2008).
See also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)
(a treating physician’s opinion must be given substantial weight
unless

good

Circuit

has

physician’s
contrary

to

cause

is

shown

to

concluded

“good

cause”

opinion
the

is

not

evidence,

the

contrary).
exists

bolstered
or

when

by

the

The

Eleventh

a

treating

when
the

evidence,

treating

is

physician’s

opinion is inconsistent with his or her own medical records.
Phillips, 357 F.3d at 1240-41. If an ALJ elects to disregard the
medical opinion of a treating physician, then he or she must
clearly articulate the reasons for so doing. Id. The ALJ may
also

devalue

the

opinion

of

a
21

treating

physician

where

the

opinion is contradicted by objective medical evidence. Ellison
v.

Barnhart,

355

curiam), citing

F.3d

1272,

1275-76

(11th

Cir.

2003)

(per

Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th

Cir. 1981) (holding that “the ALJ is free to reject the opinion
of

any

physician

when

the

evidence

supports

a

contrary

conclusion”) (citation omitted); Kennedy v. Astrue, 2010 U.S.
Dist. LEXIS 39492, *22-23 (S.D. Ala. Apr. 21, 2010) (“[I]t is
the ALJ's duty, as finder of fact, to choose between conflicting
evidence[,] and he may reject the opinion

of any physician when

the evidence supports a finding to the contrary.”).
As noted above, the ALJ concluded that Plaintiff has the
severe

impairments

syndrome,
sciatica,

left
and

of

radial

Hepatitis

depression,

bilateral

mononeuropathy,
B.

In

doing

so,

carpal

cervical
however,

tunnel
disease,
the

ALJ

declined to assign any weight to the findings of Dr. Ahmadi in
the

pain

questionnaire

because

he

determined

that

they

were

“conclusory; internally inconsistent; at odds with the findings
of Dr. Elmore and the findings and observations of Dr. Davis;
inconsistent with the claimant’s activities of daily living; and
the treatment sought and received.” (Tr. 15-16).
Based upon a careful review of the record, the undersigned
finds that substantial evidence supports the ALJ's decision not
to assign controlling weight to the opinions of Dr. Ahmadi. In
this case, the ALJ reasonably discredited Dr. Ahmadi’s opinions
22

after carefully examining the record as a whole. See Oldham v.
Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (an ALJ is free
to

reject

the

opinion

of

any

physician

where

the

evidence

supports a contrary conclusion).
A review of the record evidence reflects Dr. Ahmadi’s
treatment records, (Tr. 272-76, 299-300), provide scant evidence
in support of his conclusion that Plaintiff is unable to work
and reflect minimal objective findings. See Crawford v. Comm'r
of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (treating
physician’s report can be discounted when it is unaccompanied
“by objective medical evidence or wholly conclusory”); Choate v.
Barnhart, 457 F.3d 865, 870 (8th Cir. 2006) (ALJ permitted to
disregard a treating physician’s opinion regarding limitations,
when no limitations were stated in the physician's treatment
notes).
Dr.

Moreover, the record reflects that a mere 5 days before

Ahmadi

completed

the

pain

questionnaire

which

contains

extreme pain limitations, Plaintiff was treated at Springhill
Medical Center on January 7, 2009. While Plaintiff reported that
he had been experiencing back and leg pain for two weeks, he did
not report any pain in his left upper extremity. Plaintiff was
diagnosed with sciatica, and upon discharge, it was noted that
“Patient is pain free.”

(Tr. 278-88).

In addition, Dr. Elmore examined Plaintiff and conducted an
NCV and EMG on him. (Tr. 334-340). Dr. Elmore noted that he saw
23

little evidence of acute denervation or of any severe chronic
denervation, and noted that mostly, Plaintiff had good motor
units

throughout.

Dr.

Elmore

diagnosed

Plaintiff

with

mild

bilateral carpal tunnel syndrome and left (nondominant) radial
nerve

palsy,

and

observed

that

Plaintiff

was

“in

no

acute

distress” and that his gait and station were normal. (Id. at
335). Dr. Elmore opined that Plaintiff could work, particularly
a sedentary job, that he probably has some dexterity issues with
his left hand, and that Plaintiff could not use his left hand
for repetitive action such as fine manipulation. (Id. at 340).
Plaintiff was also evaluated by Dr. Davis who diagnosed him
with depression and opined that his mental condition will likely
improve or deteriorate in correlation with his general medical
condition.

He

further

found

that

Plaintiff’s

mental

capacity

should be considered as an add-on factor but is not in and of
itself disabling. (Id. at 349). Dr. Davis also observed that
there

was

“nothing

unusual

about

[Plaintiff’s]

posture....” (Id. at 345); see also (Id. at 346).

gait

[or]

Additionally,

as noted supra, Plaintiff reported that he is able to vacuum,
take out the trash, shop, shave, bathe and dress himself, do
laundry and drive; however, it takes him longer to perform these
tasks because he can only use his right hand. (Id. at 49, 16163).

24

Accordingly, based on the record evidence, the undersigned
finds

that

the

ALJ

set

forth

good

cause

for

rejecting

the

extreme pain limitations set forth in the pain questionnaire
completed

by

including

the

Dr.

Ahmadi,

medical

and

records

that

and

substantial

Plaintiff’s

evidence,

report

of

his

daily activities, supports the ALJ’s finding that Plaintiff is
not disabled.
V.

Conclusion
For the reasons set forth, and upon careful consideration

of the administrative record and memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner of Social
Security,

denying

Plaintiff=s

claim

for

disability

insurance

benefits and supplemental security income, be AFFIRMED.
DONE this the 29th day of September, 2011.
/s/ SONJA F. BIVINS____
UNITED STATES MAGISTRATE JUDGE

25