Reed v. Astrue
Order that the decision of the Commissioner of Social Security denying plaintiff's benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 8/22/2012. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
KIMBERLY C. REED,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
) CIVIL ACTION NO. 11-00372-N
Plaintiff, Kimberly C. Reed (“Reed”), brings this action seeking judicial review of
a final decision of the Commissioner of Social Security denying her application for
Supplemental Security Income Benefits (“SSI”) from May 16, 2008 (Tr. 79. This action
has been referred to the undersigned Magistrate Judge to conduct all proceedings and
order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed. R.Civ.P. 73
(doc. 22) and pursuant to the consent of the parties (doc. 21). The matter came on for
oral arguments on August 20, 2012, at which Colin Kemmerly appeared for the plaintiff
and Assistant United States Attorney Patricia Beyer represented the Commissioner. Upon
consideration of the parties’ respective arguments, the administrative record (doc. 12) and
the parties’ respective briefs (docs. 13 and 16), the undersigned concludes that the
decision of the Commissioner is due to be AFFIRMED.
On October 29, 2008, Reed filed an application under Title XVI of the Social
Security Act (the Act), 42 U.S.C. §§ 1381-83c supplemental security income. (Tr. 7984). Reed alleged that she became disabled on May 16, 2008, due to severe depression
with bipolar disorder and attention deficit disorder (ADD) (Tr. 91). Reed later claimed a
back problems and migraines (Tr. 38). Reed’s claim was denied on December 31, 2008
(Tr. 54-59). Reed’s request for a hearing was timely filed on January 19, 2009. (Tr. 6466). A hearing before Administrative Law Judge (“ALJ”) was held on December 11,
2009 (Tr. 29-52), at which Reed (Tr. 35-46) as well as Sue Berthaume, a vocational
expert (Tr. 47-51), testified. Reed was born on November 15, 1972, and was 37 years
old at the time of his administrative hearing before the ALJ. (Tr. 35).
On January 29, 2010, the ALJ entered an unfavorable decision (Tr. 11-28). The
Appeals Council denied review of the ALJ’s decision on May 25, 2011 (Tr. 1-5), making
the November 23, 2010 decision the final administrative decision. See 20 C.F.R. §§
404.981, 416.1481.1 Reed now timely appeals from that decision and all administrative
remedies have been exhausted.
Issue on Appeal.
Whether the ALJ erred by rejecting the opinion of Reed’s treating
physician that Reed was disabled due to her back pain.
All references to the Code of Federal Regulations (C.F.R.) are to 1 the 2011 edition
Standard of Review.
Scope of Judicial Review.
In reviewing claims brought under the Social Security Act, this Court's role is a
limited one. Specifically, the Court's review is limited to determining: 1) whether the
decision is supported by substantial evidence, and 2) whether the correct legal standards
were applied. See, 42 U.S.C. § 405(g); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Thus, a court may not
decide the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996); Sewell v. Bowen,
792 F.2d 1065, 1067 (11th Cir. 1986). Rather, the Commissioner's findings of fact must
be affirmed if they are based upon substantial evidence. Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997); Chater, 84 F.3d at 1400; Brown v. Sullivan, 921 F.2d 1233,
1235 (11th Cir. 1991). See also, Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990)(“Even if the evidence preponderates against the Secretary's factual findings, we
must affirm if the decision reached is supported by substantial evidence.”); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that substantial evidence is
defined as “more than a scintilla but less than a preponderance,” and consists of “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion[ ]”). In determining whether substantial evidence exists, a court must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
Commissioner's decision. Lynch v. Astrue, 358 Fed.Appx. 83, 86 (11th Cir. 2009);
Martino v. Barnhart, 2002 WL 32881075, * 1 (11th Cir. 2002); Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). Even where there is substantial evidence to the contrary
of the ALJ's findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ's decision. Barron v. Sullivan, 924 F.2d
227, 230 (11th Cir. 1991).
Statutory and Regulatory Framework.
The Social Security Act's general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line. Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act, which defines disability in virtually identical
language for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20
C.F.R. §§ 404.1505(a), 416.905(a). A person is entitled to disability benefits when the
person is unable “to engage in 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 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental
impairment” is one 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 Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§
404.1520, 416.920 (2010). The Eleventh Circuit has described the evaluation to include
the following sequence of determinations:
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?2
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). See also Bell v. Astrue, 2012
WL 2031976, *2 (N.D. Ala. May 31, 2012); Huntley v. Astrue, 2012 WL 135591, *1
(M.D. Ala. Jan. 17, 2012).
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's
Residual Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242–43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, app. 2 (“grids”),or hear testimony
from a vocational expert (VE). Id. at 1239–40.
Reed’s vocational background.
Reed was not yet 39 years old on the date of the ALJ’s decision (Tr. 35,79). She
completed the 9th grade (Tr. 35), and last worked in 2005 as a “substitute janitor for the
school board.” (Tr. 35). Prior to that time, Reed worked “about a month” as a waitress.
The record contains evidence that Reed has been diagnosed and treated for sleep
apnea (Tr. 391-95, 402-03, 420-21)3; bilateral carpal tunnel syndrome, which was
resolved with carpal tunnel release surgery on both wrists (Tr. 176-202); headaches (Tr.
402-03); and depression and bipolar disorder, resulting in psychiatric hospitalizations (Tr.
203-68, 296-312, 332, 335-73).
This appeal principally involves Reed’s complaint of back pain. In support of the
contention that the ALJ committed reversible error, Reed relies on the Clinical
Assessment of Pain form completed on December 4, 2009, by her treating physician, Dr.
Barbara Mitchell (Tr. 333-34). On that form, Dr. Mitchell reports, in pertinent part, as
follows: she had treated Reed for over seven years; Reed had a physical condition that
was the underlying cause of Reed’s pain, although there were no clinical or laboratory
findings to support the diagnosis of any physical condition which was the underlying
cause of Reed’s pain; the pain will distract Reed from adequately performing daily
activities or work; physical activity, such as walking, standing, bending and stooping will
“greatly increase” Reed’s pain; pain can be expected to be “severe” and limit Reed’s
ability to perform her previous work; and Reed cannot engage in any form of gainful
employment. (Tr. 333-34). Dr. Mitchell does not identify any physical condition
Reed was diagnosed with sleep apnea on July 13, 2006 (Tr. 391, 403, 420-21). She was
“treated effectively with nasal CPAP [and] provided with a CPAP machine to use at home.” (Tr.
421). The ALJ found that Reed’s sleep apnea “can be effectively treated with the CPAP
machine” but Reed “does not use it because she wakes up at night and feels like she is
smothering.” (Tr. 24).
underlying Reed’s pain and, in addition, indicates that no clinical or laboratory findings
support the diagnosis of a physical condition underlying Reed’s pain (Tr. 333). Dr.
Mitchell also indicates that Reed has not been prescribed any pain medications; that no
restrictions or limitations exist with respect to Reed’s daily activities; and that the only
treatment planned for Reed in the following year includes: (1) CPAP, (2) Psychotherapy,
(3) Diet, and (4) Exercise. (Tr. 334).
On order from Dr. Mitchell, an x-ray of Reed’s cervical spine was taken on
November 1, 2007 and showed “no abnormalities” (Tr. 439). In December 2008, Reed
was evaluated by Dr. Mark McCutcheon in connection with her disability application (Tr.
269-70). According to Dr. McCutcheon’s report dated December 23, 2008, Reed
reported that she was applying for disability because she was “unable to work with
people”; while at work, she would get angry, yell at people, and leave (Tr. 269). Reed
also reported that she did janitorial work part-time for the Mobile County School Board
for three years. (Tr. 269) Reed also reported depression but said that it was not
persistent. (Tr. 269) Reed told Dr. McCutcheon that she functioned well on her
medications. (Tr. 270). Upon examination of Reed, Dr. McCutcheon found that she
had full range of motion in her neck, arms, wrists, and legs; full (5/5) strength in all of
her extremities; symmetrical reflexes; and an ability to heel toe walk and rise from a
squatting position. (Id.). Reed did not report any back pain but complained about
“arthritis in her fingers and that she has right tennis elbow.” (Tr. 269). Dr. McCutcheon
concluded that he “[did not] see where this lady has a disability . . . she should take her
medications and continue with her counseling with her psychiatrist so that she can learn
to work with people and how to deal with everyday life” (Tr. 270).
On July 29, 2009, Reed presented to the emergency room with back pain, which
she reported began about a year before but became “worse in the past week.” (Tr. 383).
Reed described the pain as “mild and in the area of the lower lumbar spine and radiating
to the right calf and to the left calf.” (Id.) Dr. Marty Mcdonald reported that Reed was in
no acute distress but had soft tissue tenderness of the back and “mildly limited” range of
motion in the back “secondary to pain.” (Tr. 383-84). Reed’s extremities exhibited
normal range of motion as did her neck, which was also noted to be “nontender” and
“painless” (Tr. 384). X-rays of Reed’s back and lower spine were normal and
“reveal[ed] no acute disease.” (Id.). Reed’s diagnosis was “[p]ossible back pain: with
sciatica” and she was discharged with a non-refillable prescription of 15 Lortab 5 mg
pills which could be taken one or two at a time every six hours “as needed for pain.”
On August 28, 2009, Reed presented to Dr. William Crotwell, III with back pain
described as follows:
PRESENT ILLNESS: 36year old white female complaining of lumbar
spine pain onset several years ago. It has gotten worse over the last six
months. No accident and no injury. She says she has been treated only by
a GP in the past with some medications. Basically she has pain in the back.
It radiates down the posterior part of both legs down to the knees. The right
one is worse. She has numbness and tingling that goes down to the right
heel. The numbness is just in the heel and does not radiate down.
Coughing and sneezing do increase the pain. No loss of control of bowel or
bladder. It is 70 percent back pain and 30 percent bilateral legs. She has
(Tr. 319). Dr. Crotwell’s physical examination revealed that Reed had difficulty
removing her socks and trouble bending; tight muscles next to her spine; normal toe and
heal walk; could flex and bend to 40 degrees; had normal reflexes and sensory function
as well as full (5/5) motor strength; and could perform straight leg raises with no pain.
(Tr. 319). X-rays of the lumbar spine showed mild scoliosis (curvature of the spine);
narrowing of the spinal joints (facets) in some places; mild, non-severe disc space
collapse in some places; normal hips; and a non-arthritic pelvis (Tr. 319). Dr.
Crotwell diagnosed lumbar pain and strain and degenerative disc disease, and
prescribed pain medication and physical therapy (Tr. 319).
On September 3, 2009, Reed presented to physical therapist Paul A. Mavrakos,
who noted decreased lumbar range of motion and strength and pain4. (Tr. 317). Mr.
Mavrakos reported that Reed rated her pain 7 out of 10 and said it was “[g]enerally worse
with standing, better with sitting.” (Id.). He also noted that Reed’s posture “reveals a
normal lordosis [with] iliac crests level [and] leg lengths equal.” (Id.). The treatment
plan for Reed included: physical therapy sessions three times a week for four weeks,
moist heat pack with electrical current stimulation, ultrasound, supine traction of 75-80
pounds, joint mobilization, home exercise program and placement of a tens unit. (Tr.
318). Mr. Mavrakos determined that Reed’s prognosis and motivation were “good” (Id.).
On November 6, 2009, Reed presented to Dr. Mitchell with “multiple complaints
Mr. Mavrakos specifically reported that Reed’s range of motion included flexion of 25
percent with pain, extension of 25 percent with pain, rotation right and left of 50 percent with
severe pain, and side flexion right and left of “25 percent with decreased intersegmental mobility
going to the left.” (Tr. 317).
with pain down her right butt cheek and down her right leg [and] having a lot of weight
gain and a lot of swelling.” (Tr. 404). Dr. Mitchell stated that Reed’s back pain “sounds
like lumbar radiculopathy” and noted that Reed was seeing Dr. Crotwell for treatment of
her back pain (Tr. 405). A month later, on December 4, 2009, Reed again presented to
Dr. Mitchell and complained of “morning headaches, paresthesias5, pain, numbness in
her legs, [and] pain in her neck” (Tr. 402). Dr. Mitchell examined Reed and noted no
physical abnormalities (Tr. 402). Dr. Mitchell also commented that Reed “has a 15-yearold autistic son that takes up a lot of her care” (Tr. 402). The same day, Dr. Mitchell
completed a “Clinical Assessment of Pain” form and noted that she had treated Reed for
seven years (Tr. 333-34). Although Dr. Mitchell opined that there was an underlying
cause for Reed’s pain, she did not identify the cause (Tr. 333). Further, Dr. Mitchell
acknowledged on the form that there were no clinical or laboratory findings to support
her diagnosis (Tr. 333). Dr. Mitchell indicated that Reed’s pain would distract her from
adequately performing daily activities and work, and that physical activity would greatly
increase Plaintiff’s pain and cause distraction (Tr. 333). She also indicated that Reed’s
pain was severe and could be expected to limit her effectiveness (Tr. 334). However, Dr.
Mitchell also stated that Reed had not been prescribed narcotic pain medications and did
not have any restrictions or limitations on her activities of daily living. The only planned
Paresthesia refers to a burning or prickling sensation that is usually felt in the hands,
arms, legs, or feet, happens without warning, is usually painless and described as tingling or
numbness, skin crawling, or itching. It is also described as the feeling of “pins and needles”
which may arise if you sat with your legs crossed too long. National Institute of Neurological
Disorders and Stroke, National Institute of Health, www.ninds.nih.gov .
“treatments or procedures” for Reed during the following year included use of the CPAP
machine, psychotherapy, diet, and exercise (Tr. 334). Despite finding that Reed “has a
15-year-old autistic son that takes up a lot of her care” (Tr. 402) and has no restrictions or
limitations on her activities of daily living (Tr.334), Dr. Mitchell declared that Reed
could not engage in any gainful employment on a full time basis (Tr. 334).
Reed testified that her back was “[n]ot good” and that she had severe muscle
spasms in her back (Tr. 38). She reported having had migraines, for which she took
Ibuprofen (Tr. 38-39). Reed testified she had a lot of pain, was not able to stand for very
long, and that she hurt all the time (Tr. 40). She rated her pain as an “8 to 9” on a scale
of one to 10, with 10 being the worst possible pain (Tr. 40). Reed testified that her
pain interfered with her ability to do household chores, such as mopping, washing dishes,
and vacuuming (Tr. 40). Reed estimated that she could lift five pounds frequently and
could stand or sit for 20 to 30 minutes each at a time (Tr. 41-42). She said her
medications made her sleepy and caused her to gain weight (Tr. 43, 45-46).
Vocational expert’s testimony.
A vocational expert, Sue Berthaume, testified that Reed’s past work as an assistant
janitor would actually be classified as a janitor with an exertional level of “medium” and
a skill level of “semi-skilled” or “SVP of 3.” (Tr. 47). In response to the ALJ’s first
hypothetical,6 Ms. Berthaume testified that such an individual could not perform Reed’s
past relevant work, but could perform the following jobs that existed in the national
economy: 1,000,000 light and unskilled jobs as a housekeeper, cleaner; 400,000 light
and unskilled jobs as a garment folder; and 3,000 light and unskilled jobs as a production
In response to a second hypothetical,7, Ms. Berthaume identified jobs existing in
the national economy which could be performed by such an individual: 176,000
sedentary and unskilled jobs as a microfilm preparer; 143,000 sedentary and unskilled
jobs as surveillance system monitor; and 48,000 sedentary and unskilled jobs as a collator
operator. (Tr. 48-49).
Reed’s counsel proposed a hypothetical to Ms. Berthaume of an individual with
the same education and work experience of Reed but added a limitation that, “such an
individual suffers from mood disorder, back disorder, she has muscle spasm in her back,
she suffers migraine headaches and is obese, as a result of those impairments, the side
effects from the medications that she takes, [and] she would have the limitations that Dr.
Mitchell found (Exhibit 14F).” (Tr. 49). Ms. Berthaume testified that such an
The ALJ asked Ms. Berthaume to consider a hypothetical individual who was Reed’s
age and had the same education and work background, was limited to performing light work
which would require the individual to only occasionally crouch, kneel, stoop, climb ramps and
stairs and balance, would never require the individual to climb ladders, ropes or scaffolding, was
able to understand and remember and carry out very short and simple instructions,, and could
pay attention for up to two hours at a time. (Tr. 47).
The ALJ’s second hypothetical was the same as the first except that the individual was
limited to performing no more than sedentary work, rather than light work. (Tr. 48).
individual could not perform Reed’s past relevant work and that no jobs existed in the
national or regional economy for such an individual. (Tr. 49).
Reed’s counsel proposed a second hypothetical of an individual with the same
education and work experience of Reed but added the following: “such individual suffers
from chronic low back pain, depression, migraine headaches, and as a result or
combination of those impairments would be able to stand for less than one half hour at a
time, sit for less than a half hour at a time, and at least twice a week would have to take
breaks from work for at least an hour at a time for unscheduled times due to the pain she
would be experiencing.” (Tr. 49-50). Ms. Berthaume testified that such an individual
could not perform Reed’s past relevant work and that no jobs existed in the national or
regional economy for such an individual. (Tr. 50).
The ALJ found that Reed had not engaged in substantial gainful activity since
her alleged onset date, and that she had severe impairments, namely bipolar disorder,
migraines, depression, sleep apnea, and lumbar degenerative disc disease. (Tr. 16,
Findings 1 and 2). The ALF further found that Reed’s impairments did not meet or equal
the criteria of a per se disabling impairment listed at 20 C.F.R. pt. 404, subpt. P, app. 1
(Tr. 16, Findings 3). The ALJ concluded, based on consideration of the record as a
whole, that Reed could perform light work with some additional limitations (i.e., that she
could occasionally crouch, kneel, stoop, balance, and climb ramps and stairs; never climb
ladders, ropes, or scaffolds; had the ability to understand, remember, and carry out very
short, simple instructions; and pay attention for up to two hours at a time) (Tr. 17-26,
Finding 4). Based on vocational expert testimony, the ALJ concluded that Reed could not
perform her past relevant work, but could perform other jobs that existed in the national
economy (Tr. 26-27, Findings 5-9). Thus, the ALJ found that Reed was not disabled
within the meaning of the Act (Tr. 27, Finding 10).
Evidence Submitted to the Appeals Council.
A January 2009 lumbar spine x-ray showed that Reed’s lumbar spine was
normal with well-maintained body heights and disc spaces, satisfactory alignment, and no
fracture or other abnormality (Tr. 167). A February 2010 MRI of Reed’s lumbar spine
showed intact structures, normal alignment, and some “mild to moderate” degenerative
disease “with focal protrusion at L4-L5” but no spinal cord or nerve root impingement
(Tr. 162-65). In May 2010 and March 2011, Dr. David Walsh gave Reed steroid
injections in her lumbar spine for her pain and described Reed’s pain levels as 10 before
the procedure and 2 after the procedure. (Tr. 467-70).
The Appeals Council found the additional evidence was “not contrary to the
weight of all the evidence now in the record [and, therefore,] did not provide a basis for
changing the ALJ’s decision (Tr. 1-2).
The ALJ did not err by rejecting the opinion of Reed’s treating
physician, Dr. Mitchell, that Reed was disabled due to her back pain.
Reed argues, in sum, that the ALJ committed reversible error:
[B]y basing her decision to reject the medical opinion of Plaintiff’s treating
physician, Dr. Barbara Mitchell, MD, on evidence not offered at the
hearing or included in the record; to wit, inferring Dr. Mitchell’s motives
(described as relying on and uncritically accepting as true, Plaintiff’s
subjective symptoms as the sole basis for completing the pain form) for
completing the pain questionnaire, without citing any acceptable medical
evidence or explanation to support her own medical finding?
(Doc. 13 at 2). Reed further argues that the ALJ “ordered no consultative examination to
establish substantial evidence to support a maximum residual functional capacity in this
case.” (Id. At n.2, citing 20 CFR § 416.919)8.
The Commissioner argues that, although Dr. Mitchell opined that Reed could not
engage in any form of gainful employment on a full-time basis due to her pain, “Dr.
Mitchell  did not support her opinion with any specific limitations regarding [Reed’s]
ability to perform basic work activities[;]9 . . . [and did not] identify the underlying cause
of [Reed’s] allegedly disabling pain.” (Doc. 16 at 6-7, citing Tr. 333-34). According to
the Commissioner, it was, therefore, reasonable for the ALJ to “assign Dr. Mitchell’s
conclusory opinion ‘little weight’.” (Doc. 16 at 7).
Controlling weight may be given to a treating physician’s medical opinions if they
are well-supported by medically acceptable clinical and laboratory diagnostic techniques
and are not inconsistent with other substantial evidence in the record. 20 C.F.R. §
404.1527(d)(2). The Eleventh Circuit has addressed this issue as follows:
Social Security Regulation 20 C.F.R. § 416.919 provides, in pertinent part, that “[t]he
decision to purchase a consultative examination will be made on an individual basis in
accordance with the provisions of § 416.919a through §416.919F,” regulations which support
the purchase of consultative examinations “to resolve an inconsistency in the evidence or when
the evidence as a whole is insufficient to support a determination or decision on [a] claim.”
Basic work activities include walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling. See 20 C.F.R. § 416.921(a).
Absent “good cause,” an ALJ is to give the medical opinions of treating
physicians “substantial or considerable weight.” Lewis, 125 F.3d at 1440;
see also 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause
exists “when the: (1) treating physician's opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating
physician's opinion was conclusory or inconsistent with the doctor's own
medical records.” Phillips, 357 F.3d at 1241. With good cause, an ALJ may
disregard a treating physician's opinion, but he “must clearly articulate [the]
reasons” for doing so. Id. at 1240–41.
Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). The
Eleventh Circuit concludes that “‘good cause’ exists when the: (1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004)(quoting
Lewis, supra 125 F.3d at 1440). An ALJ must clearly articulate his or her reasons for
discounting a treating physician’s opinion. Id.
The ALJ in this case identified good cause for discounting Dr. Mitchell’s opinion.
First, Dr. Mitchell did not provide any explanation for her opinion (Tr. 25; see Tr. 33334). See 20 C.F.R. § 416.927(d)(3) (“The better an explanation a source provides for an
opinion, the more weight we will give that opinion.”); Phillips, 357 F.3d at 1240-41
(good cause to not assign substantial or considerable weight to a treating physician’s
opinion exists when the opinion is conclusory). Dr. Mitchell not only failed to identify
the physical condition underlying Reed’s allegedly debilitating pain, but she explicitly
stated that there were no clinical or laboratory findings to support the diagnosis of any
physical condition which was the underlying cause of Reed’s pain.10 (Tr. 333). Moreover,
the ALJ noted that the same day Dr. Mitchell offered her opinion, she examined Plaintiff
and found no abnormalities (Tr. 25, see Tr. 402-403). This is a valid basis for discounting
Dr. Mitchell’s opinion regarding Reed’s inability to work.
Second, Dr. Mitchell’s opinion that Reed is disabled is inconsistent with other
medical evidence in this record. See 20 C.F.R.§ 416.927(d)(4) (“Generally, the more
consistent an opinion is with the record as a whole, the more weight we will give to that
opinion.”); Lewis, 125 F.3d at 1441 (ALJ reasonably discounted an opinion that was
inconsistent with other record evidence). For example, Dr. Mitchell’s opinion that Reed
is unable to work is inconsistent with Dr. McCutcheon’s opinion, following his
examination of Reed, that she is not disabled. (Cf. Tr. 269-70 and Tr. 333-34; Tr. 20,
22-23). Dr. McCutcheon’s conclusion was based not only on Reed’s “normal Physical
exam,” but on the findings that Reed “has a history of migraines controlled when she
takes her medications”; “has no troubles with activities of daily living and is able to cook
clean and take care of her children [which he reported to be 3, 12, 14 and 17 years old
Reed’s argument that the ALJ failed to fully develop the record by not seeking
clarification from Dr. M itchell regarding her opinion is without merit. Doc. 13 at 5.
Although the ALJ is “bound to make every reasonable effort to obtain from the
claimant’s treating physician(s) all the medical evidence necessary to make a
determination,” the burden was and is on Reed to prove that she is disabled. See Sellers
v. Barnhart, 246 F.Supp.2d 1201, 1210 (M .D. Ala. 2002)(“[T]he ALJ is not required to
order a consultative examination unless the record, medical and non-medical, establishes that
such an examination is necessary to enable the ALJ to render a decision.”)(emphasis in
original; citing 20 C.F.R. § 404.1512(a)).
with the 14 year old being disabled with seizures and autism]”; reported having two
episodes of depression but “also stated that she functions well when she takes her
medicines.” (Tr. 20, 22-23, see Tr 269-70). Based on his examination of Reed, Dr.
McCutcheon explicitly stated that he was unable to find any physical or mental basis for
Reed’s claims of disability (Tr. 20, see Tr. 269-70). Despite Reed’s contention to the
contrary (doc. 13 at n. 2), Dr. McCutcheon’s opinion is an acceptable medical opinion
entitled to weight. See 20 C.F.R. § 416.927(d)(1) (“Generally, we give more weight to the
opinion of a source who has examined you than to the opinion of a source who has not
examined you”); 20 C.F.R. § 416.919a (“A consultative examination is a physical or
mental examination purchased for you at our request and expense from a treating source
or another medical source”).11
Additionally, the ALJ’s finding that Reed could perform a limited range of light
work was supported by Dr. Crotwell’s examination findings of August 28, 2009 (which
showed mild abnormalities, e.g., “mild scoliosis,” “some narrowing of the facets,” and
“mild disc space collapse . . . but not severe”) and his recommendation for conservative
treatment (physical therapy and medication) (Tr. 25, see Tr. 319-29). Dr. Mitchell herself
deferred to Dr. Crotwell’s treatment of Reed’s back pain when Reed presented to her on
Similarly, there is no merit to Reed’s contention that the ALJ rejected Dr.
McCutcheon’s finding of “no impairments” or that such a rejection is inconsistent with the ALJ’s
finding that Reed suffers from severe impairments of bipolar disorder, migraines, depression,
lumbar degenerative disease and sleep apnea. See Doc. 13 at 7-8 (“The [ALJ] provided no
explanation for the internal inconsistencies in simultaneously rejecting the findings of Dr.
McCutcheon’s examination report [namely, where he “found no impairments”] while relying on
it to deny Plaintiff’s application in this case.”) Dr. McCutcheon did not find that Reed had no
impairments; he specifically stated that “I don’t see where this lady has a disability.” (Tr.270).
November 6, 2009 (Tr. 405).12 One month later, on December 4, 2009, Dr. Mitchell
explicitly stated that the only treatments Reed required were use of a CPAP machine,
psychotherapy, diet, and exercise (Tr. 333-34). Hence, the ALJ identified good cause for
discounting Dr. Mitchell’s opinion.13
Reed objects to the ALJ’s comment that “Dr. Mitchell 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 claimant reported.”
(Doc. 13 at 5, citing Tr. 25). Reed does not contend that this comment alone justifies
reversal of the ALJ’s decision. The ALJ, not Dr. Mitchell, is charged with evaluating the
credibility of Reed’s subjective reports of pain, and the ALJ reasonably found Reed’s
complaints of disabling pain were not credible based on all the evidence of record (Tr.
18, 25).14 See 42 U.S.C. § 405(g) (stating the Commissioner is the finder 7 of fact); 20
C.F.R. § 416.929 (stating issues of credibility are resolved by the agency). As the
Contrary to Reed’s contention (doc. 13 at 6), Dr. Crotwell’s report dated August 28,
2009, clearly supports the ALJ’s finding of “mild abnormalities” inasmuch as he expressly states
that Reed’s condition includes “mild scoliosis” and “mild disc spac collapse at 4-5” and “I do not
see any obvious spondylo or anything going on.” (Tr. 319, emphasis added). Consequently, the
ALJ has not proposed “her own medical finding” but has, instead, properly reported and relied
on Dr. Crotwell’s diagnosis and the conservative treatment he prescribed. (Tr. 23, 25).
Because good cause existed to reject Dr. Mitchell’s opinion, the vocational expert’s
testimony that no jobs exist in the national or regional economy for an individual with the
limitations identified by Dr. Mitchell is simply irrelevant.
Reed has not in her brief identified the ALJ’s credibility determination as a
basis for reversal. Hence, this argument has been waived. See Sepulveda v. U.S. Atty.
Gen., 401 F.3d 1226, 1228 n.2 (11 th Cir. 2005)(“ When an appellant fails to offer argument
on an issue, that issue is abandoned.”).
Eleventh Circuit has recognized, questions of credibility and resolutions of conflicts in
the evidence are the province of the agency. See Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983) (“We may not decide the facts anew, reweigh the evidence, or
substitute our judgment for that of the [Commissioner].”), 1242 (“credibility
determinations are for the [Commissioner], not the courts”).
Because the ALJ identified valid reasons, supported by substantial evidence, for
discounting Dr. Mitchell’s opinion, the ALJ’s decision is due to be affirmed.
For the reasons stated above, it is ORDERED that the decision of the
Commissioner of Social Security denying plaintiff’s benefits be and is hereby
22nd day of August, 2012.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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