Busby v. Colvin

Filing 23

MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 11/25/2013. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALESIA D. BUSBY,
Plaintiff,
vs.

:
:
:

CA 13-0120-C

CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial
review of a final decision of the Commissioner of Social Security denying her claim for
supplemental security income benefits. The parties have consented to the exercise of
jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings
in this Court. (Docs. 19 & 20 (“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, . . . order the entry of a final judgment, and
conduct all post-judgment proceedings.”).) Upon consideration of the administrative
record, plaintiff’s brief, the Commissioner’s brief, and the arguments of the parties at
the November 21, 2013 hearing before the Court, it is determined that the
Commissioner’s decision denying benefits should be affirmed.1
1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 19 & 20 (“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.”))

Plaintiff alleges disability due to degenerative joint disease of the knee,
degenerative disc disease of the lumbar spine, major depressive disorder, and anxiety.
The Administrative Law Judge (ALJ) made the following relevant findings:
1.
The claimant has not engaged in substantial gainful activity since
October 8, 2010, the application date (20 CFR 416.971 et seq.).
2.
The claimant has the following severe impairments: degenerative
joint disease of the knee, degenerative disc disease of [the] lumbar
spine, major depressive disorder and anxiety (20 CFR 416.920(c)).
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3.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).
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.

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The severity of the claimant’s mental impairments, considered singly and
in combination, do not meet or medically equal the criteria of listings 12.04
and 12.06. In making this finding, I have considered whether the
“paragraph B” criteria are satisfied. To satisfy the “paragraph B” criteria,
the mental impairments must result in at least two of the following:
marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means
more than moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three episodes within
1 year, or an average of once every 4 months, each lasting for at least 2
weeks.
In activities of daily living, the claimant has mild restriction. . . . The
claimant alleges a severely limited daily routine, and indicates her sister
generally cares for her. However, her allegations that she is unable to
watch television and has severe issues attending to personal care are
contradicted by her statements of activities of daily living made to the
consultative examiner in January 2011. The objective medical evidence
fails to support that the claimant’s mental capacity to perform these basic
daily activities are limited to the extent alleged. In January 2011, the
claimant reported that she watches television, eats, and sleeps. She
performs light household chores such as dusting, but her sister fixes her
food. While she reported that she doesn’t like getting out of the house, by
the claimant’s own report in her function report, she does so when
needed. The claimant generally attributes her incapacity to perform tasks
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within the household on her physical condition. However, the severity of
her physical dysfunction alleged remained unsupported by the objective
medical evidence, without evidence supporting the medical need for daily
use of a knee brace, or periodic use of an assistive device in ambulation.
The claimant alleges severe deficits in her daily activities. However, the
evidence fails to support the claimant’s limited daily activities are caused
by her mental incapacity to perform these tasks.
In social functioning, the claimant has moderate difficulties. The claimant
alleges in her disability report that she suffers from severe problems due
to her mood disorder. She submitted a function report in December 2010
alleging that she has no significant social activities and even states that she
does not go to the doctor. She reports her condition affects her ability to
get along with others and her ability to talk. She reported that she stays to
herself and that she has problems getting along with family, friends, and
neighbors because she has outbursts. She reported she could get along
with authority figures okay at times, but this was before her bipolar
condition started, although the objective evidence does not support she
suffers from bipolar disorder. She also reports that she has phobias about
going outside and being around people, and stays to herself. However,
she also reported that her family members care for her and her sister takes
her where she needs to go, indicating that she remains able to interact
with family effectively, and travels outside the house when needed
despite her allegations to the contrary. . . . Two treating sources have
assessed marked deficits in social functioning. However, these treating
source assessments remain unsupported by objective clinical findings or
observations. They are also contradicted by findings provided in
treatment records. Treatment records found that between November 2010
and June 2012, the claimant demonstrated no limitations in speech or the
ability to communicate. Furthermore, the claimant’s mood fluctuated from
mild sadness or depression, to irritable and appropriate to the situation.
Her behavior was normal, and has not been engaging in self-injurious
behavior during the relevant period. Despite the claimant’s history of a
suicide attempt, the claimant’s allegations of hallucinations provided to
the consultative examiner are unsupported in any mental health treatment
records prior to the examination or after the examination. The clinical
findings provided in treatment records support no more than moderate
symptoms and limitations in her capacity to interact with others with
ongoing treatment.
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. The claimant alleges that she suffers from severe
problems attending to her daily routine, including limited maintenance of
personal hygiene or care. She also remains unable to perform any meal
preparation, household chores, or use public transportation, with her
sister transporting her to her appointments or shopping when necessary.
She alleges being unable to handle money, and reports she gets confused.
She reports her interests include watching television, but that she is not at
all able to do this anymore. She alleges her condition affects her ability to
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complete tasks, follow instructions, understand, and complete tasks. She
reported issues with memory and that she suffers from outbursts. She
notes being unable to pay attention for any significant period and that she
has problems getting her mind to work. Her treating physician and
psychiatrist assessed the claimant’s functioning in this area have marked
to extreme limitations in functioning. However, these assessments are
afforded no significant weight, as they are contradicted by the
corresponding mental health treatment records. The claimant’s treatment
records have continued to find no significant impairment in her memory
or concentration, and no significant impairment in her capacity to
communicate effectively. The claimant’s treatment records reveal
progressive improvement and stability with treatment, in spite of the
claimant’s ongoing allegations of a debilitating condition. The full record
continues to support no more than moderate deficits in this area during
the relevant period, further supported by ongoing treatment records and
the State agency psychological assessment.
As for episodes of decompensation, the claimant has experienced no
episodes of decompensation[] which have been of extended duration. The
claimant’s mental health treatment has remained limited to visits for
medication management. While the claimant reports she was admitted for
treatment following a suicide attempt, this episode was brief and not of
extended duration, and was stated to have occurred remote to the relevant
period. The claimant’s mental health treatment records reflect that with
treatment her symptoms have progressively improved with minimal
issues with the prescribed treatment. The claimant has reported some side
effects of sleepiness, but has not requested significant changes to
treatment. The claimant does not attend regular therapy sessions despite
numerous recommendations to do so, although she does attend periodic
medication management visits. Treatment notes on March 22, 2012
continued to encourage the claimant to see a therapist. She has not
exhausted the treatment options available, and the prescribed course of
treatment remains limited. The claimant’s condition has not required
further admissions for mental health treatment or hospitalizations, or the
need for changes in treatment of a degree that would support
decompensation. The objective medical evidence fails to support the
claimant’s condition has resulted in episodes of decompensation of
extended duration.
Because the claimant’s mental impairments do not cause at least two
“marked” limitations or one “marked” limitation and “repeated” episodes
of decompensation, each of extended duration, the “paragraph B” criteria
are not satisfied.
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4.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform less than the
full range of light work as defined in 20 CFR 416.967(b). The claimant
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can lift and carry 20 pounds occasionally and 10 pounds frequently. The
claimant has no restriction in the ability to sit, and standing/walking
would be limited to 30 minutes at a time but could be done throughout
the workday as long as there was a change in position every 30 minutes.
The claimant can [do] no more than occasionally operate foot controls or
climb ramps or stairs, but never climb ladders, ropes or scaffolds. The
claimant can never crawl or kneel, and [is] unable to work around
unprotected heights or dangerous equipment. The claimant must avoid
tasks that involve a variety of instructions or tasks, but is able to
understand and carry out simple one and two step instructions and
detailed but uninvolved written or oral instructions involving a few
concrete variables in or from standardized situations. The claimant must
have minimal changes in the work setting and routines. The claimant
must only be expected to make judgments on simple work related
decisions. The claimant must avoid production-paced work such as
work that is being pushed at them, but is able to perform goal-oriented
work. The claimant must avoid crowds and can have no more than
occasional and superficial contact with the public.
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The claimant reinitiated treatment from the Mostellar Medical Center in
July 2007. The claimant had not been seen for treatment there for three
years, and noted she had been under the care of another doctor. In
January 2011, the claimant underwent a consultative medical examination
performed by Elmo Ozment, M.D. The claimant reported periodic issues
with her back, beginning in 1997, but noted she has had no x-rays and had
sought no treatment for such a condition for years. Prior medical
treatment records between 2007 and 2010 reflected no significant
treatment sought or received for problems relating to the claimant’s back
complaints. She report[ed to Dr. Ozment] issues with her lower back as
well as problems with her left knee, including a history of arthroscopic
surgery performed on the left knee. The claimant reported that her
orthopedic pain [wa]s an estimated 10 on a 10-point scale, and that
nothing help[ed] the pain. As a result, she [reported being] unable to
perform work activity and can perform very little housework because it
hurts her back and left knee. . . . Despite the claimant’s orthopedic pain
and obesity, the claimant has not demonstrated the level of physical
dysfunction consistent with her allegations. She was observed to sit
comfortably and was able to get on and off the examination table without
difficulty. Her gait was normal. She could not squat and [was] unable to
heel-to-toe walk due to her back and knees, but could tandem walk. She
did not have an assistive device during the examination or a brace during
the examination, despite her [hearing] testimony that she uses the brace
daily and a cane when needed. There was limited range of motion of the
lumbar spine and left knee. Seated leg raise revealed pain in the knee and
a positive straight leg raise in both sides of the back. There was some
paravertebral muscle spasms and tenderness. However, there was no
deformity or crepitus. Her motor strength remained full. Her bulk and
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tone remained normal in her extremities. The clinical findings and
observations made by Dr. Ozment support the [finding that] the claimant
continues to suffer from orthopedic dysfunction. However, the evidence
does not support the debilitating condition alleged, and supports the
[finding that] claimant would be capable of functioning with physical
restrictions.
Ongoing medical treatment records continue to support the ongoing need
for medical treatment, but also provide clinical findings and objective
evidence that remain inconsistent with the severity of the claimant’s
allegations. The claimant sought treatment in April 2011, from the
Mostellar Medical Center. She was found to be in no apparent distress.
She had mild muscle spasm of the lumbar spine, with full range of motion
of the back with mild pain. There was also mild pain with straight leg
raising testing bilaterally. However, there was no pain with flexion or
lateral rotation of the knee. The lumbar x-rays showed mild degenerative
changes throughout the lumbar spine, but do not reflect the debilitating
condition alleged. The claimant sought treatment for left leg pain later the
same month, reporting it was painful to stand and [complaining of]
tingling in the left hand. However, venous Doppler imaging was negative.
Further radiological imaging taken in August 2011 showed evidence of
left knee osteoarthritis, but no evidence of acute fracture or dislocation of
the left knee. On examination, the claimant’s gait was antalgic and there
was no swelling. She had some pain of the left knee and back. Physical
therapy was prescribed along with anti-inflammatories and muscle
relaxers. However, the testing results and nature of treatment prescribed
does not reflect the type of treatment that is consistent with a debilitating
orthopedic condition.
Treatment in November 2011 was sought for a sore throat and earache,
minor and temporary ailments that have not persisted. However, this
record does not reflect any significant orthopedic complaints. The
claimant sought treatment for hemorrhoids in January 2012. However,
there were no significant changes [] made in her medical treatment. She
received gynecological treatment in May of 2012. Orthopedic findings
remain[ed] mild. Radiological imaging taken in April 2012 continued to
find only mild degenerative changes of the lumbosacral spine. As of June
2012, the claimant was seeking treatment for abdominal pain and there
were no records of complaints [regarding] orthopedic dysfunction. The
objective evidence provides evidence that while her back and knee may
cause limitations in functioning, they are not debilitating. Restrictions in
the claimant’s exertional capacity have been afforded, with particular
restrictions in standing and walking in order to accommodate the
combination of back and knee orthopedic issues, in combination with
obesity. Restrictions in postural function were similarly provided, also
contributing to restriction in working around dangerous equipment or
unprotected heights. Despite her allegations of the daily need for a knee
brace and occasional need to use a cane, she acknowledged at the hearing
that these assistive devices were not prescribed. Furthermore, the
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evidence does not support the claimant’s allegations regarding the
persistent use of these devices, as they were not observed by treating
sources to have been used with any regularity or the frequency alleged,
even in orthopedic treatment in August 2011. The restrictions provided
accommodate the claimant’s physical capacity to function as supported by
clinical findings and observations made of her medical condition, as
reflected in treatment and examination records.
An assessment of the claimant’s physical capacity to function and clinical
assessment of pain were submitted by the claimant’s treating medical
source, Eugene Fletcher, D.O. The claimant was assessed as capable of
performing the exertional requirements between the light and sedentary
exertional levels. Additional restrictions were assessed in postural and
environmental functioning. These functional restrictions were attributed
to the claimant’s major depressive disorder and recurrent moderate
generalized anxiety disorder. However, the mental impairments cited in
support by Dr. Fletcher do[] not support the physical restrictions in
functioning assessed. The degree of pain was assessed to distract from
adequate performance of work activities and that medication side effect[s]
can be expected to be severe and limit her effectiveness. However, Dr.
Fletcher also noted that the claimant was not seen for pain management.
The degree of pain assessed is inconsistent with the limited nature of
treatment prescribed, which at that time included anti-inflammatories,
muscle relaxers, and limited pain medications. The claimant was not being
prescribed the nature of pain medication[s] that would be consistent with
the level of pain assessed. There are significant inconsistencies between
the assessment provided by Dr. Fletcher and the clinical findings provided
in corresponding treatment records. Dr. Fletcher has provided
assessments of the claimant’s physical incapacity to function, based on
diagnosed mental impairments. This is outside Dr. Fletcher’s treating
medical relationship, and the clinical findings of record fail to support the
exertional, postural, or environmental restrictions noted. The degree of
pain assessed was accompanied by notes the claimant was not receiving
pain management [treatment] with Dr. Fletcher, and the claimant’s limited
ongoing treatment history is inconsistent with the debilitating condition
alleged. Therefore, Dr. Fletcher’s assessment of the claimant’s physical
capacity and pain are inconsistent with the full record and [are] afforded
little weight.
In addition to the claimant’s physical limitations in functioning, the
evidence also supports the [finding that the] claimant suffers from mental
impairments restricting her capacity to function. In February 2009, the
claimant was noted to be in the hospital following an attempted suicide,
but her admission for treatment was brief. Her prescribed mental health
treatment was noted to be limited, as the claimant had cancelled her first
therapy session that was scheduled on referral. Subsequent records in
March 2012 continued to encourage that she see a therapist, and indicates
she had not undergone any sustained therapy treatment. As of January
2010, she reported complaints of depression and not feeling well. She was
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assessed with anxiety and depression, and again referred [for] mental
health treatment. Treatment records from Altapointe Health Systems note
that the claimant was hospitalized in January 2009 for overdosing on pain
medications belonging to her sister. The claimant report[ed] that she has
problems getting along with others, and she quits jobs because she does
not want to be around others. She report[ed] crying, overeating, and
sleeping most of the day, as noted in September 2010. Despite her issues
with mood, the claimant’s mental status remains inconsistent with her
allegations of cognitive dysfunction. Her intellect was estimated to be
average at that time, and her memory and concentration were
unimpaired. The claimant’s mental health treatment leading up to the
application for benefits is limited, and has not demonstrated the severity
of functional limitations alleged.
The claimant complained of low energy and poor concentration in
November 2010, and reported that her mood was improved but [she] still
has mood swings. While these treatment records from Altapointe Health
Systems initially noted her complaints of poor concentration, low energy,
panic attacks, and sleeping through most of the day, she reported no
issues with the medications prescribed or side effects, and expressed her
desire to continue with the medications prescribed. Examination note[s]
[reflect] there was no impairment in memory or concentration noted, and
the thoughts were logical, coherent, and within normal limits. As of
January 2011, the claimant reported no side effects to the medications
prescribed for treatment of her depression and anxiety. She reported that
her depression has been improving, though she still feels depressed. The
mental status examination noted she was sad and suffers from mood
swings, but found her behavior to be normal. There was no impairment in
speech, despite the claimant’s allegations in her function report that her
ability to talk is affected. Her memory and concentration remained
unimpaired, and thoughts remain within normal limits. Treatment in
February 2011 noted limited improvement on the medications provided,
but her mental status remained relatively unchanged. Her mood was
normal but mildly depressed, her behavior was normal, and despite her
excessive sleep and appetite, her memory and concentration remain[ed]
unimpaired, with insight and judgment that is good and only mild
anxiety. She reported not having taken some of her medications in a
subsequent treatment record, due to financial circumstance[s]. However,
she also reported that she continues to take the Prozac without side effect,
and that her mood has been improving. She noted feeling tired and
having poor concentration, despite the clinical findings and no significant
changes were made in her prescribed treatment. Records of mental health
treatment in the months following the application date show
improvement in the claimant’s mental condition. Despite continued
complaints regarding depression and anxiety, she continue[d] to report no
significant side effects to medications, despite her allegations made at the
hearing. The evidence supports [that] her mental health treatment is
necessary, and has significantly improved the claimant’s condition.
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The claimant underwent a consultative psychological examination
performed by Annie Formwalt, Psy.D., in January 2011. The claimant
reported that she is unable to work due to borderline personality
[disorder] and bipolar [disorder], as well as a bad back. She reported
having been diagnosed with these impairments. While records in
November 2010 do include assessments of borderline personality
[disorder] and depression, the claimant was not diagnosed with bipolar
disorder, and subsequent treatment records do not support a
corroborating diagnosis of borderline personality. In addition to ongoing
complaints of mood swings and a history of taking her sister’s pain p[i]lls,
she also reported audio and visual hallucinations of a demon-like
creature, but explained that she has not mentioned her hallucinations to
her treating psychiatrist despite having received persistent mental health
treatment since January 2009. She reports that she has left prior jobs
because she has issues being around other people. Her daily activities
include watching television, eating, and sleeping, as well as dusting,
although the claimant alleged in her function report she is unable to watch
television. She was assessed with a mood disorder [by Dr. Formwalt], but
was expected to respond favorably to treatment. Her thought processes
were intact, and she did not appear to be confused. Her insight and
understanding were fair, and intelligence estimated to be low average to
borderline. The consultative examination reveals that mental health
treatment continues to be warranted. However, the claimant’s mental
status and reports to the consultative examiner remains inconsistent with
the claimant’s treatment records and evidence of continued improvement
with treatment, further supported by Dr. Formwalt’s prognosis. Her
mental status during the examination was limited, but well above the
debilitating condition alleged. She reported a number of symptoms that
are unsupported by clinical findings in treatment records . . . . Despite
reporting having visual and audio hallucinations of approximately thirtyeight years to the consultative examiner, the claimant has failed to report
any such concerns to any treating mental health sources in previous
treatment visits from January 2009 through the 2011 examination. The
clinical findings and the claimant’s treatment history remain inconsistent
with the nature and severity of her allegations. The claimant’s reports of
hallucinations and her incapacity to perform even basic tasks are
inconsistent with records of treatment during the corresponding period.
The objective findings support [the determination that] she retains a
substantially higher level of functioning than alleged.
During March 2011 mental health treatment, the claimant reported that
she suffers from frequent panic attacks for the past six years, estimating
suffering from three to four panic attacks a day, lasting about thirty
minutes each. However, this is inconsistent with her allegations made in
prior treatment records, which fail to reflect such severe and frequent
panic attacks. She also reported worsening depression[] over the past four
to five years. She reports that she is unable to sustain work because she
has panic attacks and poor concentration. However, on examination[,] she
was found to be [only] mildly depressed, with an affect appropriate to the
9

situation. There was no impairment in speech, and no impairment was
found in her memory or concentration. She had been taking the
medications as prescribed, without side effect and with good result, as
noted by Shao Hua Ye, M.D. She reported her mood was improving. Dr.
Ye assessed she has a global assessment of functioning (GAF) score of 5160, consistent with moderate symptoms and limitations. Her mood
continued to be depressed but improved, with no impairment in memory
or concentration despite her allegations. The claimant continued to report
no side effects to her current medications, despite testimony that her
medication side effects are severe and contribute to her sleeping through
most of the day. The claimant continued to report compliance [with] the
prescribed treatment, no significant side effects, and fair results from the
medications provided, and mildly depressed, with unimpaired memory
and concentration, in subsequent May, June, August, and September 2011
treatment visits. As of October 2011, the claimant continued to report
depressive symptoms. Examination noted mild sadness, but no
impairment in speech, normal behavior, with unimpaired memory and
concentration and no anxiety indicated. Her insight and judgment were
fair and perceptions were within normal limits. Records as of January
2012 noted that she has been compliant with treatment, as her sister
continues to control the distribution of medications, with some
improvement in her depressive and anxiety symptoms, without
significant side effects. No significant adjustments in treatment were
warranted, and the claimant’s mental health treatment continues to
demonstrate that sustained compliance continues to result in progressive
improvement in the claimant’s condition.
The claimant’s most recent records of treatment continue to support
significant improvement in the claimant’s impairments with the treatment
provided. The claimant reported in March 2012 that she was doing okay.
She revealed that medications continue to be administered by her sister,
and that she sleeps a lot. She reports compliance with the current
medications and some improvement in her depressive symptoms and
anxiety without side effects other than some sleepiness. However, there
were no significant efforts to adjust her treatment. Her mood was found to
be normal and anxiety was mild, with no impairment in speech. Her
behavior was normal, and her perception was within normal limits. Her
memory and concentration remained unimpaired. Similar findings are
noted in treatment [records] between March and June 2012. She continued
to report she is depressive at times, but stable emotionally with the
medicines. She also denies adverse medication effects in June 2012. The
claimant’s ongoing treatment records reveal that ongoing mental health
treatment is warranted, as supported by records from Altapointe Health
Systems. However, these records continue to demonstrate that the
claimant’s condition has improved significantly and remain[s] stable with
the treatment prescribed. There is evidence of some medication side
effects of sleepiness, but no significant efforts or requests made to seek an
alternative medication. The claimant’s mental condition continued to
reflect generally mild or normal findings, especially in the areas of mood,
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behavior, speech, memory, concentration, judgment and insight. The
objective medical evidence does support that the claimant’s slight
medication side effects would merit restriction in working around work
hazards. The residual symptoms of her depression and anxiety are
provided [with] restrictions in social functioning and concentration,
persistence or pace. While she generally demonstrates mild symptoms in
these areas, moderate limitations are afforded in order to accommodate
fluctuations in her condition.
Treating source Dr. Ye submitted an assessment of her mental capacity to
function in March 2011. The claimant was assessed with marked
limitations in activities of daily living, social functioning, and
concentration, persistence or pace, with four or more episodes of
decompensation. However, the evidence fails to support the severity of
functional limitations alleged. Dr. Ye failed to provide any assessment
regarding the duration in which such marked deficits began. Furthermore,
Dr. Ye noted that the claimant suffers from side effects of sedation due to
the medications. However, this is contradicted by corresponding findings
from Dr. Ye’s own office notes that continued to find there were no
medication side effects, as noted in treatment records from November
2010 through September 2011. The assessment of marked deficits in
functioning is inconsistent with treatment notes, including findings that
the claimant was mildly depressed, and that her concentration and
attention are unimpaired. The GAF score assessed in March 2011 further
support[s] only moderate symptoms or limitations, contradicting Dr. Ye’s
March 2011 assessment. The record supports a history of a brief
hospitalization reported to be remote to the relevant period, due to a
suicide attempt. However, the evidence does not support [that] this was of
extended duration, and the full record fails to document Dr. Ye’s
assessment of four or more episodes of decompensation. The claimant’s
mental health treatment during the relevant period has remained limited
to periodic medication management, inconsistent with periods of
decompensation. Clinical findings have remained consistent, and mild in
nature. Dr. Ye’s assessment is considered as psychiatric treating source
opinion evidence. However, this assessment is inconsistent with the
clinical findings and objective evidence provided in treatment records,
inconsistent with Dr. Ye’s own office notes, as well as failing to determine
the duration for which such limitations were assessed. Based on the lack
of objective support and inconsistencies with corresponding treatment
records, Dr. Ye’s assessment is afforded little weight.
An assessment of the claimant’s mental capacity to function was
submitted by treating medical source Dr. Fletcher. Dr. Fletcher assessed
the claimant suffers from moderate restrictions in activities of daily living,
marked limitations in social functioning, and extreme deficits in
concentration, persistence or pace, with four or more episodes of
decompensation. The claimant was assessed with marked and extreme
limitations in performing tasks in the work setting. Dr. Fletcher also found
that her mental impairments have affected her since childhood, but
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worsened over the past five years. Despite alleging marked and extreme
limitations in functioning, Dr. Fletcher also noted that the claimant’s
condition was expected to improve with treatment. Dr. Fletcher’s
assessment of marked and extreme limitations in mental functioning is
afforded no significant weight. Corresponding mental health treatment
records regularly noted the claimant to have logical thoughts and
unimpaired concentration, from November 2010 through January 2012.
The claimant’s mental condition has been determined to warrant ongoing
mental health treatment, but not of the degree consistent with Dr.
Fletcher’s assessment. The full record fails to support this assessment of
her mental capacity . . . and this assessment was afforded no significant
weight based on the inconsistencies with the objective treatment records.
An assessment of the claimant’s mental capacity to function was
performed by State agency psychological consultant Donald Hinton,
Ph.D., [o]n January 20, 2011. The claimant was assessed[] to suffer from
mild restriction in activities of daily living, moderate difficulty in
maintaining social functioning and concentration, persistence or pace,
with no episodes of decompensation. The claimant’s records of treatment
were evaluated in light of her continued level of activities. The evidence
cited supports the degree of functional limitations alleged. While there is
additional evidence made available at the hearing level, the degrees of
functional limitations assessed by Dr. Hinton continues to be supported
by the additional evidence. Dr. Hinton’s opinion evidence was afforded
significant weight, but with deference afforded to the additional evidence
made available at the hearing level. Based on the combination of Dr.
Fletcher’s assessment and additional treatment, the claimant was afforded
significant restrictions in the complexity of tasks and instructions, changes
in the workplace, the pace of work performed, and exposure to crowds
and the public. Therefore, moderate restrictions were provided in these
areas in order to accommodate the claimant’s condition.
. . . The claimant has a long history of treatment, and ongoing records
support she continues to require ongoing medical and mental health
treatment. Despite the frequency and persistence of her treatment, the
clinical and diagnostic findings still do not support the severity of the
claimant’s allegations. The evidence reveals that despite initial concerns
regarding her access to treatment, she has generally had treatment
through the relevant period. The claimant has reported problems
obtaining and taking all of the medications prescribed, due to financial
circumstance[s], as noted in February 2011 mental health treatment
records. However, medical treatment records in March 2009 reported
efforts to get the claimant on a prescription assistance program, indicating
the claimant would have notice that such options are available to alleviate
costs of her treatment. Furthermore, records in June 2012 include evidence
that the claimant has Medicaid coverage, which indicate she has access to
continued treatment. Despite generally having access to treatment, the
claimant’s prescribed treatment has remained unchanged. There are no
records of significant adjustments in treatment or an aggressive course of
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care. The claimant’s mental impairments are addressed with medication
management, with clinical findings showing mild symptoms through the
relevant period. She has not received a significant record of therapy
despite ongoing encouragement to do so from her treating psychiatrist, as
noted on March 22, 2012. Despite repeated allegations that her
concentration is insufficient to perform work activity, the claimant’s
concentration continues to be found [] unimpaired. She has alleged
frequent anxiety and panic attacks, numerous times daily. However, this
remains unsupported by treatment records which found her anxiety to be
no more than mild. Despite the claimant’s allegations, her longitudinal
treatment history illustrates a mental condition that generally remains
mildly limited, but even accommodating fluctuations and exacerbations,
has not been more than moderately limited during the relevant period.
The claimant has provided conflicting accounts regarding the nature and
severity of her various symptoms and limitations in functioning. In the
January 2011 examination report, she initially stated that five years ago
she began hearing voices in her head. However, she then reported
following a command hallucination two years earlier, resulting in taking
her sister’s pain pills. The claimant then reported that she also sees small
demon[-]like creatures that she has seen since age ten, which according to
her date of birth, was a period of approximately thirty-eight years. Despite
the length of visual hallucinations, the claimant then reported that she has
not reported these hallucinations to her treating psychiatrist, Dr. Ye.
However, this is inconsistent with the severity and long history of these
allegations. She alleges severe and persistent hallucinations during the
consultative examination, but does not report any such concerns to any
medical or psychological sources for purposes of treatment. The
consultative examiner noted that the claimant’s statements are
questionable. The claimant states that she suffers from severe issues with
hallucinations when she is reporting to the consultative examiner for
purposes of seeking disability. However, she acknowledges she has failed
to raise these issues with her treating psychiatric source and as a result has
not requested any treatment for such symptoms, despite the alleged
severity these hallucinations have on her mental health. She also failed to
raise any significant concerns with hallucinations in subsequent treatment
visits after the consultative examination. The claimant failed to raise these
issues with treating sources despite the duration of these problems,
alleging that she suffers from significant hallucinations for nearly four
decades. The claimant’s allegations are not only unsupported by the
evidence, but her numerous inconsistent statements further limit the
credibility of her allegations regarding the nature and severity of her
functional restrictions.
The claimant’s statements that there are a number of impairments which
influence the claimant’s capacity to function are generally credible.
However, allegations regarding the nature and extent of the claimant’s
functional limitations remain inconsistent with the objective medical
records and other evidence. In light of the full record, the claimant’s
13

allegations regarding the severity of limitations are found to be no more
than partially credible.
In sum, the above residual functional capacity assessment is supported by
the objective medical evidence including radiological imaging, laboratory
testing results, diagnostic and clinical findings, and other evidence
provided in treatment and examination records. The above residual
functional capacity assessment is also supported by medical and
psychological opinion evidence, without contradictory treating medical
source opinion evidence that is supported by the objective medical
evidence. Additional factors supporting the residual functional capacity
assessment include the claimant’s longitudinal treatment history and
inconsistent statements.
5.
The claimant is unable to perform any past relevant work (20
CFR 416.965).
.

.

.

6.
The claimant was born on September 16, 1962 and was 48 years
old, which is defined as a younger individual age 18-49, on the date the
application was filed. The claimant subsequently changed age category
to closely approaching advanced age (20 CFR 416.953).
7.
The claimant has a limited education and is able to communicate
in English (20 CFR 416.964).
8.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferrable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
9.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
416.969 and 416.969(a)).
.

.

.

If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.18 and Rule 202.11. However, the claimant’s
ability to perform all or substantially all of the requirements of this level of
work has been impeded by additional limitations. To determine the extent
to which these limitations erode the unskilled light occupational base, I
asked the vocational expert whether jobs exist in the national economy for
an individual with the claimant’s age, education, work experience, and
14

residual functional capacity. The vocational expert testified that given all
of these factors the individual would be able to perform the requirements
of representative occupations such as follows: . . . Tube Operator[, DOT
Code] 239.687-014[,] 100,000 US[/]1,200 AL[,] . . . Sedentary[, and]
[u]nskilled[;] Traffic Checker[, DOT Code] 205.367-058[,] 200,000
US[/]3,700 AL[,] . . . Light[, and] [u]nskilled[; and] Caller[, DOT Code]
215.563-010[,] 100,000 US[/] 800 AL[,] . . . Light[, and] [u]nskilled[.]
Pursuant to SSR 00-4p, I have determined that the vocational expert’s
testimony is consistent with the information contained in the Dictionary of
Occupational Titles. The vocational expert testified credibly regarding
slightly limited standing and walking. The explanation provided was
based upon the observations of the work activity performed, and was
found to be persuasive in resolving any likely discrepancies. The
vocational expert testimony was found to be persuasive.
Based on the testimony of the vocational expert, I conclude that,
considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant is capable of making a successful
adjustment to other work that exists in significant numbers in the national
economy. A finding of “not disabled” is therefore appropriate under the
framework of the above-cited rules.
10.
The claimant has not been under a disability, as defined in the
Social Security Act, since October 8, 2010, the date the application was
filed (20 CFR 416.920(g)).
(Tr. 21, 22, 22-23, 23, 23-24, 24, 24-25, 25, 27, 27-30, 30-33, 33-34, 35 & 35-36 (internal
citations omitted; emphasis in original).)

The Appeals Council affirmed the ALJ’s

decision (Tr. 1-3) and thus, the hearing decision became the final decision of the
Commissioner of Social Security.
DISCUSSION
In all Social Security cases, the claimant bears the burden of proving that she is
unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (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; and (4) the claimant’s age, education and
work history.

Id. at 1005. Once the claimant meets this burden, it becomes the
15

Commissioner’s burden to prove that the claimant is capable, given her age, education
and work history, of engaging in another kind of substantial gainful employment,
which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform those light and
sedentary jobs identified by the vocational expert, 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining
whether substantial evidence exists, we 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).2
In this case, the plaintiff contends that the following errors were made: (1) the
Commissioner erred in rejecting the opinions of her treating physicians; and (2) the
Commissioner erred in rendering a residual functional capacity assessment that is not
supported by the medical opinion of a treating or examining source and lacks an
articulation of linkage to the medical evidence of record. Because these are related
issues, the Court will address each issue in the context of its residual functional capacity
analysis.
The Eleventh Circuit has made clear that “[r]esidual functional capacity, or RFC,
is a medical assessment of what the claimant can do in a work setting despite any
2

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

16

mental, physical or environmental limitations caused by the claimant’s impairments
and related symptoms.” Peeler v. Astrue, 400 Fed.Appx. 492, 493 n.2 (11th Cir. Oct. 15,
2010), citing 20 C.F.R. § 416.945(a). Stated somewhat differently, “[a] claimant’s RFC is
‘that which [the claimant] is still able to do despite the limitations caused by his . . .
impairments.’” Hanna v. Astrue, 395 Fed.Appx. 634, 635 (11th Cir. Sept. 9, 2010), quoting
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). “In making an RFC
determination, the ALJ must consider all the record evidence, including evidence of
non-severe impairments.” Hanna, supra (citation omitted); compare 20 C.F.R. §§
404.1545(a)(1) & 416.945(a)(1) (2011) (“We will assess your residual functional capacity
based on all the relevant evidence in your case record.”) with 20 C.F.R. §§ 404.1545(a)(3)
& 416.945(a)(3) (“We will assess your residual functional capacity based on all of the
relevant medical and other evidence.”).
From the foregoing, it is clear that the ALJ is responsible for determining a
claimant’s RFC, a deep-seated principle of Social Security law, 20 C.F.R. § 404.1546(c)
(“If your case is at the administrative law judge hearing level under § 404.929 or at the
Appeals Council review level under § 404.967, the administrative law judge or the
administrative appeals judge at the Appeals Council (when the Appeals Council makes
a decision) is responsible for assessing your residual functional capacity.”); see also 20
C.F.R. § 416.946(c) (same), that this Court has never taken issue with. See, e.g., Hunington
ex rel. Hunington v. Astrue, No. CA 08-0688-WS-C, 2009 WL 2255065, at *4 (S.D. Ala. July
28, 2009) (“Residual functional capacity is a determination made by the ALJ[.]”) (order
adopting report and recommendation of the undersigned). The regulations provide,
moreover, that while a claimant is “responsible for providing the evidence [the ALJ] . . .
use[s] to make a[n] [RFC] finding[,]” the ALJ is responsible for developing the
claimant’s “complete medical history, including arranging for a consultative
17

examination(s) if necessary,” and helping the claimant get medical reports from his own
medical sources. 20 C.F.R. §§ 404.1545(a)(3) & 416.945(a)(3). In assessing RFC, the ALJ
must consider any statements about what a claimant can still do “that have been
provided by medical sources,” as well as “descriptions and observations” of a
claimant’s limitations from his impairments, “including limitations that result from []
symptoms, such as pain[.]” Id.
In determining a claimant’s RFC, the ALJ considers a claimant’s “ability to meet
the physical, mental, sensory, or other requirements of work, as described in
paragraphs (b), (c), and (d) of this section.” 20 C.F.R. §§ 404.1545(a)(4) & 416.945(a)(4).
(b) Physical abilities. When we assess your physical abilities, we
first assess the nature and extent of your physical limitations and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking, lifting,
carrying, pushing, pulling, or other physical functions (including
manipulative or postural functions, such as reaching, handling, stooping
or crouching), may reduce your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first
assess the nature and extent of your mental limitations and restrictions
and then determine your residual functional capacity for work activity on
a regular and continuing basis. A limited ability to carry out certain
mental activities, such as limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to supervision,
coworkers, and work pressures in a work setting, may reduce your ability
to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically
determinable impairment(s), such as skin impairment(s), epilepsy,
impairment(s) of vision, hearing or other senses, and impairment(s) which
impose environmental restrictions, may cause limitations and restrictions
which affect other work-related abilities. If you have this type of
impairment(s), we consider any resulting limitations and restrictions
which may reduce your ability to do past work and other work in
deciding your residual functional capacity.
20 C.F.R. §§ 404.1545(b), (c) & (d) and 416.945(b), (c) & (d).

18

Against this backdrop, this Court starts with the proposition that an ALJ’s RFC
determination necessarily must be supported by substantial evidence. Compare Figgs v.
Astrue, 2011 WL 5357907, *1 & 2 (M.D. Fla. Oct. 19, 2011) (“Plaintiff argues that the ALJ’s
residual functional capacity (‘RFC’) determination is not supported by substantial
evidence. . . . [The] ALJ’s RFC Assessment is [s]upported by substantial record
evidence[.]”), report & recommendation approved, 2011 WL 5358686 (M.D. Fla. Nov. 3,
2011) and Scott v. Astrue, 2011 WL 2469832, *5 (S.D. Ga. May 16, 2011) (“The ALJ’s RFC
Finding Is Supported by Substantial Evidence[.]”), report & recommendation adopted, 2011
WL 2461931 (S.D. Ga. Jun. 17, 2011) with Green v. Social Security Administration, 223
Fed.Appx. 915, 923 & 923-924 (11th Cir. May 2, 2007) (per curiam) (“Green argues that
without Dr. Bryant’s opinion, there is nothing in the record for the ALJ to base his RFC
conclusion that she can perform light work. . . . Once the ALJ determined that no weight
could be placed on Dr. Bryant’s opinion of [] Green’s limitations, the only documentary
evidence that remained was the office visit records from Dr. Bryant and Dr. Ross that
indicated that she was managing her respiration problems well, that she had controlled
her hypertension, and that her pain could be treated with over-the-counter medication.
Thus, substantial evidence supports the ALJ’s determination that Green could perform
light work.”). And while, as explained in Green, supra, an ALJ’s RFC assessment may be
supported by substantial evidence even in the absence of an opinion by an examining
medical source about a claimant’s residual functional capacity, specifically because of
the hearing officer’s rejection of such opinion,3 223 Fed.Appx. at 923-924; see also id. at

3

An ALJ’s articulation of reasons for rejecting a treating source’s RFC assessment
must, of course, be supported by substantial evidence. Gilabert v. Commissioner of Social Security,
396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010) (“Where the ALJ articulated 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. In this case, therefore, the critical

(Continued)
19

923 (“Although a claimant may provide a statement containing a physician’s opinion of
her remaining capabilities, the ALJ will evaluate such a statement in light of the other
evidence presented and the ultimate determination of disability is reserved for the
ALJ.”), nothing in Green can be read as suggesting anything contrary to those courts—
including this one—that have staked the position that the 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.4 Compare, e.g.,

question is whether substantial evidence supports the ALJ’s articulated reasons for rejecting
Thebaud’s RFC.”) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)); D’Andrea v.
Commissioner of Social Security Admin., 389 Fed.Appx. 944, 947-948 (11th Cir. Jul. 28, 2010) (per
curiam) (same).
4

In Green, supra, such linkage was easily identified since the documentary
evidence remaining after the ALJ properly discredited the RFC opinion of the treating physician
“was the office visit records from Dr. Bryant and Dr. Ross that indicated that [claimant] was
managing her respiration problems well, that she had controlled her hypertension, and that her
pain could be treated with over-the-counter medication.” 223 Fed.Appx. at 923-924. Based upon
such nominal clinical findings, the court in Green found “substantial evidence support[ing] the
ALJ’s determination that Green could perform light work.” Id. at 924; see also Hovey v. Astrue,
Civil Action No. 1:09CV486-SRW, 2010 WL 5093311, at *13 (M.D. Ala. Dec. 8, 2010) (“The
Eleventh Circuit’s analysis in Green, while not controlling, is persuasive, and the court finds
plaintiff’s argument . . . that the ALJ erred by making a residual functional capacity finding
without an RFC assessment from a physician without merit. In formulating plaintiff’s RFC in
the present case, the ALJ—like the ALJ in Green—relied on the office treatment notes of
plaintiff’s medical providers.”).
Therefore, decisions, such as Stephens v. Astrue, No. CA 08-0163-C, 2008 WL 5233582
(S.D. Ala. Dec. 15, 2008), 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. See id. at *3 (“[H]aving rejected West’s assessment, the ALJ necessarily had to point
to a PCE which supported his fifth-step determination that Plaintiff can perform light work
activity.”) (emphasis added). But, because the record in Stephens
contain[ed] no physical RFC assessment beyond that performed by a disability
examiner, which is entitled to no weight whatsoever, there [was] simply no basis
upon which this court [could] find that the ALJ’s light work RFC determination
[was] supported by substantial evidence. [That] record [did] not reveal evidence
that would support an inference that Plaintiff [could] perform the requirements
of light work, and certainly an ALJ’s RFC determination must be supported by

(Continued)
20

Saunders v. Astrue, 2012 WL 997222, *5 (M.D. Ala. Mar. 23, 2012) (“It is unclear how the
ALJ reached the conclusion that Plaintiff ‘can lift and carry up to fifty pounds
occasionally and twenty-five pounds frequently’ and sit, stand and/or walk for six
hours in an eight hour workday, [] when the record does not include an evaluation of
Plaintiff’s ability to perform work activities such as sitting, standing, walking, lifting,
bending, or carrying.”) with 20 C.F.R. §§ 404.1545(b), (c) & (d) and 416.945(b), (c) & (d);
see also Packer v. Astrue, 2013 WL 593497, *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.”),
aff’d, 2013 WL 5788574 (11th Cir. Oct. 29, 2013).
Indeed, the Eleventh Circuit appears to agree that such linkage is necessary for
federal courts to conduct a meaningful review of an ALJ’s decision. For example, in
Hanna, supra, the panel noted that
[t]he ALJ determined that Hanna had the RFC to perform a full range of
work at all exertional levels but that he was limited to ‘occasional hand
and finger movements, overhead reaching, and occasional gross and fine
manipulation.’ In making this determination, the ALJ relied, in part, on
the testimony of the ME. . . .
The ALJ’s RFC assessment, as it was based on the ME’s testimony,
is problematic for many reasons. . . . [G]iven that the ME opined only that
Hanna’s manipulation limitations were task-based without specifying
how often he could perform such tasks, it is unclear how the ALJ

substantial and tangible evidence, not mere speculation regarding what the
evidence of record as a whole equates to in terms of physical abilities.
Id. (citing Cole v. Barnhart, 293 F. Supp.2d 1234, 1242 (D. Kan. 2003) (“The ALJ is responsible for
making a RFC determination, and he must link his findings to substantial evidence in the record
and explain his decision.”)).

21

concluded that Hanna could occasionally engage in all forms of hand and
finger movements, gross manipulation, and fine manipulation. . . .
The ALJ also agreed with the VE’s testimony that, under the RFC
determination, Hanna could return to his past work. But this conclusion
is not clear from the record. The VE answered many hypothetical
questions and initially interpreted the ME’s assessment to mean that
Hanna’s gross manipulation abilities were unlimited and so, with only a
restriction to fine manipulation, he could perform his past relevant work.
In a separate hypothetical, the VE stated that a claimant could not return
to his past work as a packaging supervisor if restricted to occasional
fingering, handling, and gross and fine manipulation. The ALJ also did
not include the ME’s steadiness restriction in the RFC assessment; and the
VE testified that a person restricted to handling that required steadiness
would not be able to return to Hanna’s past work.
The ALJ must state the grounds for his decision with clarity to
enable us to conduct meaningful review. The ALJ has not done so here.
To the extent the ALJ based Hanna’s RFC assessment on hearing
testimony by the ME and VE, the assessment is inconsistent with the
evidence. The ALJ did not explicitly reject any of either the ME’s or VE’s
testimony or otherwise explain these inconsistencies, the resolution of
which was material to whether Hanna could perform his past relevant
work. 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 Hanna’s case.”
395 Fed.Appx. at 635-636 (emphasis added and internal citations and footnotes
omitted); see also 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 v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D. Fla. 2005))
(emphasis added); cf. Keeton v. Department of Health and Human Servs., 21 F.3d 1064, 1066
(11th Cir. 1994) (“The [Commissioner’s] failure to apply the correct law or to provide

22

the reviewing court with sufficient reasoning for determining that the proper legal
analysis has been conducted mandates reversal.”) (citation omitted).
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. 3:08CV839SRW, 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 failed to provide the reviewing court with sufficient reasoning for determining
that the proper legal analysis has been conducted’”) (quoting Hanna, 395 Fed. Appx. 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.”).
In this case, as the undersigned considers the issues raised by plaintiff in this
case, it will become apparent that the Commissioner linked her RFC assessment to
specific evidence in the record bearing upon Busby’s ability to perform the physical,
mental, sensory and other requirements of work. The plaintiff’s primary contention, of
course, is that the ALJ erred in rejecting the opinions of her treating physicians. More
specifically, plaintiff argues that the ALJ erred in rejecting the mental residual
23

functional capacity assessments rendered by her treating psychiatrists, Dr. Shao Hua Ye
and Dr. Eugene Fletcher.
The opinion of a treating physician “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). 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 v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004).
Where the ALJ articulated 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, supra, 396 Fed.Appx. at 655.
In this case, the ALJ accorded “little” weight or “no significant” weight to the
mental residual functional capacity assessments completed by Drs. Ye and Fletcher. (Tr.
32.) This Court will not again set forth the ALJ’s lengthy analysis of the opinion
evidence offered by Drs. Ye and Fletcher. Instead, the Court simply observes that this
portion of the ALJ’s decision (see Tr. 32-33) certainly reflects an articulation of specific
and adequate reasons, supported by substantial evidence, for rejecting the various
opinions offered by plaintiff’s treating psychiatrists. See Gilabert, supra, 396 Fed.Appx. at
655. In particular, this Court agrees with the ALJ that the “marked” and “extreme”
limitations found by Drs. Ye and Fletcher are inconsistent with these psychiatrists’ own
treatment records. (Tr. 32 (“[Dr. Ye’s] assessment of marked deficits in functioning is
inconsistent with treatment notes, including findings that the claimant was mildly
depressed, and that her concentration and attention are unimpaired. The GAF score
assessed in March 2011 further support only moderate symptoms or limitations,
contradicting Dr. Ye’s March 2011 [mental RFC] assessment.”); see also id. at 32-33 (“[As
for Dr. Fletcher’s mental RFC assessment,] [c]orresponding mental health treatment
records regularly noted the claimant to have logical thoughts and unimpaired
24

concentration, from November 2010 through January 2012.”).) The sole “positive”
objective findings noted by plaintiff’s treating psychiatrists from her application date of
October 8, 2010 through 2012 consist of several notations of mild depression or “sad”
mood and affect with mood swings (see Tr. 271, 274, 277, 348, 351, 353, 355, 358 & 375);
however, on several occasions Busby’s mood and affect were noted to be normal or
appropriate (Tr. 345 & 372) and at no time did plaintiff’s treating psychiatrists ever
indicate that Busby had any impairments with respect to her behavior, speech, memory,
concentration or thoughts (Tr. 271-272, 274-275, 277-278, 348-349, 351, 353, 355, 358-359,
372-373, 375-376, 385-386, 424 & 437-438). These relatively benign objective findings
regarding plaintiff’s psychiatric condition simply do not reasonably support the severe
limitations contained in the mental RFC assessments completed by Drs. Ye and Fletcher
(compare id. with Tr. 368-369 (Ye’s RFC questionnaire) & Tr. 281-282 (Fletcher’s RFC
questionnaire)).5 Given the correctness of the ALJ’s determination that the objective
examination findings made by plaintiff’s treating psychiatrists do not support the
limitations on functioning reflected in the two psychiatrists’ mental RFC assessments,
the ALJ did not err in according their opinions “little” or “no significant” weight.
In addition to disagreeing with the plaintiff’s first assignment of error, the
undersigned also cannot agree with plaintiff that the Commissioner failed to link her
RFC assessment to specific evidence in the record bearing upon Busby’s ability to
perform the physical, mental, sensory and other requirements of work. While the

5

The findings by Dr. Ye that Busby has “marked” deficiencies in concentration,
persistence or pace, and by Dr. Fletcher that plaintiff has “extreme” deficiencies in
concentration, persistence or pace, fly in the face of the contents of their treatment notes which
consistently fail to mention any impairment associated with claimant’s concentration. As well,
there is simply no evidence of record establishing that plaintiff has had four or more episodes of
decompensation in work or work-like situations as found by the treating psychiatrists.

25

undersigned agrees with plaintiff that the Commissioner’s RFC assessment was not
supported by the opinion of a treating or examining physician regarding her mental
and physical functional limitations, this does not mean that the Court must necessarily
find a lack of linkage between the Commissioner’s RFC assessment and evidence in the
record bearing upon Busby’s ability to perform the mental and physical requirements of
work which exists in significant numbers in the national economy. Indeed, substantial
evidence of record supports the ALJ’s determination that plaintiff retains the mental
and physical residual functional capacity to perform less than the full range of light
work. (See Tr. 25 (“I find that the claimant has the residual functional capacity to
perform less than the full range of light work as defined in 20 CFR 416.967(b). The
claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. The
claimant has no restriction in the ability to sit, and standing/walking would be
limited to 30 minutes at a time but could be done throughout the workday as long as
there was a change in position every 30 minutes. The claimant can [do] no more than
occasionally operate foot controls or climb ramps or stairs, but never ladders, ropes or
scaffolds. The claimant can never crawl or kneel, and [is] unable to work around
unprotected heights or dangerous equipment. The claimant must avoid tasks that
involve a variety of instructions or tasks, but is able to understand and carry out
simple one and two step instructions and detailed but uninvolved written or oral
instructions involving a few concrete variables in or from standardized situations.
The claimant must have minimal changes in the work setting and routines. The
claimant must only be expected to make judgments on simple work related
decisions. The claimant must avoid production-paced work such as work that is
being pushed at them, but is able to perform goal-oriented work. The claimant must
avoid crowds and can have no more than occasional superficial contact with the
26

public.”).) With respect to plaintiff’s mental condition, the substantial evidence consists
of the very benign objective findings recorded by plaintiff’s treating psychiatrists (Tr.
271-272, 274-275, 277-278, 348-349, 351, 353, 355, 358-359, 372-373, 375-376, 385-386, 424
& 437-438), the January 20, 2011 psychiatric review technique form completed by nonexaminer Dr. Donald E. Hinton (Tr. 247-260), Dr. Hinton’s January 20, 2011 mental RFC
assessment (Tr. 261-264), and the consultative mental examination of plaintiff by Dr.
Annie Formwalt on January 13, 2011 (Tr. 244-245). Cf. Green, supra, 223 Fed.Appx. at
923-924.6 As for plaintiff’s physical condition, the Commissioner provides unquestioned
linkage (Tr. 28 (“The objective evidence provides evidence that while her back and knee
may cause limitations in functioning, they are not debilitating. Restrictions in the
claimant’s exertional capacity have been afforded, with particular restrictions in
standing and walking in order to accommodate the combination of back and knee
orthopedic issues, in combination with obesity. Restrictions in postural function were
similarly provided, also contributing to restriction in working around dangerous
equipment or unprotected heights. Despite her allegations of the daily need for a knee
brace and occasional need to use a cane, she acknowledged at the hearing that these
assistive devices were not prescribed. Furthermore, the evidence does not support the
claimant’s allegations regarding the persistent use of these devices, as they were not
observed by treating sources to have been used with any regularity or the frequency
6

That there was linkage in this case—with respect to plaintiff’s mental condition—
is apparent. (Compare, e.g., Tr. 33 (“Based on the combination of Dr. Fletcher’s assessment and
additional treatment, the claimant was afforded significant restrictions in the complexity of
tasks and instructions, changes in the workplace, the pace of work performed, and exposure to
crowds and the public. Therefore, moderate restrictions were provided in these areas in order to
accommodate the claimant’s condition.”) with id. at 33-34 (“Despite the claimant’s allegations,
her longitudinal treatment history illustrates a mental condition that generally remains mildly
limited, but even accommodating fluctuations and exacerbations, has not been more than
moderately limited during the relevant period.”).)

27

alleged, even in orthopedic treatment in August 2011. The restrictions provided
accommodate the claimant’s physical capacity to function as supported by clinical
findings and observations made of her medical condition, as reflected in treatment and
examination records.” (internal citations omitted)), and her physical RFC assessment is
support by substantial evidence of record (see Tr. 265-268, 313, 320, 337, 343, 399, 413 &
431).7
Because substantial evidence of record supports the Commissioner’s
determination that Busby can perform the physical and mental requirements of less
than the full range of light, and plaintiff makes no argument that this residual
functional capacity would preclude her performance of the jobs identified by the
vocational expert (“VE”) during the administrative hearing,8 the Commissioner’s fifth-

7

More specifically, the evidence of record supporting the “physical” portion of the
Commissioner’s RFC assessment (see Tr. 25) includes the objective examination findings by
consultative examiner, Dr. Elmo Ozment (Tr. 266-268), consistent x-ray and CT scan evidence of
mild degenerative changes of the lumbar spine (Tr. 313, 399 & 413), and evidence of record that
the osteoarthritis in Busby’s left knee (see Tr. 343) was treated first with ant-inflammatories and
muscle relaxers (Tr. 337) and then, a year later, with an injection (Tr. 431). Significantly, no
doctor who treated Busby’s severe physical impairments—that is, her back and left knee
impairments—indicated that those impairments result in more restrictive limitations than
found by the Commissioner. Thus, the undersigned has no hesitancy in finding that the
Commissioner’s physical RFC limitations (see Tr. 25 (limiting the ability to stand and walk to 30
minutes at a time with the need to change positions every 30 minutes, noting an inability to
climb ladders, ropes or scaffolds, noting an inability to crawl, kneel, work at unprotected
heights, or work around dangerous equipment, and noting an ability to operate foot controls
only occasionally)) are restrictive enough to account for plaintiff’s back and left knee
impairments.
8

The vocational expert specifically testified during the administrative hearing that
the jobs he identified would allow the individual to change positions in the manner
contemplated by the hypothetical question. (Tr. 77-78.)
Q
Now I know that the DOT does not identify, it says standing and walking
two hours at a time. In the hypothetical situation we’re dealing with here, it was
30 minutes and then needed to change position a little bit, so that’s a little
different than what is contemplated by the DOT. Is there an explanation that you
understand about these jobs?

(Continued)
28

step determination is due to be affirmed. See, e.g., Owens v. Commissioner of Social
Security, 508 Fed.Appx. 881, 883 (11th Cir. Jan. 28, 2013) (“The final step asks whether
there are significant jobs in the national economy that the claimant can perform, given
h[er] RFC, age, education, and work experience. The Commissioner bears the burden at
step five to show the existence of such jobs . . . [and one] avenue[] by which the ALJ
may determine [that] a claimant has the ability to adjust to other work in the national
economy . . . [is] by the use of a VE.”) (internal citations omitted); Land v. Commissioner
of Social Security, 494 Fed.Appx. 47, 50 (11th Cir. Oct. 26, 2012) (“At step five . . . ‘the
burden shifts to the Commissioner to show the existence of other jobs in the national
economy which, given the claimant’s impairments, the claimant can perform.’ The ALJ
may rely solely on the testimony of a VE to meet this burden.”) (internal citations
omitted).
CONCLUSION
In light of the foregoing, it is ORDERED that the decision of the Commissioner
of Social Security denying plaintiff benefits be affirmed.
DONE and ORDERED this the 25th day of November, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

A
Yes ma’am. I gave you jobs that I have seen performed such that the
individual could meet the hypothetical.
Q

So, you’ve observed these jobs and you know?

A

I have.

(Id.)

29