Warbington v. Colvin

Filing 28

MEMORANDUM AND OPINION that the decision of the Commissioner of Social Security denying plaintiff benefits be AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 12/16/2013. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIMBERLY WARBINGTON,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Civil Action No. 13-00119-N

MEMORANDUM OPINION AND ORDER
Plaintiff Kimberly Warbington brings this action seeking judicial review of a
final decision of the Commissioner of Social Security, denying her applications for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”),
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The parties have consented to the
exercise of jurisdiction by the undersigned United States Magistrate Judge, for all
proceedings in this Court, pursuant to 28 U.S.C. § 636(c).

(See Doc. 19 (“In

accordance with provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in
this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, including . . . order the entry of a final judgment, and
conduct all post-judgment proceedings.”); see also Doc. 21 (order of reference).)
Upon consideration of the administrative record (“R.”) (Doc. 13), Warbington’s brief
(Doc. 14), the Commissioner’s brief (Doc. 23), and the arguments made by counsel
during the hearing on November 21, 2013 (see Docs. 24, 27), it is determined that the

Commissioner’s decision denying Warbington benefits should be AFFIRMED.1
I.

Procedural Background

On March 8, 2010, Warbington filed an application for DIB (R. 158-159) and
one for SSI (R. 160-163), alleging disability beginning January 17, 2007 (see R. 158,
160). Her applications were initially denied. (See R. 82.)

A hearing was then

conducted before an Administrative Law Judge on October 3, 2011 (see R. 32-66).
On October 21, 2011, the ALJ issued a decision finding Warbington was not disabled
(R. 9-31),2 and she sought review from the Appeals Council. The Appeals Council
issued a decision declining to review the October 2011 ALJ determination on
January 28, 2013 (see R. 1-6)—making that determination the Commissioner’s final
decision for purposes of judicial review, see 20 C.F.R. § 404.981—and a complaint
was filed in this Court on March 12, 2013 (see Doc. 1).
II.

Standard of Review and Claim on Appeal

In all Social Security cases, the plaintiff3 bears the burden of proving that he
or she is unable to perform his or her previous work.
1001, 1005 (11th Cir. 1986).

Jones v. Bowen, 810 F.2d

In evaluating whether the plaintiff has met this

Any appeal taken from this memorandum opinion and order and
corresponding judgment shall be made directly to the Eleventh Circuit. (See Docs. 19, 21
(“An appeal from a judgment entered by a Magistrate Judge shall be taken directly to the
United States Court of Appeals for this judicial circuit in the same manner as an appeal
from any other judgment of this district court.”).)
1

It is noted that the administrative record (Doc. 13) contains a separate ALJ
decision dated June 12, 2009, denying Warbington’s February 27, 2007 application, for SSI,
for a period of disability she alleged began December 1, 2006. (See R. 67-81.)
2

3

The terms “plaintiff” and “claimant” are used interchangeable herein.

2

burden, and thus proven that he or she is disabled, the examiner (most often an ALJ)
must consider the following four factors: (1) objective medical facts and clinical
findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the
plaintiff’s age, education, and work history.

Id. An ALJ, in turn,

uses a five-step sequential evaluation to determine whether the
[plaintiff] is disabled, which considers: (1) whether the claimant is
engaged in substantial gainful activity; (2) if not, whether the claimant
has a severe impairment; (3) if so, whether the severe impairment
meets or equals an impairment in the Listing of Impairments in the
regulations; (4) if not, whether the claimant has the [residual functional
capacity, or] RFC[,] to perform her past relevant work; and (5) if not,
whether, in light of the claimant’s RFC, age, education and work
experience, there are other jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. App’x 868, 870 (11th Cir. Feb. 9,
2012) (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f);
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted).
If a plaintiff proves that he or she cannot do his or her past relevant work, it
then becomes the Commissioner’s burden to prove that the plaintiff is
capable—given his or her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy.

Id.;

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985). Finally, but importantly, although “the [plaintiff] bears the
burden of demonstrating the inability to return to [his or] her past relevant work,
the Commissioner of Social Security has an obligation to develop a full and fair
record.”

Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).

The task for this Court is to determine whether the Commissioner’s decision

3

to deny a plaintiff benefits is supported by substantial evidence.

Substantial

evidence is defined as more than a scintilla, and means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.

Richardson v.

Perales, 402 U.S. 389, 401 (1971). “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.”

Chester v.

Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Courts are precluded, however, from
“deciding the facts anew or re-weighing the evidence.”

Davison v. Astrue, 370 Fed.

App’x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005)).

And, “[e]ven if the evidence preponderates

against the Commissioner’s findings, [a court] must affirm if the decision reached is
supported by substantial evidence.”

Id. (citing Crawford v. Commissioner of Soc.

Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)) (emphasis added).
On appeal to this Court, Warbington asserts two reasons why the
Commissioner’s decision to deny benefits is in error (i.e., not supported by
substantial evidence): (1) the ALJ failed to properly evaluate and articulate findings
with regard to the medical opinion evidence; and (2) the ALJ failed to properly
evaluate Warbington’s migraine headaches. Because the second asserted error is
essentially that the ALJ improperly evaluated Warbington’s credibility, and because
the first asserted error is essentially that the determination of Warbington’s RFC is
not supported by substantial evidence, the Court will address the second claim of
error first.
4

III.
A.

Analysis

The ALJ properly evaluated Warbington’s migraine headaches.

Warbington argues that “the ALJ erred as a matter of law in failing to
properly evaluate [her] migraine headaches” after finding that Warbington does,
indeed, “suffer from the severe impairment of migraine headaches.”
(citing R. 14).)4

(Doc. 14 at 7

According to Warbington, “[d]espite this finding, the ALJ failed to

offer any meaningful discussion of this severe impairment or its effects in her
decision.”

(Id.)

Warbington, however, concedes that limitations discussed by the

ALJ in her decision “seem to indicate that the ALJ at least considered this severe
impairment[—the migraines—]in the formation of her RFC finding,” but
these limitations are far less restrictive than those noted by Ms.
Warbington at her administrative hearing. Moreover, the ALJ’s
hearing decision does not indicate why the ALJ apparently discredited
the greater portion of these complaints or how the ALJ found Ms.
Warbington’s migraine headaches to limit her only in the specific
functions set forth in her decision.
(Id. at 7-8.)
Based on how Warbington frames this issue, it is apparent that she is
contesting the ALJ’s determination as to her credibility.

See Cooper v.

Commissioner of Soc. Sec., 521 Fed. App’x 803, 807-08 (11th Cir. June 6, 2013) (per
curiam) (where the ALJ, like the ALJ here, first determined, based on the evidence,
that the plaintiff had several underlying medical conditions, including migraines,

The ALJ found Warbington “has the following severe impairments: anxiety,
depression, mild carpal tunnel syndrome, chronic back pain, migraine headaches, history of
syncope, and vertigo.” (R. 14 (citing 20 C.F.R. § 416.920(c)).)
4

5

and then “found that those conditions could be expected to cause pain and
significantly limit [the plaintiff’s] ability to perform basic job tasks,” but determined
to “not fully credit [the plaintiff’s] testimony regarding the disabling effects of that
pain[,]” the district court and the Eleventh Circuit, ultimately, found no error “in
[the ALJ’s] assessment of [the plaintiff’s] credibility”); accord May v. Commissioner
of Soc. Sec. Admin., 226 Fed. App’x 955, 958 (11th Cir. Apr. 6, 2007) (per curiam).
As such, the Court will review this asserted error under the familiar “pain standard”
applied by courts in this Circuit, pursuant to which it must be first noted that
“subjective complaints of pain cannot in and of themselves serve as conclusive
evidence of disability. [Instead, t]he record must document by medically acceptable
clinical or laboratory diagnostic techniques the existence of a medical impairment
which could reasonably be expected to produce the disabling pain.”

Petteway v.

Commissioner of Soc. Sec., 353 Fed. App’x 287, 288 (11th Cir. Nov. 18, 2009) (per
curiam) (quoting Chester, 792 F.2d at 132).
[In this Circuit, a] three-part “pain standard” applies when a claimant
attempts to establish disability through his own testimony of pain or
other subjective symptoms. Wilson v. Barnhart, 284 F.3d 1219, 1225
(11th Cir. 2002). The pain standard requires: (1) evidence of an
underlying medical condition, and either (2) objective medical evidence
confirming the severity of the alleged pain arising from that condition,
or (3) the objectively determined medical condition is of such a severity
it can be reasonably expected to give rise to the alleged pain. Id.
Petteway, 353 Fed. App’x at 288-89; accord Harville v. Colvin, No. 4:11–CV–3619–
VEH, 2013 WL 1346565, at *6 (N.D. Ala. Mar. 29, 2013); see also Joyce v.
Commissioner of Social Sec., No. 3:10–cv–842–J–MCR, 2011 WL 4048998, at *6
(M.D. Fla. Sept. 13, 2011) (“‘[O]nce such an impairment is established, all evidence
6

about the intensity, persistence, and functionally limiting effects of pain or other
symptoms must be considered in addition to the medical signs and laboratory
findings in deciding the issue of disability.’

Thus, once the pain standard is

satisfied, the issue becomes one of credibility.” (quoting Foote v. Chater, 67 F.3d
1553, 1561 (11th Cir. 1995)) (emphasis added)).
When a claimant testifies to subjective complaints of pain, the ALJ
must clearly articulate adequate reasons for discrediting the claimant’s
allegations of disabling symptoms. Dyer, 395 F.3d at 1210. In
articulating his reasons, the ALJ need not specifically refer to every
piece of evidence, so long as the decision “is not a broad rejection which
is not enough to enable the district court or [, if necessary, the court of
appeals] to conclude that the ALJ considered [the] medical condition as
a whole.” Id. at 1210–11 (quotation omitted). A clearly articulated
credibility determination supported by substantial evidence will not be
disturbed. Foote, 67 F.3d at 1562.
Petteway, 353 Fed. App’x at 289 (some internal citations modified); see also Harville,
2013 WL 1346565, at *6 (“If the ALJ wishes to make a credibility determination,
then the ALJ ‘must either explicitly discredit such testimony or the implication must
be so clear as to amount to a specific credibility finding.’” (quoting Foote, 67 F.3d at
1562)); Sharpe v. Astrue, No. 5:07cv74/RS-MD, 2008 WL 1805436, at *6 (N.D. Fla.
Apr. 15, 2008) (as long as “the implication [is] obvious to the reviewing court[,] . . .
the Eleventh Circuit does not require an explicit finding as to the claimant’s
credibility” (citing Dyer, 395 F.3d at 1210)). Moreover,
[t]he Eleventh Circuit has approved an ALJ’s reference to and
application of the standard set out in 20 C.F.R. § 404.1529 [or §
416.929], because that regulation “contains the same language
regarding the subjective pain testimony that this court interpreted
when initially establishing its three-part standard.” Wilson, 284 F.3d
at 1226. Thus, failure to cite to an Eleventh Circuit standard is not
reversible error so long as the ALJ applies the appropriate regulation.
7

Id.; see also Harville, 2013 WL 1346565, at *6 (when “evaluat[ing] the intensity and
persistence of [a plaintiff’s alleged] symptoms and their affect on his or her ability to
work . . . the ALJ may consider the nature of a claimant’s symptoms, the
effectiveness of medication, a claimant’s method of treatment, a claimant’s activities,
and any conflicts between a claimant’s statements and the rest of the evidence”
(citing 20 C.F.R. §§ 404.1529(c)(2)-(4), 416.929(c)(2)-(4))).
Here, at the fourth step of the sequential analysis, after citing, among other
authority, § 416.929 (see R. 17), the ALJ’s provides the following, applicable to
Warbington’s migraines:
•

As to all severe impairments, including migraines, “[s]he has been
treated primarily by her primary care physician, [Dr.] Hunte[, who] has
treated [her] impairments conservatively with medications, including
Lexapro, Tylenol with codeine, Zegerid, Antivert, and Xanax (Exhibit
B9F). Treatment notes indicate that the impairments are generally
well controlled on medication, although [Warbington] has presented to
Dr. Hunte occasionally with complaints related to the severe
impairments along with acute illness.” (R. 17.) Such instances
related to her migraines were: (1) on April 14, 2009, when she
“presented to Dr. Hunte with complaints of headaches on the right side
(Exhibit B9F). She explained that the pain is relieved with Tylenol
and lying down” (R. 17); and (2) in April 2011, when she “again
complained of migraine headaches and requested a refill on
medications” (R. 18.)

•

“In addition to receiving treatment from Dr. Hunte, [Warbington] has
sought treatment at the emergency room and from specialists.” (R.
18.) Such an instance, related to her migraines, was on November 25,
2006, when she presented to the ER “with complaints of headaches and
dizziness (Exhibit B2F). A CT scan of the brain was negative. She
was diagnosed with headaches and vertigo and given medications.
She was instructed to follow up with her primary care physician.” (R.
18.) Warbington, furthermore, reported chronic migraines to Dr.
Jackson, the consultative examiner, and, “[b]ased on her examination
of [Warbington] and review of the record, Dr. Jackson diagnosed
[Warbington] with[, among other things,] chronic headache[s].” (R.
8

20.)
Dr. Jackson further noted that Warbington’s “physical
examination was ‘completely normal,’ and there is no evidence that
[she] had a stroke in February 2010 as reported by [Warbington]
because the workup was completely negative.” (R. 20.)
The ALJ concluded that Warbington received very conservative, infrequent
treatment for her severe impairments, including her migraines; specifically, she was
treated with only medication and did not require more aggressive treatment. (See
R. 21.) The ALJ also concluded that there were minimal objective findings and
that, of those findings, most were normal.

(See R. 21.)

As to Warbington’s

credibility, the ALJ concluded as follows:
[Warbington] testified that she is disabled because of the severe
impairments; however, her statements concerning her impairments
and their impact on her ability to work are considerably more limited
and restricted than is established by the record as a whole. First, as
discussed throughout this decision, the medical records do not support
[her] allegations of disabling symptoms. The impairments are treated
conservatively with medications.
[She] has not required more
aggressive treatment. In fact, the treatment notes show that she has
been without medication at times (Exhibit B19F). Additionally, there
have been few, if any, adjustments to the medications[,] which shows
that they are effective and do not cause significant side effects.
[Further, Warbington] acknowledged that the medications are effective
(Hearing Testimony). She stated at the hearing that the medications
cause side effects such as nausea and drowsiness, but she previously
reported no side effects from prescribed medications[,] and treatment
notes do not show that she has complained of significant side effects . . .
.
(R. 21-22.)
The ALJ’s decision goes on to discuss Warbington’s sporadic work history
“prior to the alleged disability onset date, which raises a question as to whether [her]
continued unemployment is actually due to medical impairments (Exhibits B4F,
B3F, and B3D).”

(R. 22.)

And the ALJ also considered Warbington’s daily
9

activities, as well as inconsistencies in her reports and the objective medical records
(see R. 22), before concluding, “The record as a whole, including the objective medical
evidence, the type and amount of treatment [Warbington] has received, [her] daily
activities, her work history, and the inconsistent statements, weighs against [her]
allegations of disabling symptoms and supports a finding that [she] can perform a
limited range of light work . . . .”

(R. 22.)

As the above demonstrates, the ALJ has “clearly articulate[d] adequate
reasons for discrediting [Warbington’s] allegations of disabling symptoms.”
Petteway, 353 Fed. App’x at 289 (citing Dyer, 395 F.3d at 1210). Those reasons are,
moreover, supported by substantial record evidence. 5

The ALJ did more than

merely cite a lack of objective medical evidence; she considered, among other things,
inconsistencies between Warbington’s testimony and what the record reflected

Compare Campbell v. Astrue, No. 5:07cv196/RS-EMT, 2008 WL 3979499, at *7
(N.D. Fla. Aug. 22, 2008) (“Thus, the reasons articulated by the ALJ for discrediting
Plaintiff’s subjective complaints are proper, and they are based upon substantial evidence
in the record. Accordingly, the ALJ did not err in discrediting Plaintiff’s allegations. (citing
Jones v. Department of Health & Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991)
(emphasis added)); Harville, 2013 WL 1346565, at *6 (“Substantial evidence must support
the reasons given for discrediting [a claimant’s] testimony.” (citing Hale v. Bowen, 831 F.2d
1007, 1012 (11th Cir. 1987)); and Lockhart v. Barnhart, 148 Fed. App’x 628, 629 (9th Cir.
Sept. 16, 2005) (mem. op.) (“The record establishes that the ALJ applied the proper factors
set forth in 20 C.F.R. § 404.1529, did not reject the complaint of pain solely due to a lack of
objective medical evidence, and provided several clear and convincing reasons, supported by
substantial evidence, to justify his credibility determination. Therefore, the ALJ did not
improperly reject Lockhart’s testimony regarding the impact of her disabilities on her ability
to work.”), with Harris v. Commissioner of Soc. Sec., Civil Action No. 10–cv–13410, 2011 WL
3440755, at *12 (E.D. Mich. June 14, 2011) (“[T]he ALJ’s decision is flawed for[, among
other,] reasons: . . . Substantial evidence does not support the ALJ’s decision to discount
Plaintiff’s statements regarding his pain.”).
5

10

regarding her ability to manage her migraines with medication, 6 as well as
Warbington’s daily activities.7 See Nobles v. Astrue, No. 6:06-CV-856-ORL-KRS,
2008 WL 816903, at *5-6 (M.D. Fla. Mar. 25, 2008) (in which the record included a
statement from a treating physician that the plaintiff’s “migraines had significantly
interfered with her lifestyle[, t]he ALJ applied the pain and credibility standards
used in this circuit.

Even though the ALJ noted that no objective tests confirmed

the existence of migraine headaches, he found that Nobles’ impairment could have
been reasonably expected to produce the alleged symptoms.

He articulated specific

facts, based on evidence in the record, to support his conclusion that these symptoms
were not as severe as Nobles testified they were. . . . Contrary to Nobles’ assertion,
the ALJ did not discredit her testimony solely because it was inconsistent with
objective medical evidence. Rather, the ALJ reviewed all available evidence,
including the objective medical evidence, and determined that the functional
limitations arising from Nobles’ migraine headaches were not a severe as she
It is clearly proper for an ALJ to consider “any conflicts between a claimant’s
statements and the rest of the evidence.” Harville, 2013 WL 1346565, at *6; see 20 C.F.R. §
404.1529(c)(4) (“We will consider whether there are any inconsistencies in the evidence and
the extent to which there are any conflicts between your statements and the rest of the
evidence, including your history, the signs and laboratory findings, and statements by your
treating or nontreating source or other persons about how your symptoms affect you.”); see
also Gontes v. Astrue, 913 F. Supp. 2d 913, 921 (C.D. Cal. 2012) (“Because Plaintiff’s
testimony conflicted with the evidence that her medical conditions only minimally affected
her ability to work and that her pain, diabetes, and asthma were well-controlled with
medication and other treatments, the ALJ properly discounted it.” (citations omitted));
Fobian v. Astrue, No. ED CV 08–567 PJW, 2009 WL 3416219, at *3 (C.D. Cal. Oct. 18, 2009)
(use of record evidence “to conclude that [a claimant is] not truthful . . . is a valid reason to
discredit a claimant’s testimony”).
6

An ALJ can also consider “a claimant’s activities.” Harville, 2013 WL
1346565, at *6.
7

11

reported. This was exactly the analysis required under the law.” (citing May, 226
Fed. App’x at 958-59; Arnold v. Heckler, 732 F.2d 881, 883-84 (11th Cir. 1984)) (other
citations omitted)).
Thus, the ALJ properly evaluated Warbington’s migraine headaches—as well
as her credibility. And this claim of error is due to be rejected.
B.

In the course of determining Warbington’s RFC, the ALJ’s
evaluation of, and findings with regard to, the medical opinion
evidence—specifically, the physical RFC assessment from Dr.
Hunte, a treating source—was proper.

As the Commissioner points out in her brief (see Doc. 23 at 4-6), Warbington
cannot rely on this Court’s decision in Coleman v. Barnhart, 264 F. Supp. 2d 1007
(S.D. Ala. 2003), to the extent that decision holds that the Commissioner’s burden to
determine a plaintiff’s RFC can never be met unless the Commissioner’s—the
ALJ’s—RFC assessment is supported by an RFC or similar assessment from a
treating or examining physician.

This Court has recognized that such a

requirement is not a correct pronouncement of the law.

See, e.g., generally

McMillian v. Astrue, CA No. 11–00545–C, 2012 WL 1565624 (S.D. Ala. May 1, 2012);
see also id. at *4 n.5 (noting that decisions of this Court “in which a matter is
remanded to the Commissioner because the ALJ’s RFC determination was not
supported by substantial and tangible evidence still accurately reflect the view of
this Court, but not to the extent that such decisions are interpreted to require that
substantial and tangible evidence must—in all cases—include an RFC or PCE from
a physician” (internal punctuation altered and citation omitted)).
Instead, the correct analysis is more searching:
12

Clearly, the ALJ’s [ ] RFC determination must be supported by
substantial evidence, which also requires that the ALJ “provide a
sufficient rationale to link such evidence to the legal
conclusions reached.” Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347
(M.D. Fla. 2005); compare id., with Packer v. Astrue, Civil Action No.
11–0084–CG–N, 2013 WL 593497, at *4 (S.D. Ala. Feb. 14, 2013)
(“[T]he ALJ must link the RFC assessment to specific evidence in the
record bearing upon the claimant’s ability to perform the physical,
mental, sensory, and other requirements of work.” (quoting Salter v.
Astrue, No. CA 11–00681–C, 2012 WL 3817791, at *3 (S.D. Ala. Sept. 4,
2012))); see also Hanna v. Astrue, 395 Fed. App’x 634, 636 (11th Cir.
Sept. 9, 2010) (per curiam) (“The ALJ must state the grounds for his
decision with clarity to enable us to conduct meaningful review. . . .
Absent such explanation, it is unclear whether substantial evidence
supported the ALJ’s findings; and the decision does not provide a
meaningful basis upon which we can review [a plaintiff’s] case.”
(internal citation omitted)); Ricks v. Astrue, No. 3:10–cv–975–TEM,
2012 WL 1020428, at *9 (M.D. Fla. Mar. 27, 2012) (“‘The existence of
substantial evidence in the record favorable to the Commissioner may
not insulate the ALJ’s determination from remand when he or she does
not provide a sufficient rationale to link such evidence to the legal
conclusions reached.’ Where the district court cannot discern the basis
for the Commissioner’s decision, a sentence-four remand may be
appropriate to allow him to explain the basis for his decision.” (quoting
Russ, 363 F. Supp. 2d at 1347)); Packer, 2013 WL 593497, at *4 (While
“the Eleventh Circuit has declined to impose overly rigid requirements
when reviewing disability decisions[,] meaningful review . . . requires
[that] ALJs [ ] state with clarity the grounds for their decisions.”
(internal citations and quotation marks omitted)).
Alexander v. Colvin, Civil Action No. 2:12–00607–N, 2013 WL 5176355, at *5 (S.D.
Ala. Sept. 13, 2013) (emphasis added).
Such linkage, moreover, may not be manufactured speculatively by the
Commissioner—using “the record as a whole”—on appeal, but rather,
must be clearly set forth in the ALJ’s decision. See, e.g., Durham
v. Astrue, Civil Action No. 3:08CV839-SRW, 2010 WL 3825617, at *3
(M.D. Ala. Sep. 24, 2010) (rejecting the Commissioner’s request to
affirm an ALJ’s decision because, according to the Commissioner,
overall, the decision was “adequately explained and supported by
substantial evidence in the record”; holding that affirming that decision
would require that the court “ignor[e] what the law requires of the
ALJ[; t]he court ‘must reverse [the ALJ’s decision] when the ALJ has
13

failed to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted’”)
(quoting Hanna, 395 Fed. App’x at 636 (internal quotation marks
omitted)); see also id. at *3 n.4 (“In his brief, the Commissioner sets
forth the evidence on which the ALJ could have relied . . . . There
may very well be ample reason, supported by the record, for [the ALJ’s
ultimate conclusion]. However, because the ALJ did not state his
reasons, the court cannot evaluate them for substantial evidentiary
support. Here, the court does not hold that the ALJ’s ultimate
conclusion is unsupportable on the present record; the court holds only
that the ALJ did not conduct the analysis that the law requires him to
conduct.”) (emphasis in original); Patterson v. Bowen, 839 F.2d 221, 225
n.1 (4th Cir. 1988) (“We must . . . affirm the ALJ’s decision only upon
the reasons he gave.”).
Hunter v. Colvin, No. CA 2:12–00077–C, 2013 WL 1219746 (S.D. Ala. Mar. 25, 2013)
(initial emphasis added).
1.

The ALJ properly gave less than controlling weight to the
RFC determination provided by Dr. Hunte.

If an RFC from a treating source exists in the record, before the Court may
consider whether an ALJ’s RFC determination that does not give controlling weight
to the treating source RFC is supported by substantial evidence, it must first
determine whether substantial evidence supports the reasons the ALJ articulated
for not giving controlling weight to the opinions of the treating source. See, e.g.,
Thomas v. Astrue, No. CA 11–0406–C, 2012 WL 1145211, at *9 (S.D. Ala. Apr. 5,
2012) (“Because the undersigned finds that the ALJ did not explicitly articulate an
adequate reason, supported by substantial evidence, for rejecting a portion of [the
treating physician’s] PCE assessment, this Court must necessarily find that the
ALJ’s RFC determination is not supported by substantial evidence.”).8

8

As discussed below, if substantial evidence supports those reasons, the Court

14

As to treating source opinions, the law in this Circuit is that they
“must be given substantial or considerable weight unless ‘good cause’ is
shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir.1997).9 Good cause is shown 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. Where the ALJ articulate[s] specific reasons for failing to
give the opinion of a treating physician controlling weight, and those
reasons are supported by substantial evidence, there is no reversible
error. Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
Gilabert v. Commissioner of Soc. Sec., 396 Fed. App’x 652, 655 (11th Cir. Sept. 21,
2010) (per curiam) (some internal citations modified and footnote added); accord
D’Andrea v. Commissioner of Soc. Sec. Admin., 389 Fed. App’x 944, 947-48 (11th Cir.
July 28, 2010) (per curiam).
Here, the ALJ found that, “[a]lthough Dr. Hunte is [Warbington’s] treating
physician, his opinions are not given controlling weight for several reasons[,]”
including “limitations in the opinions are inconsistent his treatment of [Warbington]

then must determine whether the ALJ’s RFC assessment is linked to specific evidence in the
record regarding the plaintiff’s ability to perform the physical, mental, sensory, and other
requirements of work. If the ALJ’s decision provides such linkage—that is, it gives this
Court a sufficient rationale to link the remaining record evidence to her legal
conclusions—the ALJ’s decision is supported by substantial evidence and will be affirmed.
“In every case, a treating physician will have greater access to the medical
records, and more familiarity with the patient and his condition than will an examining
physician or a physician who merely reviewed the record evidence. This is the reason for
the treating physician rule whereby greater deference is usually accorded to the opinion of a
treating physician than the opinion of a physician who has only examined the patient one
time or the opinion of a physician who has merely reviewed the medical records. This is the
reason the courts require an ALJ to provide specific, legitimate reasons for discounting a
treating physician’s opinion.” Vine v. Astrue, Civil Action No. 09-2212-KHV-GBC, 2010 WL
2245079, at *11 (D. Kan. May 11, 2010) (internal citations omitted), report &
recommendation adopted, 2010 WL 2245076 (D. Kan. June 2, 2010).
9

15

and the objective findings from examination and testing. . . . Despite the
conservative treatment and minimal objective findings, Dr. Hunte assessed
significant restrictions on [Warbington’s] work activities that are incongruent with
the medical records.”

(R. 23.)

As multiple courts, including this one, have found,

“[i]t is entirely appropriate for the ALJ to rely on the conservative nature of
treatment in assessing the extent of impairment and . . . to discount [a] treating
physician’s conclusions.”

McMillian, 2012 WL 1565624, at *8 n.6 (quoting

Beveridge v. Commissioner of Soc. Sec., No. 10–12883, 2011 WL 4407564, at *6 (E.D.
Mich. July 18, 2011) (citing cases)); see also Burney v. Astrue, No. CV 111–156, 2012
WL 5199760, at *3 (S.D. Ga. Sept. 28, 2012) (“A course of conservative treatment
may be used to discount a doctor’s assessment of a plaintiff as disabled.” (citation
omitted)), report and recommendation adopted, 2012 WL 5199747 (S.D. Ga. Oct. 22,
2012); Patterson v. Astrue, No. 1:07–cv–00129–MP–AK, 2008 WL 4097461, at *1
(N.D. Fla. Aug. 27, 2008) (“[A] contradiction between a treating physician’s opinion
and her own medical records has been held to constitute one possible sufficient
ground for rejecting a treating physician’s opinion.” (citing Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997)); cf. Madison v. Astrue, No. 08-1243-JTM, 2009 WL
1873811, at *5 (D. Kan. June 30, 2009) (“An ALJ may give less weight to the opinion
of a physician when it is inconsistent with the other substantial evidence in the
record.” (citing Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007))).
Because the ALJ has articulated an appropriate reason to not give Dr.
Hunte’s opinion controlling weight, and because that reason is supported by
16

substantial evidence, the undersigned will now turn to the ALJ’s RFC
determination, to examine whether that assessment is linked to specific evidence in
the record regarding the plaintiff’s ability to perform the physical, mental, sensory,
and other requirements of work. See, e.g., Salter, 2012 WL 3817791, at *3.
2.

The ALJ’s RFC assessment is supported by substantial
evidence and due to be affirmed.

A plaintiff’s RFC—which “includes physical abilities, such as sitting, standing
or walking, and mental abilities, such as the ability to understand, remember and
carry out instructions or to respond appropriately to supervision, co-workers and
work pressure”—“is a medical assessment of what th[at plaintiff] can do in a work
setting despite any mental, physical or environmental limitations caused by [his or
her] impairments and related symptoms.”

Watkins, 457 Fed. App’x at 870 n.5

(citing 20 C.F.R. §§ 404.1545(a)-(c), 416.945(a)-(c)).

At the fourth step of the

sequential analysis, at which the ALJ determines a plaintiff’s RFC, an ALJ utilizes
the plaintiff’s past relevant work as a starting point, from which his or her current
impairments (or at least those documented by credible evidence) are deducted, to
determine: (1) the RFC; and (2) whether that RFC allows the plaintiff to perform his
or has past relevant work or, if not, whether, considering that RFC, along with the
plaintiff’s age, education, and work experience, there are other jobs he or she can
perform.10

See id. (“The ALJ’s finding as to a [plaintiff’s] RFC is based on all the

Indisputably, an ALJ is never going to find an RFC that is in excess of a
plaintiff’s past-relevant work, as that work is categorized by the ALJ. Therefore, if a
claimant had past relevant work in the medium and light range—as categorized by the
ALJ—an ALJ is not going to then find an RFC greater than medium work and, indeed,
10

17

relevant evidence in the record, including any medical evidence, and is used in
steps four and five of the sequential evaluation to determine whether the claimant
can do her past relevant work or any other work.” (citing §§ 404.1545(a)(1), (5),
416.945(a)(1), (5)) (emphasis added)); cf. Morin v. Secretary of Health & Human
Servs., 835 F. Supp. 1414, 1430 (D.N.H. 1992) (“There is little doubt that RFC
assessments submitted by SSA experts will serve, at the very least, as a starting
point in the ALJ’s determination of an individual’s ultimate RFC. This is so, even
when submitted without benefit of claimant’s testimony at the hearing [or] without
benefit of further medical evidence submitted at the time of the hearing. However,
the Secretary’s regulations provide for a modifying process that is responsive to the
impact of a claimant’s particular symptoms, such as pain, on his or her RFC as
it is otherwise assessed. . . .” Moreover, “the benchmark of the fact-specific process
is an individualized evaluation.

That process of possibly modifying an RFC

necessarily takes into account claimant’s credibility on subjective matters.”
(citations omitted and emphasis added)).
Here, at the fourth step, the ALJ determined Warbington’s RFC as follows:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform a
limited range of light work as defined in 20 CFR 416.967(b). She can
might even “default” to light work. Cf. Squires v. Astrue, Civil No. 07-5096, 2008 WL
1776941, at *9 (W.D. Ark. Mar. 24, 2008) (rejecting a plaintiff’s argument “that the ALJ
[erred] in concluding that she could return to work at a heavier exertional level than she had
ever performed in the past”; in doing so, the court noted that the VE was present during the
plaintiff’s description of her past work as a caregiver and “categorized the caregiver job
based on plaintiff’s own description of the position, which would qualify the job as heavy
work” under the regulations (citations omitted)).

18

lift and carry up to twenty pounds occasionally and ten pounds
frequently. She needs to alternate between sitting and standing
approximately every hour without leaving the workstation. She can
frequently handle and finger because of the mild carpel tunnel
syndrome. She can occasionally operate foot controls; climb stairs and
ramps; bend; stoop; kneel; crouch; and crawl. She can tolerate
occasional exposure to temperature extremes, humidity and wetness,
and concentrated environmental pollutants. She is unable to climb
ladders, scaffolds, or ropes or work at unprotected heights or around
dangerous equipment. She is limited to unskilled work involving only
short, simple and one to two step tasks. She must avoid complex or
detailed instructions or tasks. She is unable to work in crowds and is
limited to jobs with minimal changes in the work setting and routines.
(R. 17.)

The ALJ also succinctly summarized the foundations for these

limitations—on Warbington’s ability to perform the physical, mental, sensory, and
other requirements of work—later in her decision.

These foundations are,

importantly, for purposes of facilitating this Court’s review, all supported by record
evidence. As documented by the ALJ, Warbington
can lift and carry up to twenty pounds occasionally and ten pounds
frequently. More strenuous lifting and carrying is precluded by the
pain and limitations that could reasonably result from the chronic back
pain and migraine headaches. She can sit for six hours in an
eight-hour workday and stand and/or walk for six hours in an
eight-hour workday, but she needs to alternative between sitting and
standing approximately every hour without leaving the workstation
because of the chronic back pain. She can frequently, but not
constantly, handle and finger because of the mild carpal tunnel
syndrome. She can occasionally operate foot controls; climb ladders,
scaffolds, and ropes; bend; stoop; kneel; crouch; and crawl due to the
limitations caused by the chronic back pain and history of syncope and
vertigo.
She can tolerate occasional exposure to temperature
extremes, humidity and wetness, and concentrated environmental
pollutants as a result of the migraine headaches and history of syncope
and vertigo. She is unable to climb ladders, scaffolds, or ropes or work
at unprotected heights or around dangerous equipment due to the
migraine headaches and history of syncope and vertigo. She is limited
to unskilled work involving only short, simple and one to two step job
tasks; she must avoid complex or detailed instructions or tasks; and she
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is unable to work in crowds and is limited to jobs with minimal changes
in the work setting and routines because of the limitations in social
functioning and concentration, persistence or pace caused by the
anxiety and depression.
(R. 21.)
In her brief, Warbington “submit[s] that there is inadequate support for [the
ALJ’s RFC assessment] because the record contains no physical RFC assessment
from any physician which supports the difference in the ALJ’s assigned RFC from
the opinion of . . . Dr. Hunte . . . .”

(Doc. 14 at 6.)

But, as explained to Warbington

in the order denying the request to waive oral argument (Doc. 24), and restated
above, as long as an ALJ’s RFC determination is supported by—and linked
to—substantial and tangible evidence regarding her current ability to perform the
physical, mental, sensory, and other requirements of work, there need not be an RFC
determination from a physician.11

See, e.g., Salter, 2012 WL 3817791, at *3. As

shown by the ALJ’s extensive review, and analysis, of the record evidence (see R.
17-24) and, moreover, by her helpful summary (see R. 21, excerpted above)—linking
the work limitations she imposed to Warbington’s impairments that are documented
by credible evidence—it is clear that the ALJ’s RFC assessment is thorough. Such
thoroughness facilitates a meaningful review by this Court. And that review has,
in turn, confirmed that the assessment is supported by substantial evidence.12

As also explained above, if the record contains an RFC from a treating source,
as does the record here, the ALJ must also articulate, as the ALJ did here, an appropriate
reason, supported by substantial evidence, to not give the treating source’s opinion
controlling weight.
11

12

After, properly, choosing not to give controlling weight to Dr. Hunte’s physical

20

Finally, it is noteworthy that, after, first, being placed on notice that her
reliance on Coleman v. Barnhart was misplaced and, second, being apprised of the
correct legal analysis, (see generally Doc. 24), Warbington, at the hearing, still failed
to argue that the ALJ’s RFC assessment was not linked to pertinent substantial
record evidence.
Therefore, in the course of determining Warbington’s RFC, the ALJ properly
evaluated, and made proper findings regarding, the medical opinion evidence. And
this claim of error is also due to be rejected.
IV.

Conclusion

Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying Warbington benefits be AFFIRMED.
DONE and ORDERED this the 16th day of December, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

RFC assessment, of less than light work (see R. 425), Warbington’s past relevant work as a
personal care assistant, classified as physically exertional “medium work” (see R. 25), clearly
provided the starting point for the ALJ’s assessment of Warbington’s current physical
exertional level. Compare R. 17 (assigning an RFC of “a limited range of light work[,]”
including the ability to “lift and carry up to twenty pounds occasionally and ten pounds
frequently” and the need “to alternate between sitting and standing approximately every
hour without leaving the workstation”), with 20 C.F.R. § 416.967(b)-(c) (defining “light work”
as involving “lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds” and/or sometimes requiring “a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls,” and “medium work” as involving “lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds”).

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