Fox v. Colvin
MEMORANDUM OPINION AND ORDER that the Commissioner's final decision issued 3/16/15 denying plaintiff's applications for DIB and SSI benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 4/20/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
LEA H. FOX,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 15-00190-N
MEMORANDUM OPINION AND ORDER
Social Security Claimant/Plaintiff Lea H. Fox has brought this action under
42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the
Defendant Commissioner of Social Security (“the Commissioner”) denying her
applications for disability insurance benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. § 401, et seq., and supplemental security income (“SSI”)
under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.
consent of the parties (see Doc. 17), the Court has designated the undersigned
Magistrate Judge to conduct all proceedings and order the entry of judgment in this
civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure
73, and S.D. Ala. GenLR 73. (See Doc. 18).
Upon consideration of the parties’ briefs (Docs. 10, 14) and the administrative
record (Doc. 9) (hereinafter cited as “(R. [page number(s) in lower-right corner of
transcript])”), 1 the Court finds that the Commissioner’s decision is due to be
With the Court’s consent, the parties jointly waived the opportunity for oral argument.
(See Docs. 19, 20).
On April 12, 2012, Fox filed applications for DIB and SSI with the Social
Security Administration (“SSA”),2 both alleging disability beginning February 2,
After her applications were initially denied, Fox requested a
hearing, which was held before an Administrative Law Judge (“ALJ”) for the SSA
on September 24, 2013.
On November 20, 2013, the ALJ issued an
unfavorable decision on Fox’s applications, finding her “not disabled” under the
Social Security Act. (See R. 17 – 42).
Fox requested review of the ALJ’s decision by the Appeals Council for the
SSA’s Office of Disability Adjudication and Review. The Commissioner’s decision on
Fox’s applications became final when the Appeals Council denied Fox’s request for
review on March 16, 2015. (R. 1 – 4). On April 8, 2015, Fox filed this action under
§§ 405(g) and 1383(c)(3) for judicial review of the Commissioner’s final decision.
“The Social Security Act's general disability insurance benefits program (‘DIB’)
provides income to individuals who are forced into involuntary, premature
retirement, provided they are both insured and disabled, regardless of indigence.
See 42 U.S.C. 423(a). The Social Security Act's Supplemental Security Income (‘SSI’)
is a separate and distinct program. SSI is a general public assistance measure
providing an additional resource to the aged, blind, and disabled to assure that
their income does not fall below the poverty line. Eligibility for SSI is based upon
proof of indigence and disability. See 42 U.S.C. 1382(a), 1382c(a)(3)(A)-(C).”
Sanders v. Astrue, Civil Action No. 11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala.
Sept. 28, 2012).
“For SSI claims, a claimant becomes eligible in the first month where she is both
disabled and has an SSI application on file. 20 C.F.R. § 416.202–03 (2005). For
DIB claims, a claimant is eligible for benefits where she demonstrates disability on
or before the last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005).”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
See 42 U.S.C. § 405(g) (“Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review of such decision by a
civil action commenced within sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner of Social Security may
allow.”); 42 U.S.C. § 1383(c)(3) (“The final determination of the Commissioner of
Social Security after a hearing [for SSI benefits] shall be subject to judicial review
as provided in section 405(g) of this title to the same extent as the Commissioner's
final determinations under section 405 of this title.”); Ingram v. Comm'r of Soc. Sec.
Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law of this Circuit is that
a court may review, under sentence four of section 405(g), a denial of review by the
Standard of Review
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is
‘ “supported by substantial evidence and based on
proper legal standards. Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d
1436, 1439 (11th Cir. 1997))). However, the Court “ ‘may not decide the facts anew,
reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ”
Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8
(11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983))). “ ‘Even if the evidence preponderates against the
[Commissioner]’s factual findings, we must affirm if the decision reached is
supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). “In determining
whether substantial evidence exists, [a court] must…tak[e] into account evidence
favorable as well as unfavorable to the [Commissioner’s] decision.”
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Moreover, “[t]here is no
presumption…that the Commissioner followed the appropriate legal standards in
deciding a claim for benefits or that the legal conclusions reached were valid.
Instead, [the court] conduct[s] ‘an exacting examination’ of these factors.” Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (citing Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990)) (internal citation omitted). In sum, courts
“review the Commissioner’s factual findings with deference and the Commissioner’s
legal conclusions with close scrutiny.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th
Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per
curiam) (“In Social Security appeals, we review de novo the legal principles upon
which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986). However, we review the resulting decision only to determine
whether it is supported by substantial evidence. Crawford v. Comm'r of Soc. Sec.,
363 F.3d 1155, 1158–59 (11th Cir. 2004).”). “ ‘The [Commissioner]'s failure to apply
the correct law or to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted mandates reversal.’ ”
Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46
(11th Cir. 1991)).
Eligibility for DIB and SSI requires that the claimant be disabled. 42
U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if she is
unable “to engage in any substantial gainful activity by reason of a
medically determinable physical or mental impairment ... which has
lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 609 (11th Cir. Feb. 11,
2015) (per curiam) (unpublished).4
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
In this Circuit, “[u]npublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014). See also
Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).5
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has satisfied this initial burden, the
examiner must consider four factors: (1) objective medical facts or clinical findings;
(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the
claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983) (per curiam)).
“These factors must be considered both singly and in
combination. Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves
that he or she has a qualifying disability and cannot do his or her past relevant
work, it then becomes the Commissioner’s burden, at Step Five, to prove that the
claimant is capable—given his or her age, education, and work history—of engaging
in another kind of substantial gainful employment that exists in the national
economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler,
764 F.2d 834, 836 (11th Cir. 1985).
Finally, but importantly, although the
“claimant bears the burden of demonstrating the inability to return to [his or] her
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual
steps of this five-step sequential evaluation.
past relevant work, the Commissioner of Social Security has an obligation to
develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.
In determining whether a
claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
When, as here, “no new evidence is presented to the Appeals Council and it
denies review, then the administrative law judge’s decision is necessarily reviewed
as the final decision of the Commissioner…” Ingram, 496 F.3d at 1262.
Claims on Judicial Review
1. The ALJ “reversibly erred in failing to assign controlling weight to the
opinion of [Fox]’s treating physician, Dr. Krishna Pasala, M.D.”
2. The ALJ reversibly erred “in acting as both judge and physician by
arbitrarily substituting her own medical opinion, without any supporting
medical opinions or substantial evidence, for the opinion of a medical
professional…by finding [Fox] can perform light work.”
3. The ALJ reversibly erred “in violation of 20 C.F.R. § 404.1529(b) in failing to
fulfill her duty to develop the record by ordering a consultative orthopedic
(Doc. 10 at 1 – 2).
At Step One, the ALJ determined that Fox had “not engaged in substantial
gainful activity since February 2, 2012, the alleged disability onset date…” (R. 23).
At Step Two, the ALJ determined that Fox had the following severe impairments:
multi-level degenerative disc disease of the cervical spine, borderline personality
disorder, major depressive disorder, and opioid dependence. (R. 23). At Step Three,
the ALJ found that Fox did not have an impairment or combination of impairments
that meets or equals the severity of one of the specified impairments in the Listing
of Impairments. (R. 30).
At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“RFC”); and (2) the claimant's ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the
regulations define RFC as that which an individual is still able to do
despite the limitations caused by his or her impairments. 20 C.F.R. §
404.1545(a). Moreover, the ALJ will “assess and make a finding about
[the claimant's] residual functional capacity based on all the relevant
medical and other evidence” in the case. 20 C.F.R. § 404.1520(e).
Furthermore, the RFC determination is used both to determine
whether the claimant: (1) can return to her past relevant work under
the fourth step; and (2) can adjust to other work under the fifth
step…20 C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past
relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past relevant
work, the ALJ must determine the claimant's RFC using all relevant
medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That
is, the ALJ must determine if the claimant is limited to a particular
work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the
claimant’s RFC and determines that the claimant cannot return to her
prior relevant work, the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ determined that Fox had the RFC “to perform light work as defined
in 20 CFR 404.1567(b) and 20 CFR 416.967(b)[ 6 ] except [she] cannot perform
overhead reaching bilaterally, she can perform only occasional pushing and pulling
with the upper extremities, she is precluded from working with ladders, ropes, or
scaffolds, at unprotected heights, and around dangerous equipment, she cannot
operate a commercial vehicle, she is able to attend and concentrate for two hours at
one time before needing a break, she is able to adapt to occasional changes in work
settings and routines, she is able to understand, remember, and carry out short,
simple work instructions and able to make judgments regarding simple workrelated decisions but detailed work instructions are precluded, she cannot interact
with the public, co-workers, and supervisors more than occasionally, and her time
off tasks could be accommodated by normal breaks.” (R. 32). Based on this RFC,
the ALJ determined that Fox was “unable to perform any of her past relevant
work…” (R. 40). At Step Five, the ALJ then determined that there exist significant
numbers of jobs in the national economy that Fox can perform given her RFC, age,
“To determine the physical exertion requirements of different types of employment in the
national economy, the Commissioner classifies jobs as sedentary, light, medium, heavy, and
very heavy. These terms are all defined in the regulations … Each classification …has its
own set of criteria.” Phillips, 357 F.3d at 1239 n.4. “Light work involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of the time
with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, [a claimant] must have the ability to do
substantially all of these activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
education, and work experience – specifically, mail clerk/sorter, house sitter, and
assembler of small products. (R. 41 – 42). Thus, the ALJ found that Fox was not
disabled under the Social Security Act. (R. 42).
determination may include medical opinions. See 20 C.F.R. §§ 404.1527(a)(2) &
416.927(a)(2). “ ‘Medical opinions are statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the nature and
severity of [the claimant's] impairment(s), including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and
[the claimant's] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79
(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).
“There are three tiers of
medical opinion sources: (1) treating physicians; (2) nontreating, examining
physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of
Soc. Sec., 585 F. App'x 758, 762 (11th Cir. Sept. 26, 2014) (per curiam)
(unpublished) (citing 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2)).
assessing medical opinions, the ALJ must consider a number of factors in
determining how much weight to give to each medical opinion, including (1)
whether the physician has examined the claimant; (2) the length, nature, and
extent of a treating physician's relationship with the claimant; (3) the medical
evidence and explanation supporting the physician’s opinion; (4) how consistent the
physician’s opinion is with the record as a whole; and (5) the physician’s
These factors apply to both examining and non-examining
physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523 (11th Cir.
Sept. 30, 2014) (per curiam) (unpublished) (internal citations and quotation marks
omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)).
The ALJ “may reject the opinion of any physician when the evidence supports
a contrary conclusion.” Bloodsworth, 703 F.2d at 1240. Accord, e.g., Anderson v.
Comm'r of Soc. Sec., 427 F. App'x 761, 763 (11th Cir. 2011) (per curiam)
the ALJ must state with particularity the weight given to different
medical opinions and the reasons therefor. Sharfarz v. Bowen, 825
F.2d 278, 279 (11th Cir. 1987) (per curiam). “In the absence of such a
statement, it is impossible for a reviewing court to determine whether
the ultimate decision on the merits of the claim is rational and
supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d 731,
735 (11th Cir. 1981). Therefore, when the ALJ fails to “state with at
least some measure of clarity the grounds for his decision,” we will
decline to affirm “simply because some rationale might have supported
the ALJ's conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516 (11th
Cir.1984) (per curiam). In such a situation, “to say that [the ALJ’s]
decision is supported by substantial evidence approaches an abdication
of the court's duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational.” Cowart, 662 F.2d at 735
(quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979))
(internal quotation marks omitted).
Winschel, 631 F.3d at 1179.
“A ‘treating source’ (i.e., a treating physician) is a claimant's ‘own physician,
psychologist, or other acceptable medical source who provides, or has provided,[
the claimant] with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].’ ” Nyberg v. Comm'r of Soc.
Sec., 179 F. App'x 589, 591 (11th Cir. May 2, 2006) (per curiam) (unpublished)
(quoting 20 C.F.R. § 404.1502). “Absent ‘good cause,’ an ALJ is to give the medical
opinions of treating physicians ‘substantial or considerable weight.’ ” Winschel, 631
F.3d at 1179 (quoting Lewis, 125 F.3d at 1440). That is so because treating sources
are likely in a better position “to provide a detailed, longitudinal picture of [a
claimant’s] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings alone
or from reports of individual examinations, such as consultative examinations or
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
exists ‘when the: (1) treating physician’s opinion was not bolstered by the evidence;
(2) evidence supported a contrary finding; or (3) treating physician's opinion was
conclusory or inconsistent with the doctor’s own medical records.’ With good cause,
an ALJ may disregard a treating physician's opinion, but he ‘must clearly articulate
[the] reasons’ for doing so.” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d
at 1240-41) (internal citation omitted). See also, e.g., Bloodsworth, 703 F.2d at 1240
(“[T]he opinion of a treating physician may be rejected when it is so brief and
conclusory that it lacks persuasive weight or where it is unsubstantiated by any
clinical or laboratory findings. Further, the Secretary may reject the opinion of any
physician when the evidence supports a contrary conclusion.” (citation omitted)).
Fox argues that the ALJ reversibly erred in assigning less than substantial
weight to the opinion of treating physician Dr. Pasala, presented in a Clinical
Assessment of Pain Form dated September 12, 2013 (R. 1025 – 1026 [SSA Ex. 33F]).
The ALJ summarized Dr. Pasala’s opinion as follows:
On September 12, 2013, the claimant’s primary care physician, Dr.
Krishna Pasala, completed a Clinical Assessment of Pain Form on the
claimant’s behalf. In that form, Dr. Pasala stated that she had been
treating the claimant for six months for cervical disc herniation. Dr.
Pasala opined that the claimant’s pain would distract the claimant
from adequately performing daily activities or work, and that physical
activity, such as walking, standing, bending, stooping, moving of
extremities, etc., would greatly increase the claimant’s level of pain
and cause distraction from task or total abandonment of task. Dr.
Pasala further opined that the claimant’s pain and/or drug side effects
could be expected to be severe and to limit effectiveness due to
distraction, inattention, or drowsiness. Finally, Dr. Pasala opined that
the claimant was unable to engage in any form of gainful employment
on a repetitive, competitive and productive basis over an eight hour
work day, forty hours a week, without missing more than 2 days of
work per month or experiencing frequent interruptions to her work
routine due to symptoms of her disease or medical problems. (Exhibit
(R. 27). Fulfilling the requirement that she “state with particularity the weight
given to [Dr. Pasala’s] medical opinions and the reasons therefor[,]” Winschel, 631
F.3d at 1179, the ALJ “assigned those opinions little evidentiary weight,”
The undersigned notes that the claimant’s pain was a factor in limiting
the claimant to the performance of simple, unskilled work. However,
Dr. Pasala’s opinions of the severity of the claimant’s pain are not
supported by her own clinical examination findings or by the other
objective medical evidence of record. Dr. Pasala’s treatment notes all
show that the claimant had normal range of motion on physical
examination that was limited only by her complaints of pain. This is a
subjective factor not an objective finding. On April 17, 2013, Dr.
Pasala noted that the claimant had neck pain, but that she was
“negative for back pain, joint pain, joint swelling and muscle
weakness.” Dr. Pasala’s treatment note for that visit shows no pain
anywhere on physical examination of the claimant. On June 12, 2013,
the claimant complained of back pain, joint pain, and neck pain, but
her physical examination show [sic] no clinical findings to corroborate
said complaints of pain. It seems reasonable to expect that Dr.
Pasala’s treatment notes and particularly her recorded clinical
examination findings would reflect severe abnormalities given the
claimant’s allegation of pain so severe and debilitating that she is
unable to work. (Exhibit 30F [R. 987 – 1022]). Dr. Pasala’s treatment
records contain essentially no significant abnormal objective medical
findings to support an allegation of pain of such severity as to be
distracting to the adequate performance of daily activities or work or
that would cause the claimant to miss more than two days of work per
Dr. Pasala’s opinions in the pain form are also unsupported by the
other objective medical evidence of record. For example, MRI and CT
scans of the claimant’s cervical spine have shown that the claimant’s
cervical degenerative disc disease is no more than mild to moderate in
nature and the imaging studies have failed to document the existence
of any significant neural foraminal stenosis or nerve root compression.
(Exhibits 8F at pages 100 [R. 553] and 139 [R. 592]; and 31F [R. 1023]).
Likewise, physical examinations by the claimant’s other treating
physicians have failed to document clinical findings to indicate severe
pain or functional limitation. Dr. Dempsey’s physical examinations of
the claimant from September 2012 through June 2013 showed no more
than mildly diminished range of motion in the claimant’s cervical
spine. All other aspects of his physical examinations of the claimant
were consistently normal within that time period. Moreover, on
November 19, 2012, Dr. Dempsey stated that the claimant’s pain was
not in line with what he was seeing on the imaging studies. (Exhibits
22F [R. 903 – 908] and 27F [R. 915 – 926]).
Thus, the ALJ expressly determined that Dr. Pasala’s opinions were (1)
inconsistent with her own medical records and (2) not bolstered by the evidence,
pointing to specific portions of the record in explaining each of these
determinations. Fox agrees that these were the ALJ’s reasons for rejecting the
opinion. (See Doc. 10 at 3 (“The Administrative Law Judge stated that the opinion
of Dr. Pasala was not supported by his own clinical examination findings or by the
other objective medical evidence of record.” (citing R. 35)). Though either one of
these reasons, standing alone, would provide sufficient “good cause” to assign less
than substantial or considerable weight to the opinion, see Winschel, 631 F.3d at
1179, Fox addresses only the latter in her brief, claiming that the opinion “is
supported by the objective medical evidence of record.”7 (Doc. 10 at 3).
assuming that this is true, Fox’s failure to contest the ALJ’s other reason for
discounting the opinion is in itself fatal to this claim of error.8
Regardless, none of “the objective medical evidence of record” Fox cites in
support of Claim 1 gives the Court reason to question the ALJ’s articulated good
cause for rejecting Dr. Pasala’s opinion. At most, the evidence Fox cites shows some
history of pain. However, the ALJ was rejecting Dr. Pasala’s opinions as to “the
severity of [Fox]’s pain,” not the existence of that pain. The ALJ correctly observed
Fox’s failure to address the inconsistency of Dr. Pasala’s opinion with her own treatment
notes is confirmed by the fact that, despite summarizing the “objective medical evidence of
record” for almost three pages, she never once cites to any of Dr. Pasala’s treatment notes,
located at SSA Exhibit 30F (R. 987 – 1022). (See Doc. 10 at 4 – 6).
In an appeal to the Eleventh Circuit Court of Appeals, “[t]o obtain reversal of a district
court judgment that is based on multiple, independent grounds, an appellant must convince
[the court] that every stated ground for the judgment against him is incorrect. When an
appellant fails to challenge properly on appeal one of the grounds on which the district
court based its judgment, he is deemed to have abandoned any challenge of that ground,
and it follows that the judgment is due to be affirmed.” Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 680 (11th Cir. 2014). This Court does not hesitate to apply such a rule
when reviewing a final decision of the Commissioner under § 405(g), often characterized as
a “Social Security appeal.” While this Court has a duty not “to rubber stamp the
administrative decisions that come before” it, it is not the Court’s duty to “conduct a de novo
proceeding…” Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam). Given
that this Court must “give substantial deference to the Commissioner’s decision[,]” e.g.,
Dyer v. Barnhart, 395 F.3d 1206, 1212 (11th Cir. 2005) (per curiam), it is the claimant’s
burden to set forth specific reasons why such deference should not be given. See also
Greenlaw v. United States, 554 U.S. 237, 243-44 (2008) (“In our adversary system, in both
civil and criminal cases, in the first instance and on appeal, we follow the principle of party
presentation. That is, we rely on the parties to frame the issues for decision and assign to
courts the role of neutral arbiter of matters the parties present … [A]s a general rule, our
adversary system is designed around the premise that the parties know what is best for
them, and are responsible for advancing the facts and arguments entitling them to relief.”
that Dr. Pasala’s treatment notes “contain essentially no significant abnormal
objective medical findings,” instead showing “normal range of motion on physical
examination that was limited only by [Fox’s] complaints of pain.”9 See Freeman v.
Barnhart, 220 F. App'x 957, 960 (11th Cir. Mar. 23, 2007) (per curiam)
(unpublished) (“Two factors that may weigh in favor of discounting a treating
physician’s opinion are when the opinion is inconsistent with the physician's own
treatment notes and when the opinion appears to be based primarily on the
claimant's subjective complaints of pain.” (citing Crawford, 363 F.3d at 1159));
Social Security Ruling 96-2P, 1996 WL 374188 (July 2, 1996) (“The adjudicator
must find that the treating source’s medical opinion is ‘well-supported’ by ‘medically
acceptable’ clinical and laboratory diagnostic techniques. The adjudicator cannot
decide a case in reliance on a medical opinion without some reasonable support for
the opinion … Even if well-supported by medically acceptable clinical and
laboratory diagnostic techniques, the treating source’s medical opinion also must be
‘not inconsistent’ with the other ‘substantial evidence’ in the individual's case
record.” (emphasis added)).
Moreover, as the ALJ correctly noted, Dr. Pasala’s
opinions were inconsistent with the treatment notes and opinions of Dr. Dempsey,
another of Fox’s treating physicians. As the Commissioner’s brief correctly notes
(see Doc. 14 at 9), between August 2012 and June 2013, Dr. Dempsey consistently
noted Fox as having a full range of motion in her cervical spine, interspersed with
When asked to provide “any clinical or laboratory findings to support” her opinions, Dr.
Pasala cited only an “MRI of cervical spine” from “2/2012.” (R. 1025). While this MRI did
show some cervical abnormality (“C5-C6, broad based disc bulge and C6-7, right central
disk extrusion”), it was performed at a hospital emergency room by another physician on
February 23, 2012, over a year before Dr. Pasala first began treating Fox. (R. 545, 553).
occasional diagnoses of “mildly diminished” (75%) range of motion.
also opined that Fox’s “pain was not in line with what we are seeing on imaging
studies.” (R. 923). In sum, substantial evidence supports the ALJ’s decision to
assign little weight to Dr. Pasala’s opinions.
For these reasons, the Court OVERRULES Fox’s assertions of reversible
error in Claim 1.
In Claim 2, Fox asserts that, because the ALJ did not assign controlling
weight to Dr. Pasala’s opinion, and assigned only some weight to the opinions of a
state agency medical consultant, the ALJ’s RFC “does not fully reflect the opinion
and limitations of [those physicians], and thus, is not based on substantial
evidence.” (Doc. 10 at 9). Fox also asserts the ALJ erred because she “merely chose
the limitations that she thought to be relevant without establishing a link between
the medical evidence of record and the adopted” RFC. (Id.). The Court construes
these arguments as asserting (1) the ALJ is required to adopt at least one medical
opinion in formulating an RFC, and (2) the ALJ did not sufficiently show her work
in formulating Fox’s RFC.
The Court rejects both assertions. While the Social Security regulations
require ALJs to consider all medical opinions in the record when making a
disability determination, see 20 C.F.R. §§ 404.1527(b) & 416.927(b), “[n]othing in
the regulations requires the ALJ to accept at least one medical opinion before
rendering a decision—indeed, an ALJ may make a disability determination without
any medical opinion in the record.” Hale v. Colvin, Civil Action No. 14-00222-CG-N,
2015 WL 3397939, at *11 (S.D. Ala. Apr. 24, 2015) (Nelson, M.J.), report and
recommendation adopted, 2015 WL 3397628 (S.D. Ala. May 26, 2015) (Granade, J.).
See also Packer v. Astrue, Civil Action No. 11-0084-CG-N, 2013 WL 593497, at *3
(S.D. Ala. Feb. 14, 2013) (Granade, J.) (“[T]he ALJ is not precluded from making a
proper RFC determination in the absence of an opinion from an acceptable medical
source.” (quotation omitted)), aff'd, Packer v. Comm'r, Soc. Sec. Admin., 542 F.
App’x 890 (11th Cir. Oct. 29, 2013) (per curiam) (unpublished); Chapo v. Astrue,
682 F.3d 1285, 1288 (10th Cir. 2012) (“[T]here is no requirement in the regulations
for a direct correspondence between an RFC finding and a specific medical opinion
on the functional capacity in question. The ALJ, not a physician, is charged with
determining a claimant's RFC from the medical record.” (quotation omitted)); 20
C.F.R. §§ 404.1527(a)(2) & 416.927(a)(2) (“Evidence that you submit or that we
obtain may contain medical opinions.” (emphasis added)); 20 C.F.R. §§ 404.1546 &
416.946 (“If your case is at the administrative law judge hearing level … , the
administrative law judge … is responsible for assessing your residual functional
capacity.”). The ALJ properly assigned little weight to Dr. Pasala’s opinion, see
supra, and Fox has asserted no error in the weight assigned to the state agency
consultant’s opinion. 10 Accordingly, the ALJ was not required to “fully reflect”
either of those opinions in the RFC.
Moreover, the opinion of a non-examining physician “is entitled to little weight and taken
alone does not constitute substantial evidence to support an administrative decision.” E.g.,
Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990) (per curiam).
“A clear articulation of both fact and law is essential to our ability to conduct
a review that is both limited and meaningful.” Owens v. Heckler, 748 F.2d 1511,
1514-15 (11th Cir. 1984) (per curiam). See also Freeman v. Barnhart, 220 F. App'x
957, 959-60 (11th Cir. Mar. 23, 2007) (per curiam) (unpublished) (“The ALJ has a
duty to make clear the weight accorded to each item of evidence and the reasons for
the decision so that a reviewing court will be able to determine whether the
ultimate decision is based on substantial evidence.” (citing Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir. 1981))). Nevertheless, “there is no rigid requirement
that the ALJ specifically refer to every piece of evidence in his decision, so long as
the ALJ’s decision … is not a broad rejection which is not enough to enable the
district court … to conclude that the ALJ considered her medical condition as a
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)
(quotation omitted). In formulating the RFC at Step Four, the ALJ thoroughly
discussed and weighed the evidence of record and drew conclusions from that
Apart from the weight the ALJ assigned the two above-mentioned
medical opinions, Fox points to no evidence the ALJ allegedly incorrectly or
insufficiently assessed. Rather, she appears to assert only that the ALJ failed to
adequately show her work in applying Social Security Ruling 96-8p. However, both
this Circuit and others have repeatedly rejected similar contentions that an ALJ’s
failure to expressly show his or her work under SSR 96-8p is automatic grounds for
See Freeman, 220 F. App'x at 959-60 (“Freeman contends that the ALJ
failed to identify her functional limitations and work-related abilities on a function-
by-function basis … While the ALJ could have been more specific and explicit in his
findings, he did consider all of the evidence and found that it did not support the
level of disability Freeman claimed. Only after he determined that she failed to
carry her burden of showing that she had become disabled from performing any of
her work-related activities did he state that she could perform light exertional
activity. Therefore, the ALJ complied with SSR 96–8p by considering Freeman's
functional limitations and restrictions and, only after he found none, proceeding to
express her residual functional limitations in terms of exertional levels.
Furthermore, the ALJ’s analysis of the evidence and statement that Freeman could
perform light work indicated how much work-related activity she could perform
because ‘light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8–hour workday.’ SSR 83–10.”); Castel v. Comm'r of
Soc. Sec., 355 F. App'x 260, 263 (11th Cir. Nov. 30, 2009) (“Castel argues that the
ALJ reached an RFC determination without going through a function-by-function
analysis. Specifically, Castel claims that the ALJ did not perform the function-byfunction analysis to determine Castel's ability to handle strength demands. This
argument is unfounded. The ALJ made a determination of Castel's RFC at step
four of the function-by-function analysis. The ALJ considered two disability
examiners' reports, Castel's testimony, and two Disability Determination Services’
(‘DDS’) reports in arriving at Castel's RFC. See SSR 96–8p … (advising that the
RFC assessment must consider all relevant evidence, including medical history,
medical evaluations, daily activities, and lay evidence). The ALJ ultimately decided
that Castel was capable of medium exertion level work and thus was capable of
performing past relevant work … We do not require the ALJ to ‘specifically refer to
every piece of evidence in his decision,’ so long as the decision is sufficient to allow
us to conclude that the ALJ considered the claimant's medical condition as a whole.
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam). The ALJ
found that the medium level work determination was consistent with the medical
evidence and found Castel’s RFC to be at a medium level of work. The ALJ
performed a proper RFC function analysis, based on substantial evidence, and we
shall defer to his conclusions.”); Carson v. Comm'r of Soc. Sec., 440 F. App'x 863,
864 (11th Cir. Sept. 21, 2011) (per curiam) (unpublished) (“Following [SSR 96-8p’s
‘function-by-function’] rubric, the ALJ fully discussed and evaluated the medical
evidence, Mr. Carson’s testimony, and the effect each impairment has on his daily
activities. While, the ALJ did not specifically refer to Mr. Carson’s ability to walk
or stand, the ALJ did limit Mr. Carson’s exertional level of work to ‘light work.’
‘Light work’ by definition limits the amount an individual can walk or stand for
approximately six hours in an eight-hour work day. See SSR 83–10, 1983 WL 31251
(S.S.A.). Furthermore, the ALJ’s thorough evaluation of Mr. Carson’s case led the
ALJ to adopt additional limitations to Mr. Carson's ability to perform light work.
Simply because the ALJ chose not to adopt further limitations on Mr. Carson's
ability to walk or stand, does not mean the ALJ did not properly consider the
alleged limitations.”); Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (“Where
an ALJ’s analysis at Step Four regarding a claimant’s functional limitations and
restrictions affords an adequate basis for meaningful judicial review, applies the
proper legal standards, and is supported by substantial evidence such that
additional analysis would be unnecessary or superfluous, we agree with our sister
Circuits that remand is not necessary merely because an explicit function-byfunction analysis was not performed.” (citing Zatz v. Astrue, 346 F. App’x 107, 111
(7th Cir. Oct. 5, 2009) (per curiam) (unpublished); Bayliss v. Barnhart, 427 F.3d
1211, 1217 (9th Cir. 2005); Depover v. Barnhart, 349 F.3d 563, 567–68 (8th Cir.
2003); Delgado v. Comm'r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. Mar. 4, 2002)
(per curiam) (unpublished)); Chavez v. Astrue, 276 F. App'x 627, 627-28 (9th Cir.
May 1, 2008) (per curiam) (unpublished) (“Chavez claims that the ALJ committed
legal error by determining his mental residual functional capacity without
performing a function-by-function assessment as required by Social Security Ruling
96-8p, 1996 WL 374184, at *3 (July 2, 1996). This claim fails because the ALJ
considered and noted ‘all of the relevant evidence’ bearing on Chavez's ‘ability to do
work-related activities,’ as required by the function-by-function analysis. See Soc.
Sec. Ruling 96-8p, 1996 WL 374184, at *3.”); Hendron v. Colvin, 767 F.3d 951, 95657 (10th Cir. 2014) (rejecting claimant’s contention that the ALJ’s “RFC is not in
the proper form” because the ALJ did not “separately discuss and make findings
regarding her abilities to sit, stand, walk, lift, carry, push, or pull” (citing Keyes–
Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012) (“Where, as here, we can
follow the adjudicator’s reasoning in conducting our review, and can determine that
correct legal standards have been applied, merely technical omissions in the ALJ's
reasoning do not dictate reversal. In conducting our review, we should, indeed must,
exercise common sense.... [W]e cannot insist on technical perfection.”))).
Accordingly, the Court OVERRULES Fox’s assertions of error in Claim 2.
“[T]he ALJ has a basic obligation to develop a full and fair record,”
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.1997) (per curiam),
which requires him to “order a consultative examination when such an
evaluation is necessary for him to make an informed decision,”
Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir.1988) (internal
quotation marks omitted). Where the record contains sufficient
evidence to allow an informed decision, however, the duty to fully and
fairly develop the record does not impose the requirement to order a
consultative examination. See Ingram v. Comm'r of Soc. Sec. Admin.,
496 F.3d 1253, 1269 (11th Cir.2007).
Johnson v. Comm'r, Soc. Sec. Admin., 618 F. App'x 544, 551 (11th Cir. July 9, 2015)
(per curiam) (unpublished). See also 20 C.F.R. §§ 404.1519a(b), § 416.919a(b) (“We
may purchase a consultative examination to try to resolve an inconsistency in the
evidence, or when the evidence as a whole is insufficient to allow us to make a
determination or decision on your claim. Some examples of when we might purchase
a consultative examination to secure needed medical evidence, such as clinical
findings, laboratory tests, a diagnosis, or prognosis, include but are not limited to:
(1) The additional evidence needed is not contained in the records of your medical
sources; (2) The evidence that may have been available from your treating or other
medical sources cannot be obtained for reasons beyond your control, such as death
or noncooperation of a medical source; (3) Highly technical or specialized medical
evidence that we need is not available from your treating or other medical sources;
or (4) There is an indication of a change in your condition that is likely to affect your
ability to work, but the current severity of your impairment is not established.”).
Here, Fox asserts that her “diagnosis of multi-level degenerative disc disease
of the cervical spine, in combination with the Administrative Law Judge assigning
less than controlling weight to the opinions of [Fox]’s treating physician, triggered
the Administrative Law Judge’s duty to develop the record by ordering a
consultative orthopedic examination.” (Doc. 10 at 11). In essence, this is another
way of asserting that the ALJ must accept at least one medical opinion before
making a disability determination, a proposition that the Court has already
rejected, see supra. Regardless, the record contains more than sufficient medical
evidence regarding Fox’s cervical spine impairments allowing for an informed
decision from the ALJ, including the treatment notes of two treating physicians, Dr.
Pasala and Dr. Dempsey. See McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011)
(“McCoy also argues that the ALJ erred by failing to develop the record on whether
McCoy did, in fact, have a sustained disturbance in gross movement or gait and
station. However, this argument mischaracterizes the ALJ’s burden. While an ALJ
does have a duty to develop the record, this duty is not never-ending and an ALJ is
not required to disprove every possible impairment. The ALJ is required to order
medical examinations and tests only if the medical records presented to him do not
give sufficient medical evidence to determine whether the claimant is disabled.
Here there was voluminous evidence documenting the effects of McCoy's
Parkinson's disease and the ALJ’s decision that McCoy had no sustained
disturbance in gross movement or station and gait was supported by substantial
evidence.” (citations omitted)).11
Accordingly, the Court OVERRULES Fox’s assertions of error in Claim 3
and finds that the Commissioner’s final decision is due to be AFFIRMED.
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued March 16, 2015, denying Fox’s applications for
DIB and SSI benefits is AFFIRMED under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Final judgment shall issue separately in accordance with this Order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 20th day of April 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
Fox complains that her counsel “requested an orthopaedic consultative examination” but
that the ALJ “did not address or otherwise evaluate” the request, either at the hearing or in
her decision. (Doc. 10 at 9 – 10). Notwithstanding the Court’s determination that the ALJ
was not required to order a consultative examination, the ALJ has discretion to determine
the best way to resolve any inconsistency or insufficiency in the evidence, which may
include ordering a consultative examination. See 20 C.F.R. §§ 404.1520b(c), 416.920b(c).
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