Monigan v. Colvin
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 10/17/2014. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CEDRIC T. MONIGAN,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security denying his claim for
disability insurance 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. 16 & 18 (“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 counsel at the October
9, 2014 hearing before the Court, it is determined that the Commissioner’s decision
denying benefits should be affirmed.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 16 & 18 (“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
Plaintiff alleges disability due to hypertension, sleep apnea, posttraumatic stress
disorder, major depressive disorder, GERD, degenerative disc disease of the cervical,
thoracic and lumbar spines, and degenerative joint disease of the right knee. The
Administrative Law Judge (ALJ) made the following relevant findings:
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2016.
The claimant has not engaged in SGA since June 23, 2012, the
alleged onset date (20 CFR 404.1571 et seq.).
The claimant has the following severe impairments:
hypertension; sleep apnea; post-traumatic stress disorder (PTSD); major
depressive disorder; gastroesophageal reflux disease (GERD);
degenerative disc disease (DDD) of the cervical, thoracic, and lumbar
spine; and degenerative joint disease (DJD) of the right knee (20 CFR
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
404.1520(d), 404.1525, and 404.1526).
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except no overhead reaching; no
operation of foot controls; no climbing ladders, scaffolds, or ropes; no
crawling, kneeling, or work around unprotected heights and dangerous
equipment; occasional climbing stairs and ramps, balancing, stooping,
and crouching; no work in crowds; and no more than occasional contact
with coworkers and the public, and that contact should be limited to
In making this finding, I have considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the requirements
of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. I have also considered
opinion evidence in accordance with the requirements of 20 CFR 404.1527
and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, I must follow a two-step process
in which it must first be determined whether there is an underlying
medically determinable physical or mental impairment(s)—i.e., an
impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques—that could reasonably be expected to
produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, I must evaluate the intensity, persistence, and limiting
effects of the claimant’s symptoms to determine the extent to which they
limit the claimant’s functioning. For this purpose, whenever statements
about the intensity, persistence, or functionally limiting effects of pain or
other symptoms are not substantiated by objective medical evidence, I
must make a finding on the credibility of the statements based on a
consideration of the entire case record.
The claimant alleges that he is disabled due to neck and lower back pain
with radiculopathy, right knee pain and limited flexion, fatigue and
breathing problems from sleep apnea, and social difficulties from PTSD
and depression. He does no housework and cannot bend over in cramped
places, squat, or run. His hands tingle, and he has lost grip strength. He
can only lift five to eight pounds, sit for 40 to 60 minutes, stand for 15 to 30
minutes, and walk one to one and a half blocks. He is divorced and no
longer sees eye-to-eye with his adult son, lost his wife and child due to
agitation and moodiness, has no social skills, frequently gets in conflicts,
sometimes has difficulty being around groups of people, becomes agitated
and sweaty when outside his “comfort zone,” no longer attends church,
and has lost interest in attending basketball games. He takes Lortab three
to four times a day, uses a knee brace that cuts off his circulation, uses a
back brace that suffocates him, and lies down in a positioning device for
his DDD. He goes to group and individual counseling and takes two
psychotropic medications. The counseling and psychotropic medications
seem to help, but the medications make him “kind of squirrely.”
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely credible for the reasons explained in this
The medical evidence of record documents the claimant’s treatment since
the alleged onset date for DJD of the right knee and DDD of the cervical,
thoracic, and lumbar spine. He has complained of neck pain and
tenderness, left-sided cervical radiculopathy, lower back pain, lumbar
radiculopathy, right knee pain, and a sense that the right knee might “give
way”. However, he has also denied gait disturbance and weakness and
numbness in the extremities.
The claimant’s painful neck range of motion, somewhat decreased
strength in the upper extremities, decreased deep tendon reflexes in the
upper extremities, decreased sensation in the left upper extremity, absent
deep tendon reflexes in the lower extremities, and decreased sensation in
the left lower extremity have been noted on physical examination.
However, his mostly normal neck range of motion; normal strength and
muscle bulk and tone; normal range of motion and muscle strength and
stability in the extremities; normal right knee range of motion; and ability
to toe, heel, and tandem walk have also been noted.
On May 4, 2011, x-rays showed moderate tri[-]compartmental
degenerative changes of the claimant’s right knee. On May 15, 2012, x-rays
of the right knee showed advanced degenerative changes with joint space
narrowing and osteoarthritic spurring most pronounced at the medial
joint compartment with near bone-to-bone contact. X-rays of the lumbar
spine showed degenerative changes with disc space narrowing at L5-S1.
On July 12, 2012, a magnetic resonance imaging scan (MRI) of the cervical
spine showed mild DDD at C3-4 resulting in mild central spinal canal
stenosis, mild DDD at C4-5 resulting in mild central spinal canal stenosis
an mild neural foraminal narrowing, eccentric disc bulging at C5-6
resulting in mild central spinal canal stenosis and severe narrowing of the
left neural foramen, and mild DDD at C6-7 resulting in mild bilateral
neural foraminal narrowing. A MRI of the thoracic spine showed a small
right paracentral focal disc herniation at T5-6 resulting in mild central
spinal canal stenosis and T7-8 mild broad-based disc bulging resulting in
mild central spinal canal stenosis. On July 24, 2012, the results of an
electromyogram and nerve conduction study of the upper extremities
Prior to the alleged onset date, the claimant underwent a lumbar
decompression and microdiscectomy procedure and multiple surgeries on
his right knee. Since the alleged onset, his musculoskeletal impairments
have been treated with physical therapy, a cervical traction unit, a spinal
orthotic device, and oral muscle relaxant and pain medications.
The claimant has been treated for sleep apnea since the alleged onset date.
He has complained of tiredness and fatigue due to poor sleep from sleep
hypoxia. He uses a continuous positive airway pressure machine.
The claimant has been treated for hypertension since the alleged onset
date. His elevated blood pressure has been noted on examination.
However, his normal blood pressure has also been noted. He has been
prescribed antihypertensive and calcium channel blocker medications.
The claimant has a history of GERD. On January 31, 2011, a barium
swallow esophagram showed a small sliding-type hiatal hernia with a
small amount of gastroesophageal reflux. Since the alleged onset date, his
GERD has been noted to be stable. He takes antacid medication.
The claimant has been treated for PTSD and major depressive disorder
since the alleged onset date. He has complained of depressed mood,
irritability, poor sleep, and intrusive memories of combat in Iraq. His
anxious mood and affect has been noted on examination. However, his
adequate dress; good eye contact; fluent speech; appropriate mood, affect,
and behavior; alertness; orientation; goal-directed thought process;
apparent comprehension; coherent answers; and intact memory, attention,
concentration, and executive functions have also been noted. He has been
treated with counseling and psychotropic medications.
Residual functional capacity ordinarily is an assessment of the claimant’s
ability to perform sustained work activities in an ordinary work setting on
a regular and continuing basis, i.e., eight hours a day, for five days a
week, or an equivalent work schedule. Light work involves lifting up to 20
pounds at a time, lifting or carrying objects weighing up to 10 pounds
frequently, and may require a good deal of walking or standing or sitting
most of the time with some pushing and pulling of arm or leg controls.
In consideration of the claimant’s impairments, he is unable to perform
medium or heavier work. However, the record as a whole shows that he is
able to perform light work except no overhead reaching; no operation of
foot controls; no climbing ladders, scaffolds, or ropes; no crawling,
kneeling, or working around unprotected heights and dangerous
equipment; occasional climbing stairs and ramps, balancing, stooping, and
crouching; no work in crowds; and no more than occasional contact with
coworkers and the public, and that contact should be limited to superficial
contact. The exertional, postural, manipulative, and environmental
limitations accommodate his physical impairments. The lifting and
carrying limitations of light work prevent the aggravation of his DJD of
the right knee, which has required several surgeries, and his hypertension,
which is poorly controlled. The mental limitations accommodate his PTSD
and major depressive disorder.
I cannot find the allegations to be fully credible. Except for severe
narrowing of the left neural foramen at C5-6, the MRI studies have shown
only mild degenerative changes to the claimant’s spine. His mostly
normal neck range of motion; normal strength and muscle bulk and tone;
normal range of motion and muscle strength and stability in the
extremities; normal right knee range of motion; and ability to toe, heel,
and tandem walk have been noted on physical examination. He has access
to medical care, and he has not required aggressive medical management.
Although he alleges limited daily activities due to pain, he reportedly has
no problems bathing, using the toilet, and feeding himself; prepare his
own meals such as sandwiches and microwave meals daily; watches
television; goes outside once or twice a week; can go out alone; drives; and
shops in stores. He testified that he makes his own bed, does his own
laundry, watches television, sometimes drives, and fishes every once in a
while. His activities of daily living are consistent with the range of light
work in the residual functional capacity [assessment].
As for the claimant’s mental impairments, his adequate dress; good eye
contact; fluent speech; appropriate mood, affect, and behavior; alertness;
orientation; goal-directed thought process; apparent comprehension;
coherent answers; and intact memory, attention, concentration, and
executive functions have been noted on examination. As described above,
he engages in some activities of daily living. He reportedly lives with his
brother, spends time talking with others once or twice a week, sometimes
talks with neighbors, and regularly goes to church. He testified that [he]
went to a retirement party for a friend and attended a college bowl game
last winter. He reportedly needs no special reminders to take care of
personal needs and grooming, needs no help or reminders taking
medicine, is able to handle money, and follows spoken instructions well.
He testified that he can read and write okay and takes care of his own
finances and schedule.
As for opinion evidence, on February 27, 2013, Sherri F. Jennings, PA, a
physician assistant with the Department of Veterans Affairs (VA),
examined the claimant and apparently opined that his DJD of the right
knee caused only mild functional limitation and did not impact his ability
to work. Although Physician Assistant Jennings is not considered to be an
“acceptable medical source” for medical opinion purposes, I have
considered her opinion under 20 CFR 404.1527(d) and SSR 06-03p. I give
her opinion some weight. She examined the claimant, and she apparently
reviewed his May 2012 x-ray results showing advanced degenerative
changes. Although her opinion is consistent with her physical
examination results, the longitudinal evidence of record shows that the
claimant’s DJD of the right knee does cause more than minimal functional
I give some weight to the State agency psychiatric consultant’s mental
residual functional capacity assessment and the State agency medical
consultant’s physical residual functional capacity assessment. The State
agency consultants are familiar with Social Security law and regulations,
and they generally reviewed the same evidence that I have reviewed.
On March 19, 2013, Prince C. Uzoije, M.D., a treating internist at the
Franklin Primary Health Center, completed a form indicating that the
claimant experiences disabling pain and is unable to sustain work activity
on a regular and continuing basis. Although Dr. Uzoije is a treating
source, I give his opinion little weight. He had only limited contact with
the claimant during the five months that he supposedly treated him with
limited diagnostic testing being performed and reviewed.
The claimant has been rated at 90 percent service-connected disability. I
give little weight to the claimant’s service-connected disability rating. The
standard for VA disability is not the same as for disability under the Social
Security Act. Moreover, the residual functional capacity in this decision of
a range of light work is consistent with the longitudinal evidence of
record, including the claimant’s medical records from the VA.
The claimant is unable to perform any past relevant work (20
The claimant was born on July 1,1971 and was 40 years old, which
is defined as a younger individual age 18-49, on the alleged disability
onset date (20 CFR 404.1563).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
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 transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
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
404.1569 and 404.1569(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 202.21. 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
residual functional capacity. The vocational expert testified that given all
of these factors the individual would be able to perform the requirements
of representative light and unskilled occupations such as garment bundler
(Dictionary of Occupational Titles (DOT) Code 920.687-190), a job with
approximately 2,100 positions existing statewide and 185,000 nationally;
production assembler (DOT Code 706.687-010), a job with approximately
7,300 positions existing statewide and 488,000 nationally; and poultry
worker (DOT Code 525.687-074), a job with approximately 1,900 positions
existing statewide and 119,000 nationally.
Pursuant to SSR 00-4p, I have determined that the vocational expert’s
testimony is consistent with the information contained in the DOT.
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 rule.
The claimant has not been under a disability, as defined in the
Social Security Act, from June 23, 2012, through the date of this decision
(20 CFR 404.1520(g)).
(Tr. 24, 26-30, 30 & 31 (some 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.
In all Social Security cases, the claimant bears the burden of proving that he is
unable to perform his 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. An ALJ, in turn,
uses a five-step sequential evaluation to determine whether the claimant 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 RFC to perform h[is] 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 Social Security, 457 Fed.Appx. 868, 870 (11th Cir. Feb. 9, 2012)2
(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).
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
If a plaintiff proves that he cannot do his past relevant work, as here, it then
becomes the Commissioner’s burden—at the fifth step—to prove that the plaintiff is
capable—given his 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), cert. denied, 529 U.S. 1089, 120 S.Ct. 1723, 146
L.Ed.2d 644 (2000); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Finally, but
importantly, although “a claimant bears the burden of demonstrating an inability to
return to his past relevant work, the [Commissioner of Social Security] has an obligation
to develop a full and fair record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that he can perform those light,
unskilled 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).3 Courts are precluded, however,
from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.
Appx. 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
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).
substantial evidence.’” Id. (quoting Crawford v. Commissioner of Social Security, 363 F.3d
1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, Monigan asserts two reasons why the Commissioner’s
decision to deny him benefits is in error (i.e., not supported by substantial evidence): (1)
the ALJ failed to give proper weight to a Disability Rating Decision of the Department
of Veterans Affairs and did not explain her reason for not doing so; and (2) the ALJ gave
an insufficient reason for according the opinion of treating physician Dr. Prince Uzoije
little weight. The Court will address each issue in turn.
Disability Rating Decision of the Department of Veterans
Monigan initially contends that the ALJ erred in failing to explain her reasons for not
affording proper (that is, great) weight to the Disability Rating Decision of the
Department of Veterans Affairs. There can be no question but that on June 25, 2012, the
Department of Veterans Affairs verified for Monigan that its official records reflected he
was “rated at 90% for a service-connected disability.” (Tr. 241.) The rated disabilities
consisted of the following:
CHRONIC ADJUSTMENT DISORDER (30%)
SLEEP APNEA SYNDROME (30%)
NEOPLASM, BENIGN, GENITOURINARY (20%)
DEGENERATIVE ARTHRITIS OF THE SPINE (20%)
LIMITED FLEXION OF KNEE (10%)
PARALYSIS OF SCIATIC NERVE (10%)
LIMITED FLEXION OF KNEE (10%)
DEGENERATIVE ARTHRITIS OF THE SPINE (10%)
LIMITED FLEXION OF FOREARM (10%)
HIATAL HERNIA (10%)
LIMITED MOTION OF ANKLE (10%)
LIMITED MOTION OF ANKLE (10%)
(See, e.g., Tr. 263.)
The Eleventh Circuit has recognized that although a disability rating decision by
the Veterans Administration is not “binding” on the ALJ, such a rating is entitled to
“’great weight[.]’” Pearson v. Astrue, 271 Fed.Appx. 979, 981 (11th Cir. Apr. 1, 2008),
citing Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984); see also Kemp v. Astrue, 308
Fed.Appx. 423, 426 (11th Cir. Jan. 26, 2009) (“’A VA rating is certainly not binding on
the Secretary, but it is evidence that should be considered and is entitled to great
weight.’”); see Rodems ex rel. Rodems v. Colvin, 2014 WL 795966, *4 (N.D. Ala. Feb. 27,
2014) (“An ALJ is obligated to consider a disability rating assigned by another agency,
not just the medical records behind the rating, but there is no obligation to agree with
the rating.”). Moreover, as noted in Kemp, supra, “[t]he ALJ must ‘state specifically the
weight accorded to each item of evidence and why he reached that decision.’” 308
Fed.Appx. at 426, quoting Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
In this case, the ALJ specifically identified the weight she was according the VA
disability rating—little—and explained that she reached that conclusion not only
because “[t]he standard for VA disability is not the same as for disability under the
Social Security Act[,]”4 but also because her RFC assessment of light work was
“consistent with the longitudinal evidence of record, including the  medical records
from the VA[.]” (Tr. 30.) Therefore, contrary to plaintiff’s argument, the ALJ specifically
explained her reasons for not affording the VA disability rating “great weight.” In
addition, the ALJ in this case continuously referenced the VA records (see Tr. 27-30)—
upon which the VA disability rating was based—in the course of making her own
determination that Monigan was not disabled, see Adams v. Commissioner of Social
This is an absolutely correct statement of law. Compare Kemp, supra, 308
Fed.Appx. at 426 (“The SSA regulations specify that a decision by any non-governmental or
governmental agency about whether an individual is disabled is based on its own rules and
does not constitute a SSA decision about whether an individual is disabled.” (citation omitted))
with Pearson, supra, 271 Fed.Appx. at 981 (“The record establishes that the administrative law
judge considered the rating in his decision and correctly explained that a claimant had to satisfy
a more stringent standard to be found disabled under the Social Security Act.” (citations
Security, 542 Fed.Appx. 854, 857 (11th Cir. Oct. 24, 2013). And because nothing in the
VA records (see, e.g., Tr. 242-879 & 902-943)—including the disability rating5—or the
remaining credible evidence of record (see, e.g., Tr. 103-107) is contrary to the ALJ’s
determination that claimant retains the RFC to perform a limited range of light work,
the Court cannot find that the ALJ erred in failing to give a more detailed explanation
for according the VA disability rating little weight.
The ALJ Did Not Have the Opinions of Plaintiff’s Treating Physician,
Dr. Prince Uzoije, Which Should Have Been Given Substantial Weight. In his brief,
plaintiff argued that his case was due to be remanded based upon new and material
evidence, that is, the March 19, 2013 form completed by Dr. Prince Uzoije, a treating
physician. (See Doc. 13, at 3.) Because the defendant made clear in her brief in
opposition that the ALJ considered the form completed by Dr. Uzoije in her decision
(compare Doc. 14, at 10 with Tr. 30), the plaintiff modified her attack on the ALJ’s
decision in court to contend that the ALJ failed to set forth an explicit and adequate
reason for rejecting the opinions Uzoije expressed in the form he completed on March
The law in this Circuit is clear that an ALJ “’must specify what weight is given to
a treating physician’s opinion and any reason for giving it no weight, and failure to do
so is reversible error.’” Nyberg v. Commissioner of Social Security, 179 Fed.Appx. 589, 590591 (11th Cir. May 2, 2006) (unpublished), quoting MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (other citations omitted). In other words, “the ALJ must give the
opinion of the treating physician ‘substantial or considerable weight unless “good
This rating makes no reference to claimant’s ability to perform work-related
activity or the impact plaintiff’s various recognized impairments would have on his abilities to
perform work-related activities. (Compare Tr. 241 with Tr. 263.)
cause” is shown to the contrary.’” Williams v. Astrue, 2014 WL 185258, *6 (N.D. Ala. Jan.
15, 2014), quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (other citation
omitted); see Nyberg, supra, 179 Fed.Appx. at 591 (citing to same language from Crawford
v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)).
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 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.Appx. 652, 655 (11th Cir. Sept. 21, 2010) (per
curiam). Most relevant to this case, an ALJ’s articulation of reasons for rejecting a
treating source’s RFC and pain assessments must be supported by substantial evidence.
See id. (“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 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).
In this case, the ALJ specifically determined that “little” weight was due to be
afforded the findings by Dr. Uzoije reflected on a March 19, 2013 form that physical
activity greatly increases Monigan’s symptoms and causes distraction from (or total
abandonment) of tasks and that due to ongoing radiculopathy and pain Monigan
cannot “engage in any form of gainful employment on a repetitive, competitive and
productive basis over an eight hour day, forty hours a work, without missing more than
2 days of work per month or experiencing interruptions to his work routine due to
symptoms of his . . . medical problems[.]” (Compare Tr. 30 with Tr. 239 & 884.) The ALJ
explained that Dr. Uzoije’s findings were entitled to only little weight in light of his
“limited contact with the claimant during the five months that he supposedly treated
[claimant] with limited diagnostic testing being performed and reviewed.” (Tr. 30.) The
undersigned construes the ALJ’s comments as an implicit finding that Dr. Uzoije’s
opinions were conclusory and inconsistent with the doctor’s own medical records.
A review of the transcript reflects that Dr. Uzoije’s office saw plaintiff five times
from October 22, 2012 through March 19, 2013, with Dr. Uzoije being the provider of
medical services on only two of those visits. (See Tr. 885-899.) On October 22, 2012,
Tamekia Cunningham, a registered nurse, saw Monigan, who presented to Franklin
Primary Health Center with no current “problems” but in search of a new primary care
physician. (Tr. 897-899.) On November 30, 2012, Dr. Uzoije examined Monigan and
specifically noted on musculoskeletal examination that there was “[n]ormal range of
motion, muscle strength, and stability in all extremities with no pain on inspection.” (Tr.
896 (emphasis supplied); see also id. at 884-885.) On January 8, 2013, Nurse Cunningham
treated Monigan for a rash (Tr. 891-893), and, on February 7, 2013, Nurse Cunningham
again saw plaintiff for his rash and hypertension (Tr. 888-890). And, finally, Dr.
Uzoije’s examination of plaintiff on March 19, 2013 noted only left knee tenderness. (Tr.
887.) Because Dr. Uzoije noted only left knee “tenderness” on one of the two occasions
he treated plaintiff but, otherwise, found no evidence or pain or radiculopathy, the
undersigned finds that the ALJ was absolutely correct in giving little weight to Dr.
Uzoije’s March 19, 2013 findings due to his “limited contact with the claimant during
the five months that he supposedly treated [claimant] with limited diagnostic testing
being performed and reviewed.” (Tr. 30.) Dr. Uzoije’s objective clinical findings are
inconsistent with the findings set forth on the form he completed on March 19, 2013;
therefore, the Court finds the ALJ’s articulated reason for giving little weight to Dr.
Uzoije’s March 19, 2013 findings supported by substantial evidence.
In light of the foregoing, the Commissioner’s fifth-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 numbers of 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)).
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be affirmed.
DONE and ORDERED this the 17th day of October, 2014.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?