Mayle v. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security denying plaintiff benefits be AFFIRMED. Signed by Magistrate Judge William E. Cassady on 11/25/2015. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEAZERA A. MAYLE,

:

Plaintiff,

:

vs.

:

CA 15-00086-C

CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying her
claims for disability insurance benefits and supplemental security income. 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. 17 & 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, and the
Commissioner’s brief,1 it is determined that the Commissioner’s decision denying
benefits should be affirmed.2

1

The parties were allowed to waive oral argument in this case. (Doc. 19;
compare id. with Doc. 16.)
2
Any appeal taken from this memorandum opinion and order and
judgment shall be made to the Eleventh Circuit Court of Appeals. (See Docs. 17 & 18
(“An appeal from a judgment entered by a magistrate judge shall be taken directly to
(Continued)

Plaintiff alleges disability due to fibromyalgia, asthma, carpal tunnel syndrome,
migraines, pyelonephritis, depression with some anxiety, and personality disorder. The
Administrative Law Judge (ALJ) made the following relevant findings:
1.
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2016.
2.
The claimant has not engaged in substantial gainful activity since
December 1, 2011, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
3.
The claimant has the following severe impairments:
fibromyalgia,
asthma,
carpal
tunnel
syndrome,
migraines,
pyelonephritis, depression with some anxiety, and personality disorder.
(20 CFR 404.1520(c) and 416.920(c)).
.

.

.

4.
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, 404.1526, 416.920(d), 416.925 and 416.926).
.

.

.

5.
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 404.1567(b) and 416.967(b).
The claimant can lift and carry no more than 20 pounds occasionally and
10 pounds frequently. The claimant can stand/walk for no more than 1530 minutes at a time for up to 6 hours during an 8-hour workday, with
changes in position at the intervals provided. The claimant can sit
through the workday with regular breaks. The claimant can frequently
handle, finger, feel, push/pull, and use hand tools. The claimant can
occasionally climb stairs and ramps. The claimant can never climb
ladders, ropes, or scaffolds. The claimant can never work around
unprotected heights or dangerous equipment, temperature extremes,
humidity and wetness, or be exposed to concentrated environmental
pollutants such as dust, chemicals, or fumes. The claimant must have
minimal changes in work settings and routine, and make judgment only
on simple work related decisions. The claimant must avoid tasks
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.”))

2

involving a variety of instructions or tasks, but [is] able to understand
and carry out simple one or two step instructions, and [is] able to
understand or carry out detailed but uninvolved written or oral
instructions. The claimant cannot work in crowds, cannot have any
more than occasional and superficial contact with the public. The
claimant cannot have more than occasional interaction with coworkers
and no activities requiring teamwork.
.

.

.

She continues to seek treatment for her physical impairments. She sought
treatment at the emergency department for headaches in May 2012, but
departed in stable condition shortly after treatment was administered for
her migraine headache. She had normal mood and affect, and [was]
determined to be in no distress on examination. She returned days later
for ongoing complaints of headaches and nausea secondary to her
headache. She reported that emergency care had not improved her
condition, which is contradicted by emergency department records that
show her condition was stabilized before she was discharged. She was
admitted for further observation of her reported headaches. Magnetic
resonance imaging of the brain showed no significant abnormalities.
Imaging of the chest was also performed and showed her lungs were clear
and [her] heart [] within normal limits. The lumbar puncture performed
was also negative. Her condition was noted as improved as of her
discharge and [she was] provided medications to address her condition.
She continues to seek treatment for her physical condition intermittently,
but clinical findings of significant physical dysfunction have remained
limited. Her pulmonary deficits require treatment[,] as sought in
September 2012, but radiological imaging showed no abnormalities. With
treatment, she was examined and showed good air movement in the lung
fields and appeared comfortable. Radiological imaging of the chest was
normal. Physical examination with treatment revealed normal effort and
breath sounds, with no respiratory distress. She sought treatment for
migraine headache and pain of the arms, legs, back, and neck in October
2012. She reported intractable headache and severe issues with physical
function. However, physical examination showed normal range of motion
of the neck and musculoskeletal system. There were some sensory deficits
in the right hand, but she demonstrated normal muscle tone and her
coordination was normal. Motor examination showed full strength in both
upper and lower extremities, and normal gait. The claimant’s treatment
records reveal persistent medical care sought, but also reveal limited
clinical findings and diagnostic evidence inconsistent with the severity of
physical dysfunction alleged. These ongoing medical findings continue to
support restrictions to the light exertional range with further postural
restrictions and environmental restrictions to accommodate her pain and
respiratory issues, but fail to support the debilitating condition alleged.
She sought emergency treatment in October 2012 with complaints of
abdominal pain. Radiological imaging was consistent with her prior
3

history of kidney issues, but her reported symptoms did not appear to be
related to exacerbations in this condition, and she was discharged in stable
condition. The computed tomography did not provide sufficient evidence
of acute abnormality to determine the underlying cause of her complaints.
. . . She sought treatment for generalized body aches in November 2012 as
well as ongoing issues with her mental impairments causing disinterest in
social activities. She continued to receive medication treatment, and [was]
instructed to continue follow-up with mental health treatment at
AltaPointe. However, corresponding AltaPointe records revealed limited
compliance with the prescribed treatment including tolerance skills as
prescribed. Despite her reported body aches, the objective findings
remain[ed] limited. There was no pulmonary deficits noted and her
oxygen saturation rate was 98%. There were no limitations in range of
motion or abnormal exertional function noted on examination. She
reported issues with concentration and confusion in December 2012 while
driving, but the claimant has provided conflicting statements regarding
driving. She reported in her function report that she does not drive
because of her condition . . . and travels by riding in the car. However, she
testified at the hearing that she has a driver’s license and still drives.
Despite the confusion reported, she was alert and without distress on
examination. She has continued to receive medical care as needed, and
reports persistent concerns that warrant restrictions in functioning.
However, the evidence fails to support the severity of functional deficits
alleged. The claimant continues to seek and receive treatment for her
reported pain and pulmonary dysfunction, but medical sources have not
determined her combination of impairments has warranted additional
methods of treatment other then the intermittent injections provided.
Correspondence was provided in February 2013 assessing the claimant’s
physical and mental condition. While this source identified herself as a
doctor, this document indicates her doctorate degree is in nursing
practice, and is not an acceptable medical or psychological source. She
reports having treated the claimant over the past eight months. She
reports the claimant has experienced deterioration in mental status and
continues to receive treatment for both her mental issues as well as
physical problems causing pain that further exacerbates her mental
condition. This source assesses the claimant is unable to perform work
duties in any capacity and requires ongoing treatment at AltaPointe. The
record does support the claimant’s condition warrants ongoing mental
health treatment. However, this opinion evidence from a treating nonmedical source assesses the claimant’s incapacity to perform work
activity, an issue reserved to the Commissioner. Furthermore, this source
identifies that she has provided treatment at Hands of Hope Healthcare
Center. The[] corresponding records of treatment reflect some physical
issues, but that the claimant receives mental health treatment elsewhere
with acceptable mental health professionals at AltaPointe. These records
do not support significant familiarity with the claimant’s mental capacity
to function, and do not reflect objective medical findings that would
support the debilitating condition assessed. This non-medical treating
4

source opinion remains inconsistent with the record, which does not
support the conclusion that she is unable to perform work duties in any
capacity, and this is further contradicted by the clinical findings made by
treating [] medical and psychological sources in the claimant’s other
records of treatment. This opinion evidence also fails to provide any
assessment from a functional perspective as to what the claimant can or
cannot do. Therefore, this opinion evidence was afforded little weight as
inconsistent with the full record.
An assessment of the claimant’s condition was performed by C. Scott
Markle M.D., in March 2013. The claimant reportedly had been treated
since March 2011 for carpal tunnel syndrome, migraine headaches, and
fibromyalgia. She reportedly was limited by pain, and physical activity
would greatly increase her symptoms and distract from tasks. She was
assessed as unable to perform work activity on a full time basis, and
reportedly has severe pain limiting her employment. Dr. Markle is
suppo[sed] to constitute a treating medical source. However, his
assessment of the claimant’s functional limitations and incapacity to
perform fulltime work activity remains inconsistent with his own
treatment notes and other records indicating her response to treatment.
Dr. Markle‘s own treatment notes found that she demonstrated normal
muscle tone and coordination was normal. She also demonstrated full
strength on motor examination for both upper and lower extremities. She
demonstrated normal gait. Dr. Markle’s findings in the months prior to
this assessment are inconsistent with the assessment provided. Similar
findings were reported in the scheduled visit days after this assessment
was performed. The claimant continued to demonstrate minimal sensory
deficit[s] in the right hand, but demonstrated normal muscle tone and
normal coordination. Motor examination showed full strength in upper
and lower extremities with normal gait, as found in previous treatment
visits. Further records of treatment from Mobile Infirmary also fail to
support the degree of dysfunction assessed by Dr. Markle in the March
2013 form. The record fails to substantiate the nature and severity of
functional deficits assessed, and this treating medical source opinion
evidence is afforded little weight as inconsistent with the full record.
.

.

.

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, activities
of daily living, and work history.
5

6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
.

.

.

7.
The claimant was born on September 6, 1968 and was 43 years
old, which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9.
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).
10.
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, 404.1569(a), 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 202.21. 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 occupations such as follows:
DOT Title
Folder
Hand
Packager
Inserting
Machine
Operator

DOT Code Numbers in Economy SVP
369.687-018 420,910 US; 16,320 AL 2
559.687-074 236,450 US; 4,375 AL
2

Strength
Light
Light

Skill Level
Unskilled
Unskilled

208.685-018 57,505 US; 485 AL

Light

Unskilled

6

2

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 identified that the number of
jobs available in the economy as a hand packager and inserting machine
operator were reduced by fifty percent to accommodate situations where
they could not change positions. These adjustments from the Dictionary of
Occupational Titles were based upon the vocational expert’s experience
over thirty years as well as familiarity with the positions identified. The
testimony was accepted despite slight variance from the Dictionary of
Occupational Titles, for the reasons identified.
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.
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from December 1, 2011, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. 13, 14, 16-17, 23-25, 26 & 26-27 (internal citations omitted).) The Appeals Council
affirmed the ALJ’s decision (Tr. 1-4) and thus, the hearing decision became the final
decision of the Commissioner of Social Security.
DISCUSSION
In all Social Security cases, an ALJ utilizes 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 her past relevant work; and (5) if not, whether, in light of
the claimant’s RFC, age, education and work experience, there are other
jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)3 (per
curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v.
3

“Unpublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.” 11th Cir.R. 36-2.
7

Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the
burden, at the fourth step, 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. Although “a
claimant bears the burden of demonstrating an inability to return to h[er] 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) (citations omitted). If a
plaintiff proves that she cannot do her past relevant work, as here, it then becomes the
Commissioner’s burden—at the fifth step—to prove that the plaintiff is capable—given
her age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy. Phillips, supra, 357 F.3d at 1237;
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).
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,
unskilled jobs identified by the vocational expert at the administrative hearing, 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

8

the Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).4
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 substantial evidence.’” Id. (quoting Crawford v.
Commissioner of Social Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, Mayle asserts two reason why the Commissioner’s
decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1)
the ALJ erred in failing to evaluate the opinion of her treating medical source, Cynthia
Washington, DNP, under SSR 06-03p; and (2) the ALJ reversibly erred in failing to give
controlling weight to the opinion of the plaintiff’s treating neurologist, Dr. Scott Markle.
A.

Opinion of Cynthia Washington, DNP, an “Other Medical Source”.

There can be no question but that Cynthia Washington, a nurse practitioner (see Doc. 11
(plaintiff’s brief identifies Washington as a nurse practitioner))5 at the Hands of Hope
Health Care Center, penned an undated6 “To whom it may concern” opinion letter
relative to her treatment of plaintiff: “I have had the pleasure of caring for Mrs. Leazera
Mayle over the past 8 months. Mrs. Mayle has experienced deterioration in mental
4

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).
5

Washington identifies herself as a doctor. (See Tr. 753.) She appears to
have a doctorate in the Nurse Practitioner area. (See id.)
6

Although undated, the ALJ’s opinion makes clear that this
correspondence was received by the Social Security Administration in February of 2013.
(Tr. 24.)
9

status, which has resulted in lack of interest in performing daily self-care skills, interest
in social activities, as well as thoughts of not wanting to live. Mrs. Mayle is currently
being treated for major depression and personality disorder at Altapointe Healthcare
Center. In addition, Mrs. Mayle has fibromyalgia, which results in pain that aggravates
her mental condition. Her physical and mental state has resulted in multiple
hospitalizations over the past 2 years. Due to her mental status, she is not able to
perform work duties in any capacity and requires ongoing care by the psychiatrist at
Altapointe. If further information is needed, please feel free to contact me at the above
address and/or office number.” (Tr. 753.)
Nurse practitioners are excluded from the list of “acceptable medical sources”
whose opinions are to be considered in determining the existence of an impairment. See,
e.g., 20 C.F.R. § 404.1513(a) (2015). However, medical sources who are not “acceptable
medical sources” are considered “other sources” and their opinions and evidence may
be used “to show the severity” of an impairment and “how it affects [the] ability to
work[.]” See 20 C.F.R. § 404.1513(d) (nurse practitioners included in subsection (1)).
Social Security Ruling 06-03p clearly provides that the factors listed in 20 C.F.R.
§§ 404.1527(d) and 416.927(d) can be applied to opinion evidence from medical sources
who are not “acceptable medical sources,” including the following factors: (1) how long
the source has known the claimant and how frequently the source has seen the
claimant; (2) how consistent the source’s opinion is with other evidence; (3) the degree
to which the source presents relevant evidence to support the opinion; (4) how well the
source explains the opinion; (5) whether the source has a specialty or area of expertise
related to the individual’s impairments; and (6) any other factors that tend to support or
refute the source’s opinion. Id. The ruling goes on to explain that not every factor listed
will apply in every case. Id. And, finally, the ruling explains that the “adjudicator
10

generally should explain the weight given to opinions from [] ‘other sources,’ or
otherwise ensure that the discussion of the evidence in the . . . decision allows a . . .
subsequent reviewer to follow the adjudicator’s reasoning . . . .” Id.
With these principles in mind, the undersigned considers plaintiff’s argument
that the ALJ erred in failing to evaluate the opinion plaintiff’s treating non-accepted
medical source, Cynthia Washington, DNP, in accordance with SSR 06-03p. In
particular, plaintiff avers that Washington’s opinion, which is set forth above, is one she
is qualified to give and is “supported by records showing that the Plaintiff has required
in-patient treatment for suicidal ideation.” (Doc. 11, at 3, citing Tr. 596-611 & 641-673.)
The plaintiff is correct in noting that a non-accepted medical source like Washington
may well occupy a position which would “qualif[y her] to give an opinion [showing]
the severity” of plaintiff’s mental impairment (Doc. 11, at 3); however, her suggestion
that the ALJ did not give Washington’s opinion “weight” (see id.), or otherwise properly
evaluate her opinion in accordance with SSR 06-03p is simply incorrect. The Court finds
that the ALJ properly afforded Washington’s opinion “little weight[,]” and set forth
several reasons for giving Washington’s opinion little weight (Tr. 24).
The record does support the claimant’s condition warrants ongoing
mental health treatment. However, this opinion evidence from a treating
non-medical source assesses the claimant’s incapacity to perform work
activity, an issue reserved to the Commissioner. Furthermore, this source
identifies that she has provided treatment at Hands of Hope Healthcare
Center. The[] corresponding records of treatment reflect some physical
issues, but that the claimant receives mental health treatment elsewhere
with acceptable mental health professionals at AltaPointe. These records
do not support significant familiarity with the claimant’s mental capacity
to function, and do not reflect objective medical findings that would
support the debilitating condition assessed. This non-medical treating
source opinion remains inconsistent with the record, which does not
support the conclusion that she is unable to perform work duties in any
capacity, and this is further contradicted by the clinical findings made by
treating [] medical and psychological sources in the claimant’s other
records of treatment. This opinion evidence also fails to provide any
assessment from a functional perspective as to what the claimant can or
11

cannot do. Therefore, this opinion evidence was afforded little weight as
inconsistent with the full record.
(Id. (internal citations omitted).) As reflected, the ALJ did accord “weight” to
Washington’s opinion, albeit “little,” and certainly set forth several reasons for
according Washington’s opinion little weight, in accordance with SSR 06-03p. See
Montgomery v. Astrue, 2013 WL 3152278, *8 (N.D. Ala. Jun. 18, 2013) (“Here, the ALJ
does not address every factor [listed in SSR 06-03p] as pointed out by Plaintiff; however,
the ALJ was not required to explicitly address every factor as long as the ALJ provides
‘”good cause” for rejecting a [nurse practitioner’s] medical opinions.’”). In particular,
the ALJ noted that Washington’s opinion was “inconsistent with the record,” (Tr. 24),
which is an identified factor in SSR 06-03p.7 Moreover, the ALJ correctly noted that
Washington’s

treatment

records

focused

primarily

upon

plaintiff’s

physical

impairments and clearly reflect—even where mental symptomatology was reported
and objective mental findings noted—that plaintiff was under the care of a psychiatrist
at AltaPointe (Tr. 24), an implicit determination that Washington’s opinion was due
little weight because of a lack of expertise relative to plaintiff’s mental impairment (see
id. (“These records do not support significant familiarity with the claimant’s mental
capacity to function[.]”), see SSR 06-03p (factors). Finally, the ALJ correctly noted that
the objective findings made by Washington (see Tr. 880 (“Flat affect with sad mood with
disorganized thought process.”) & 881 “Flat affect with tearing and emotional
7

Importantly, the ALJ also observed that Washington’s “opinion evidence .
. . assesses the claimant’s incapacity to perform work activity, an issue reserved to the
Commissioner.” (Tr. 24.) The ALJ’s criticism of Washington’s opinion in this regard,
while perhaps not a specific “factor” listed in SSR 06-03p, is nevertheless appropriate.
Miles v. Social Security Administration, 469 Fed.Appx. 743, 745 (11th Cir. Mar. 15, 2012)
(“[A] medical source’s statement that a claimant is ‘unable to work’ or ‘disabled’ does
not bind the ALJ, who alone makes the ultimate determination as to disability under the
regulations.”).
12

instability; appropriate response to verbal command but with . . .”); but cf. Tr. 679
(“Positive [for] mental illness F/B psychiatrist, currently compliant with medical
management plan; no H/O suicidal ideations or plans.”) & 680 (same)), were not
consistent with “the debilitating condition assessed[,]” (Tr. 24), that is, Washington’s
objective findings were inconsistent with her opinion that plaintiff cannot “perform
work duties in any capacity” due to her mental status (Tr. 753). Thus, the ALJ did not
err in affording Washington’s conclusory letter opinion “little” weight. Cf. Kennedy v.
Colvin, 2015 WL 1003845, *8 (N.D. Fla. Mar. 5, 2015) (“The ALJ gave ‘little weight’ to the
opinions of Ms. Breland because he found them ‘inconsistent with the other evidence in
the record.’ [] The ALJ also found that the ‘treatment notes from Ms. Breland’s clinic,
the Washington County Health Department, fail[ed] to reveal the type of significant
clinical and laboratory abnormalities one would expect if the claimant in fact were
disabled.’ [] The undersigned agrees that Ms. Breland’s opinions were entitled to little
weight. Not only are they inconsistent with and unsupported by other evidence in the
record, but like Dr. Harmon-Sheffield’s opinions, they also were conclusory and
expressed on pre-printed check-off forms.”).
B.

Opinion of Treating Physician Dr. Scott Markle. 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, 590-591 (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 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
13

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 opinion regarding the extent of a plaintiff’s pain and inability to
engage in gainful employment 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 assessment of Dr. Markle because that assessment was inconsistent with
the objective evidence of record, including Markle’s own treatment records. (Tr. 24-25.)
An assessment of the claimant’s condition was performed by C. Scott
Markle M.D., in March 2013. The claimant reportedly had been treated
since March 2011 for carpal tunnel syndrome, migraine headaches, and
fibromyalgia. She reportedly was limited by pain, and physical activity
would greatly increase her symptoms and distract from tasks. She was
assessed as unable to perform work activity on a full time basis, and
reportedly has severe pain limiting her employment. Dr. Markle is
suppo[sed] to constitute a treating medical source. However, his
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assessment of the claimant’s functional limitations and incapacity to
perform fulltime work activity remains inconsistent with his own
treatment notes and other records indicating her response to treatment.
Dr. Markle‘s own treatment notes found that she demonstrated normal
muscle tone and coordination was normal. She also demonstrated full
strength on motor examination for both upper and lower extremities. She
demonstrated normal gait. Dr. Markle’s findings in the months prior to
this assessment are inconsistent with the assessment provided. Similar
findings were reported in the scheduled visit days after this assessment
was performed. The claimant continued to demonstrate minimal sensory
deficit[s] in the right hand, but demonstrated normal muscle tone and
normal coordination. Motor examination showed full strength in upper
and lower extremities with normal gait, as found in previous treatment
visits. Further records of treatment from Mobile Infirmary also fail to
support the degree of dysfunction assessed by Dr. Markle in the March
2013 form. The record fails to substantiate the nature and severity of
functional deficits assessed, and this treating medical source opinion
evidence is afforded little weight as inconsistent with the full record.
(Id.)
A review of the transcript reflects that plaintiff has been followed by Dr. Scott
Markle for bilateral carpal tunnel syndrome, migraine headaches, and fibromyalgia
since March of 2011. (See Tr. 455.) However, the Court need agree with the ALJ that
Markle’s own examination findings do not support his assessment that physical activity
will greatly increase plaintiff’s pain so as to cause distraction from task or total
abandonment of task and that her pain limits her ability to engage in any and all forms
of gainful employment on a repetitive, competitive and productive basis. (See Tr. 445
(“On exam, . . . [c]ranial nerves II-XII are intact. Motor exam shows good strength in
both upper and lower extremities. Sensory exam shows bilateral positive Tinel’s and a
positive Phalen’s. Sensory is otherwise intact. Reflexes are 2+ in the bilateral biceps,
triceps, patellar, and ankles. Toes are downgoing. Romberg is negative. Gait is
normal.”); Tr. 455 (“There is no facial asymmetry. Facial sensation is intact. The palate is
upgoing. The tongue is midline. Motor exam shows good strength in both upper and
lower extremities both proximally and distally. Sensory exam is grossly intact. Reflexes
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are 2+ in the bilateral biceps, triceps, patellar, and ankles. Toes are downgoing.
Romberg is negative. Gait is normal. . . . I do not see any fasciculations or atrophy of the
muscles.”); Tr. 723-724 (“Neck: Normal range of motion. . . . Musculoskeletal: Normal
range of motion. Neurological: She is alert and oriented to person, place, and time. She
has normal reflexes. A sensory deficit (Right hand in medial distribution) is present.
No cranial nerve deficit. She exhibits normal muscle tone. Coordination normal. CNIIXII intact. Motor exam shows 5/5 strength in both upper and lower extremities.
Romberg negative. Normal gait[.] No ataxia on finger nose finger or heel to shin.
Babinski normal bilateral[.]” (emphasis in original)); Tr. 918 (same). In addition, the
relevant additional evidence of record does not support Dr. Markle’s assessment
findings. (See, e.g., Tr. 464 (normal range of neck and musculoskeletal normal range of
motion); 489 (musculoskeletal stable); 500 (“Musculoskeletal: Negative. Negative for
myalgias and arthralgias. . . . Neurological: . . . Negative for dizziness, tremors, seizures,
syncope, facial asymmetry, speech difficulty, weakness, light-headedness and
numbness.”); 525 (“EXTREMITIES: No clubbing, cyanosis or edema. +2 pulses upper
and lower extremities.”); 529 (“Neurologic—5/5 strength bilateral upper and lower
extremities.”); 545 (“Musculoskeletal: Negative for back pain and joint swelling.”); 584
(description of back pain as mild, 2/10); 586 (“Musculoskeletal: Normal range of
motion. She exhibits no edema and no tenderness. . . . Neurological: . . . She displays
normal reflexes. No cranial nerve deficit. She exhibits normal muscle tone. Coordination
normal.”); 590 (same); 593 (“Extremities: Intact distal pulses, No edema, No tenderness,
No cyanosis, No clubbing. Musculoskeletal: Good range of motion in all major joints.
No tenderness to palpation or major deformities noted. Neurologic: Alert & oriented x
3, Normal motor function, Normal sensory function, No focal deficits noted.”); 625
(“Musculoskeletal: Negative. Negative for myalgias, back pain and arthralgias.”); 627
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(“Musculoskeletal: Normal range of motion. She exhibits no edema and no
tenderness.”); 660 (“Musculoskeletal: . . . Negative for back pain and arthralgias.”); 661
(“Musculoskeletal: Normal range of motion. She exhibits no edema and no
tenderness.”); 687 (“Musculoskeletal: Negative for back pain, joint swelling, arthralgias
and gait problem. . . . Neurological: Negative for dizziness, weakness and headaches.”);
688 (“Musculoskeletal: Normal range of motion. She exhibits no edema and no
tenderness. . . . Neurological: . . . She has normal reflexes. No cranial nerve deficit. She
exhibits normal muscle tone. Coordination normal.”); 698 (“Musculoskeletal: Negative
for joint swelling, arthralgias and gait problem.”); 699 (“Musculoskeletal: Normal range
of motion. She exhibits no edema and no tenderness. . . . Neurological: . . . She has
normal

reflexes.

No

cranial

nerve

deficit.

Coordination

normal.”);

708

(“Musculoskeletal: Negative for myalgias, back pain and arthralgias.”); 709
(“Musculoskeletal: Normal range of motion. She exhibits no edema and no
tenderness.”); 741 (“Musculoskeletal: She exhibits no edema. . . . Neurological: No
cranial nerve deficit. Coordination normal.”); 909 (“Musculoskeletal: Negative for back
pain and joint swelling.”); 910 (“Musculoskeletal: She exhibits no edema. Neurological:
No cranial nerve deficit. Coordination normal.”); 914-915 (“EXTREMITIES: No
clubbing, cyanosis or edema. . . . NEUROLOGIC: Intact.”).) Accordingly, the ALJ did
not err in according “little” weight to Markle’s assessment as it is inconsistent with the
objective medical evidence, including Markle’s own examination findings.
In light of the foregoing and because substantial evidence of record supports the
Commissioner’s determination that Mayle can perform the physical and mental
requirements of a reduced range of light work as identified by the ALJ (see Tr. 16-17;
compare id. with Tr. 445-575, 584-595, 622-673, 682-749, 758-851 & 893-918), and plaintiff
makes no argument that this residual functional capacity would preclude her
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performance of the light jobs identified by the VE during the administrative hearing
(compare Doc. 11 with Tr. 249-252), 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)).
CONCLUSION
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 2015.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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