Wilson v. Colvin

Filing 17

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 9/13/2016. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EDWARD E. WILSON,

:

Plaintiff,

:

vs.

:

CA 15-0446-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), 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.
(Doc. 14 (“In accordance with the 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 postjudgment proceedings.”); see also Doc. 16 (order of reference).) Upon consideration of
the administrative record, plaintiff’s brief, the Commissioner’s brief, and the arguments
of counsel at the August 18, 2016 hearing before the Court, it is determined that the
Commissioner’s decision denying benefits should be affirmed.1

1

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 14 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”))

Plaintiff alleges disability due to advanced degenerative osteoarthritis of the
right shoulder joint secondary to traumatic injuries and two surgical procedures,
myofascial pain syndrome secondary to established mild retrolisthesis of the L5 and S1
vertebrae, probable lifelong borderline intellectual functioning, and a depressive
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 June 30, 2015.
2.
The claimant has not engaged in substantial gainful activity since
December 2, 2011, the alleged onset date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe medical impairments:
advanced degenerative osteoarthritis of the right shoulder joint
secondary to traumatic injuries and two surgical procedures, a
myofascial pain syndrome secondary to established mild retrolisthesis
of the L5 and S1 vertebrae, probable lifelong borderline intellectual
functioning, and a depressive disorder (20 CFR 404.1520(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 and 404.1526).
.

.

.

5.
After careful consideration of the entire record, the undersigned
finds that the claimant still has the residual functional capacity to
perform many elements of light level work as defined in 20 CFR
404.1567(b), even though he cannot perform a “full range” of such work
as described in SSR 83-10. The claimant should not perform pushing or
pulling with the dominant right upper extremity. He will need to use an
immobilizer on his right shoulder and arm when in the workplace. The
right hand will be a base helper hand at desktop level with no further
functional use. The claimant should never climb ladders, ropes, or
scaffolds; never crawl or reach overhead with the right dominant upper
extremity. Due to the potential for sedation from the side effects of
medications taken, the claimant should not work at unprotected
heights, around vibration, around dangerous machinery, or drive
automotive equipment. The claimant would have deficits in
concentration, persistence, or pace that would preclude production pace
work, and he should be limited to short simple tasks with occasional
2

changes in the work setting introduced gradually. Lastly, the claimant
should not be required to perform tasks requiring him to read above a
second or third grade level.
In making this finding, the undersigned has 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. The
undersigned has 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, the undersigned 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, the undersigned 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, the undersigned must make a finding on the credibility of the
statements based on a consideration of the entire case record.
The claimant alleges that he cannot work due to “right rotator cuff[], neck,
arm, back, [and] slow learner”. The claimant reported that he cannot lift
very much, very often. He stated that he can do very little with his right
arm. He alleges difficulty also bending at the waist. The claimant reports
that he never socializes with friends; however, he reported attending
church from time to time and shopping. He stated that he does have
trouble following instructions; however, he reported that he can count
change and handle bank accounts. The claimant reported in July 2012 that
his “back and neck pain” are worse. He reported worsening anxiety and
depression. He also stated that he planned to obtain new treatment by
August 2012, but this referred to psychological treatment only. The
claimant reported difficulty bathing due to his shoulder and bending
“because of his back”.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause only some of his alleged symptoms. Moreover, the claimant’s statements
concerning the intensity, persistence and limiting effects of his symptoms are not
entirely credible for the many reasons explained in this decision. Indeed, if
accommodated within the workplace as described above, he would not experience
pain or other symptoms in any significant severity, frequency, or duration.
3

In terms of the claimant’s physical impairment[s], his alleged limitations
are not fully consistent with the medical evidence. The claimant still
reported that he can care for his two dogs as of April 2012. He stated that
he feeds them and lets them out of the house. He reported that he can
prepare simple meals, and he stated that he can drive alone. He stated that
he shops once a month for thirty minutes as well as some other quick
trips. The claimant confirmed that he can go to church from time to time
as well.
Moreover, the claimant has repeatedly been unable to remember the name
of a third pain medication in addition to Lortab and Mobic/Meloxicam.
He now testified that he takes only over-the-counter pain medications.
This has been the case, even according to his testimony, since the summer
of 2013. However, the most recent documentary evidence of any
prescribed pain medication actually occurred earlier during February
2013. Although the claimant’s worker’s compensation settlement provides
for treatment related to his worker’s compensation injury indefinitely in
Exhibit 9E, the claimant testified that he has been between treating sources
for over a year now due to his drug testing that showed positive results
for cocaine. Still, despite his testimony that he is aware that treatment is
available at the Stanton Road Clinic, the claimant had virtually no
treatment. The only report of any complaints at the Stanton Road Clinic
was a concern that he may have had blood in his stool in September 2013
and again in January 2014. He had a similar complaint at the emergency
room on one occasion, but there was no complaint that he had pain in his
shoulder or the degree of limitation he now alleges. None of these sources
indicated that he was wearing his neck brace either.
The claimant testified that the last time he was prescribed pain medication
was when Wayne P. Cockrell, M.D. stopped treating him. Even the
claimant testified that he has not been using medications since the
summer of 2013. There is no objective evidence of use since February 2013.
Still, the claimant testified that he had been on Lortab, Mobic, and
Zanaflex. The claimant testified that they did help although they often put
him to sleep.
The most recent actual treatment for his shoulder obtained by the claimant
was in April 2013 with Dr. Cockrell. However, even during this treatment,
the claimant reported having pain only rated as a 7 on a scale of zero to
ten. He stated that it was normally eight and that the medications only
reduced the pain to a six or seven. Still, Dr. Cockrell stated that the
claimant’s “significant symptom magnification focusing on the shoulder
and the pain symptoms” did hinder his treatment. Still, the surgery on his
shoulder was indicated to be helpful. However, the claimant avoided
home exercises and had little physical therapy due to his complaints of
pain. The claimant’s aunt moved into his house, but, instead of allowing
him to perform more exercises as Dr. Cockrell had thought, the claimant
actually reverted back to performing fewer activities. The claimant’s
4

testimony of extensively diminished activities of daily living w[as] clearly
most [a]ffected by having someone to perform these activities for him
[and] not his inability to do them. He did them in the past, but he has
since stopped now that someone else is performing them. According to
the claimant, Dr. Cockrell discontinued his treatment of the claimant
based on a positive drug screen for cocaine.
Still, even prior to that time, the claimant had only infrequent treatment
with Dr. Cockrell. Dr. Cockrell has consistently noted symptom
magnification, but he did note limited range of motion in the right
shoulder. Dr. Cockrell also noted inconsistencies that included the failure
to exert as much force in grip testing than in his normal handshake and
failure to follow through on several treatment modalities including
physical therapy and behavioral therapy.
The claimant’s x-rays of the right shoulder do show advanced
degenerative changes of the right glenohumeral joint with postsurgical
changes. There was cortical irregularity along the superolateral right
humeral head contour, which may represent a Hill-Sachs deformity.
However, there was no evidence of acute fracture or dislocation. The
claimant also had nerve conduction studies on the upper extremities in
October 2013. The claimant’s study was normal.
Furthermore, although the claimant sought no treatment for lower back
pain, he did have an x-ray of the lower back as well. [] [T]he claimant also
had an x-ray of the lumbar spine in September 2013. These showed only
mild retrolisthesis of L5 on L1 and small sclerotic densities overlying the
bilateral SI joints, which could represent ingested material, soft tissue
calcification, or bone islands.
[] Dr. Sharpe had both x-rays available to her during the examination she
conducted on September 27, 2013. [] [H]er examination shows that there
were no abnormalities with regard to the neck or lower back to the extent
that he complied. [] [S]he observed that the claimant had no assistive
device, had nearly normal range of motion in the wrists and fingers, and
had “5/5” or full muscle bulk, strength, and tone on both sides. His grip
strength was even rated 5/5. She stated that the claimant had no evidence
of atrophy, and the claimant also had no evidence of limitations in the
testing of his reflexes or sensation in both the upper and lower extremities.
He was able to get up and down from the examination table with no
difficulty. According to Dr. Sharpe, he even was able to take his shoes off
and put them back on although there was some difficulty. She concluded
that he would have no difficulty standing, walking, or sitting for eight
hours each in an eight-hour day. She noted no limitation in his ability to
reach, handle, finger, feel, push, or pull with the left hand although he
refused to allow her to examine the right. She even concluded that he
should be capable of balancing or climbing on a frequent basis. Therefore,
due to his impairments, the claimant would be limited to lifting and
carrying no more than twenty pounds occasionally or ten pounds
5

frequently. He can stand and walk for six hours total in an eight-hour day.
He can sit for six hours total in an eight-hour day. Therefore, he would be
restricted to work at the light exertional level. However, the claimant
should not perform pushing or pulling with the right dominant upper
extremity. The claimant is right-hand dominant. He will need to use an
immobilizer on his right shoulder and arm when in the workplace. The
right hand will be a base helper hand at desktop level with no further
functional use. The claimant should never climb ladders, ropes, or
scaffolds; never crawl; and never reach overhead with the right dominant
upper extremity. Due to the potential for sedation from the side effects of
medications taken, the claimant should not work at unprotected heights,
around vibrations, around dangerous machinery, or drive automotive
equipment.
In terms of the claimant’s mental impairments, the alleged limitations are
not consistent with the evidence. The claimant was examined in June 2012
by Kenneth Starkey, Psy.D. However, Dr. Starkey not only indicated that
the claimant’s global assessment of functioning (GAF) was 65, indicating
mild symptoms, but Dr. Starkey stated that the claimant’s pain disorder
itself was only “mild.” The claimant reported that he can take his mother
to the store or help her pay bills. He also reported that he can go to the
doctor and the grocery store. In fact, the claimant drove himself to the
examination. The claimant had an euthymic mood according to Dr.
Starkey and a congruent affect. However, like in other examinations, the
claimant was evasive regarding both his arrest history and substance use
patterns. Dr. Starkey ultimately stated that the claimant was only
marginally motivated for or cooperative with the evaluation.
Dr. Starkey stated that the claimant’s ability to understand, remember,
and carry out simple/concrete instructions appears adequate, and his
ability to work independently also appears adequate. He even stated that
the claimant has adequate ability to work with supervisors, co-workers
and [the] general public.
Although Dr. John W. Davis, Ph.D. stated that the claimant’s results of an
IQ test he administered were not valid, Dr. Starkey had already indicated
his assessment of the claimant’s IQ as being only borderline intelligence.
Dr. Davis confirmed that the claimant’s test results were not consistent
with his work history, activities of daily living, or driver’s license.
Although he does not even diagnose the claimant with borderline
intellectual functioning, Dr. Starkey’s assessment is the lowest assessment
of the claimant’s intellectual functioning in the evidence. [] [T]he claimant
confirmed that he actually completed the tenth grade in 1988. Even his
school history, reporting that he had failed only one grade, even with
special education, is inconsistent with intellectual functioning any lower
than Dr. Starkey suggests.
Nonetheless, based on his examination of the claimant, Dr. Davis was able
to conclude that the claimant would have only mild limitations in the
6

ability to understand, remember, and carry out instructions or make
judgments on work-related decisions. He stated that there would also be
only mild limitations in the ability of the claimant to interact appropriately
with supervisors, coworkers, or the general public. He stated that there
would be only mild limitations in the ability to respond appropriately to
usual work situations or changes in a routine work setting.
Likewise, despite the combination of a diagnosed pain disorder and
borderline intellectual functioning, the claimant has no evidence that he
ever sought mental health treatment or vocational assistance. The claimant
also performed work in the past that was at least at an unskilled level
despite any intellectual impairment. Even considering the combined
effects of all his physical and psychological impairments, the claimant
would be capable of work involving short simple tasks.
Therefore, the claimant can only be considered to have even the degree of
limitation expressed in the residual functional capacity when given
extensive benefit of the doubt that the combined effects of his impairments
would limit more complex work activities. To that end, the claimant
would have deficits in concentration, persistence, or pace that would
preclude production pace work, and he should be limited to short simple
tasks with occasional changes in the work setting introduced gradually.
The claimant should not be required to read above a second or third grade
level.
As for the opinion evidence, great weigh is given to the opinion of F.K.
Yamamoto, M.D. in Exhibit 7F. After his consideration of the evidence, he
noted that the symptom magnification indicated by Dr. Cockrell and
others would not change the previous assessment from June 2012 that
indicates an ability to perform work at the light exertional level. Although
he is a non-examining physician, his opinion is consistent with the
remainder of the evidence.
Furthermore, some weight is given to the opinion of Dr. Sharpe. Her
examination report provides extensive support to the limitations that she
expressed. Moreover, in light of Dr. Yamamoto’s statements that the
claimant can perform work at the light exertional level, the failure of the
claimant to allow examination of his right upper extremity becomes far
less of an issue. Dr. Sharpe’s opinion is consistent with the remainder of
the evidence even in spite of the symptom magnification noted
throughout Dr. Cockrell’s treatment notes. Still, Dr. Sharpe’s opinion is
only given some weight because I have given great consideration and
benefit of the doubt to the claimant that his right upper extremity is more
limited than any source suggests. Nonetheless, the abilities in Dr. Sharpe’s
examination are the most consistent with the remainder of the evidence.
No significant weight can be given to the opinion of Dr. Cockrell that the
claimant can perform sedentary work. This conclusion is not consistent
with even his own treatment notes, which fail to show limitations in
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walking or standing due to any lower extremity issues. Although this
restriction would be inconsistent with the claimant’s assertions of
disability, I cannot provide this assessment any significant weight due to
the absence of any clinical findings related to the lower extremities.
Great weight is given to the opinion of Dr. Starkey that the claimant
would be limited to simple instructions. His assessment is largely
consistent with the remainder of the evidence. However, no weight can be
given to the statement that the claimant would have only marginal ability
to handle work pressures. This limitation is not borne out in the
remainder of the examination or the remainder of the evidence. The
claimant has no treatment or evidence of cocaine abuse exclusive of one
positive drug screen. Dr. Starkey appears to draw from the claimant’s
evasiveness regarding the claimant’s criminal history that there was more
evidence of substance abuse. The claimant explicitly denied any recent
substance abuse to repeated sources. Dr. Starkey’s consideration of work
pressures is inconsistent with his global assessment of functioning
suggesting only moderate symptoms. It is also inconsistent with the
findings of Bruce Lipetz, Psy.D.
The opinion of Dr. Lipetz is also given great weight. Although he is a nonexamining psychologist, his assessment is consistent with the remainder
of the medical evidence. He is a mental health specialist. Likewise, his
narrative explanations and full consideration of the claimant’s mental
health history provide his opinion added weight.
The opinion of Dr. Davis is not given significant weight. Although there is
no evidence to contradict his opinion expressed on the forms he
completed following his examination of the claimant, greater weight is
given to the opinion of Dr. Starkey given Dr. Davis’s own conclusions that
the claimant was not adequately motivated to participate with his testing.
Nonetheless, Dr. Davis’s conclusions and the limitations expressed on the
form do support the absence of any deterioration in the claimant’s
psychological impairments since the time that Dr. Starkey completed his
examination.
Furthermore, Arthur Lorber, M.D., the medical expert providing
testimony at the hearing, has considered all the medical evidence
considered germane by the claimant’s representative and the
undersigned. His extensive training and specialization provide his
opinion great weight regarding the limitations arising from orthopedically
related impairments. However, the remainder of his opinion is also well
informed by the evidence and he is well qualified to offer the opinions
made. His opinion has been largely incorporated into the residual
functional capacity assessment; however, some greater limitations that are
included in the residual functional capacity have been considered,
particularly in the psychological limitations upon which Dr. Lorber
deferred given that he is not a psychologist or psychiatrist.
8

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Lastly, it is very noteworthy that Drs. Crotwell, Sharpe, and even Cockrell
have all seriously questioned the nature of the claimant’s symptomatic
complaints during examination and/or treatment. Moreover, clinical
testing by Dr. Yeager found nothing neurologically from an objective
standpoint to truly confirm the claimant’s alleged complete functional use
of his dominant right upper extremity (e.g. repeated physical examination
findings of bilaterally symmetrical muscle tone and mass in the shoulders
and upper and lower arms and normal NCV test results for the right
upper extremity). When considered in the context of the claimant’s
documented history of substance abuse (e.g. cocaine on one or more urine
drug screen tests and discharge from a pain management treatment
program in April 2013 by Dr. Cockrell) and dubious effort and
cooperation during clinical psychological testing attempts, serious
questions regarding credibility arise about him as a witness and informant
about his disability appeal.
In summary, the above residual functional capacity assessment is
supported by the inconstancy of the claimant’s reported symptoms during
even the limited treatment that he sought, the activities of daily living
inconsistent with his allegations, the absence of clinical signs or diagnostic
testing to support his alleged limitations, the effectiveness of prescription
medication taken in the past, the effectiveness of even the over-thecounter medications taken now, the limited compliance with either home
exercises or physical therapy provided for the right shoulder, the
discharge from pain management treatment, the opinion of Dr. Davis, the
opinion of Dr. Starkey, the opinion of Dr. Sharpe, and the opinion of Dr.
Yamamoto.
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565).
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.

.

7.
The claimant was born on August 13, 1970 and was 41 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563). He is still currently within the
same age classification at 43 years old.
8.
The claimant has the practical equivalent of a marginal to low
level limited education; but he is able to communicate verbally in
English and read and write at a second to third grade level (20 CFR
404.1564).
9.
Transferability of job skills is not an issue in this case because
the claimant’s past relevant work is unskilled (20 CFR 404.1568).

9

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 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 202.17. 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, the
Administrative Law Judge 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 routing clerk, DOT Code 222.587-038; a ticket taker, DOT Code
344.667-010; and a marker, DOT Code 209.587-034. She testified that there
are approximately 2,900 jobs as a routing clerk; 1,100 jobs as a ticket taker;
and 4,900 jobs as a marker in the state of Alabama. She testified that there
are approximately 716,000 jobs as a routing clerk; 45,000 jobs as a ticket
taker; and 1,087,000 jobs as a marker in the national economy.
Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert’s testimony is consistent with the information contained
in the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant is capable of still
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 2, 2011, through the date of this
decision (20 CFR 404.1520(g)).
(Tr. 15, 16, 18-23, 25, 26, 26-27 & 27 (internal citations omitted; emphasis in original).)
The Appeals Council affirmed the ALJ’s decision (Tr. 1-3) and thus, the hearing decision
became the final decision of the Commissioner of Social Security.
DISCUSSION
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
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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 Social Sec., 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). The claimant bears the
burden, at the fourth step, 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. 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) (citations omitted). 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. 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).

2

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

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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 unskilled light
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 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 substantial evidence.’” Id. (quoting Crawford v. Commissioner of
Social Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, Wilson 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 erred in acting as both judge and physician by substituting his own medical
opinion for the opinion of a medical professional in violation of Marbury v. Sullivan and
by assessing RFC without utilizing the full testimony of the impartial medical expert the
ALJ practices medicine in violation of SSR 96-2p; and (2) the ALJ erred in failing to

3

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).

12

provide evidence demonstrating the existence of other work in significant numbers in
the national economy that plaintiff could perform given the assigned RFC.
A.

Marbury v. Sullivan and Whether the ALJ in this Case Practices

Medicine. Plaintiff’s primary complaint is that the ALJ erred in acting as both judge
and physician by substituting his own medical opinion for the opinion of a medical
professional in violation of Marbury v. Sullivan and by assessing RFC without utilizing
the full testimony of the impartial medical expert the ALJ practices medicine in
violation of SSR 96-2p. The undersigned “approaches” plaintiff’s two-pronged principal
assignment of error through the prism of the RFC assessment in this case, as does the
plaintiff (see Doc. 8, at 2-7).
Initially, the undersigned notes that the responsibility for making the residual
functional capacity determination rests with the ALJ. Compare 20 C.F.R. § 404.1546(c)
(“If your case is at the administrative law judge hearing level . . ., the administrative law
judge . . . is responsible for assessing your residual functional capacity.”) with, e.g.,
Packer v. Commissioner, Social Security Admin., 542 Fed. Appx. 890, 891-892 (11th Cir. Oct.
29, 2013) (per curiam) (“An RFC determination is an assessment, based on all relevant
evidence, of a claimant’s remaining ability to do work despite her impairments. There is
no rigid requirement that the ALJ specifically refer to every piece of evidence, so long as
the ALJ’s decision is not a broad rejection, i.e., where the ALJ does not provide enough
reasoning for a reviewing court to conclude that the ALJ considered the claimant’s
medical condition as a whole.” (internal citation omitted)). A plaintiff’s RFC—which
“includes physical abilities, such as sitting, standing or walking, and mental abilities,
such as the ability to understand, remember and carry out instructions or to respond
appropriately to supervision, co-workers and work pressure[]”—“is a[n] [] assessment
of what the claimant can do in a work setting despite any mental, physical or
13

environmental limitations caused by the claimant’s impairments and related
symptoms.” Watkins, supra, 457 Fed. Appx. at 870 n.5 (citing 20 C.F.R. §§ 404.1545(a)-(c),
416.945(a)-(c)). Here, the ALJ’s RFC assessment consisted of the following: “After
careful consideration of the entire record, the undersigned finds that the claimant
still has the residual functional capacity to perform many elements of light level
work as defined in 20 CFR 404.1567(b), even though he cannot perform a “full range”
of such work as described in SSR 83-10. The claimant should not perform pushing or
pulling with the dominant right upper extremity. He will need to use an immobilizer
on his right shoulder and arm when in the workplace. The right hand will be a base
helper hand at desktop level with no further functional use. The claimant should
never climb ladders, ropes, or scaffolds; never crawl or reach overhead with the right
dominant upper extremity. Due to the potential for sedation from the side effects of
medications taken, the claimant should not work at unprotected heights, around
vibration, around dangerous machinery, or drive automotive equipment. The
claimant would have deficits in concentration, persistence, or pace that would
preclude production pace work, and he should be limited to short simple tasks with
occasional changes in the work setting introduced gradually. Lastly, the claimant
should not be required to perform tasks requiring him to read above a second or
third grade level.” (Tr. 18 (emphasis in original).)
To find that an ALJ’s RFC determination is supported by substantial evidence, it
must be shown that the ALJ has “’provide[d] a sufficient rationale to link’” substantial
record evidence “’to the legal conclusions reached.’” Ricks v. Astrue, 2012 WL 1020428,
*9 (M.D. Fla. Mar. 27, 2012) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D.
Fla. 2005)); compare id. with Packer v. Astrue, 2013 WL 593497, *4 (S.D.Ala. Feb. 14, 2013)
(“’[T]he ALJ must link the RFC assessment to specific evidence in the record bearing
14

upon the claimant’s ability to perform the physical, mental, sensory, and other
requirements of work.’”), aff’d, 542 Fed. Appx. 890 (11th Cir. Oct. 29, 2013)4; see also
Hanna v. Astrue, 395 Fed. Appx. 634, 636 (11th Cir. Sept. 9, 2010) (per curiam) (“The ALJ
must state the grounds for his decision with clarity to enable us to conduct meaningful
review. . . . Absent such explanation, it is unclear whether substantial evidence
supported the ALJ’s findings; and the decision does not provide a meaningful basis
upon which we can review [a plaintiff’s] case.” (internal citation omitted)).5 However,
in order to find the ALJ’s RFC assessment supported by substantial evidence, it is not
necessary for the ALJ’s assessment to be supported by the assessment of an examining
or treating physician. See, e.g., Packer, supra, 2013 WL 593497, at *3 (“[N]umerous court
have upheld ALJs’ RFC determinations notwithstanding the absence of an assessment

4

In affirming the ALJ, the Eleventh Circuit rejected Packer’s substantial evidence
argument, noting, she “failed to establish that her RFC assessment was not supported by
substantial evidence[]” in light of the ALJ’s consideration of her credibility and the medical
evidence. Id. at 892.
5

It is the ALJ’s (or, in some cases, the Appeals Council’s) responsibility, not the
responsibility of the Commissioner’s counsel on appeal to this Court, to “state with clarity” the
grounds for an RFC determination. Stated differently, “linkage” may not be manufactured
speculatively by the Commissioner—using “the record as a whole”—on appeal, but rather,
must be clearly set forth in the Commissioner’s decision. See, e.g., Durham v. Astrue, 2010 WL
3825617, *3 (M.D. Ala. Sept. 24, 2010) (rejecting the Commissioner’s request to affirm an ALJ’s
decision because, according to the Commissioner, overall, the decision was “adequately
explained and supported by substantial evidence in the record”; holding that affirming that
decision would require that the court “ignor[e] what the law requires of the ALJ[; t]he court
‘must reverse [the ALJ’s decision] when the ALJ has failed to provide the reviewing court with
sufficient reasoning for determining that the proper legal analysis has been conducted’”
(quoting Hanna, 395 Fed. Appx. at 636 (internal quotation marks omitted))); see also id. at *3 n.4
(“In his brief, the Commissioner sets forth the evidence on which the ALJ could have relied . . . .
There may very well be ample reason, supported by the record, for [the ALJ’s ultimate
conclusion]. However, because the ALJ did not state his reasons, the court cannot evaluate
them for substantial evidentiary support. Here, the court does not hold that the ALJ’s ultimate
conclusion is unsupportable on the present record; the court holds only that the ALJ did not
conduct the analysis that the law requires him to conduct.” (emphasis in original)); Patterson v.
Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (“We must . . . affirm the ALJ’s decision only upon
the reasons he gave.”).

15

performed by an examining or treating physician.”); McMillian v. Astrue, 2012 WL
1565624, *4 n.5 (S.D. Ala. May 1, 2012) (noting that decisions of this Court “in which a
matter is remanded to the Commissioner because the ALJ’s RFC determination was not
supported by substantial and tangible evidence still accurately reflect the view of this
Court, but not to the extent that such decisions are interpreted to require that
substantial and tangible evidence must—in all cases—include an RFC or PCE from a
physician” (internal punctuation altered and citation omitted)); but cf. Coleman v.
Barnhart, 264 F.Supp.2d 1007 (S.D. Ala. 2003).
As this Court understands it, plaintiff contends that the ALJ’s RFC
determination—for a limited range of light work—is not supported by substantial
evidence because, in reaching this determination, the ALJ substituted his medical
opinion for that of a treating physician—Dr. Cockrell—in violation of Marbury v.
Sullivan and “fixated” on the diagnosis of symptom magnification, while eschewing Dr.
Cockrell’s examination findings, when weighing the plaintiff’s credibility. (See Doc. 8, at
2-7.) In addition, plaintiff contends that the ALJ assessed plaintiff’s RFC without
utilizing the full testimony of the impartial medical expert—specifically, the testimony
that plaintiff was a candidate for shoulder fusion surgery—and thereby effectively
practiced medicine in violation of SSR 96-2p. (See id. at 2 & 7.)
In concurring in the result reached in Marbury v. Sullivan, 957 F.2d 837 (11th Cir.
1992), Senior Circuit Judge Johnson noted that “[a]n ALJ sitting as a hearing officer
abuses his discretion when he substitutes his own uninformed medical evaluations for
those of a claimant’s treating physicians[.]” Id. at 840 (emphasis supplied); see also id. at
840-841 (“[A]s a hearing officer[, the ALJ] may not arbitrarily substitute his own hunch

16

or intuition for the diagnosis of a medical professional.” (emphasis supplied)).6
Plaintiff’s reliance on Marbury in this case is unavailing for the simple fact that, as
aforesaid, ALJs are specifically tasked with making RFC determinations, compare, e.g.,
20 C.F.R. § 404.1546(c) with Packer, supra, 542 Fed.Appx. at 891-892, and Wilson makes
no argument that the ALJ substituted his own uninformed medical evaluation or
diagnosis for the diagnosis of a treating physician. Instead, here, the ALJ simply
rejected Dr. Cockrell’s opinion that the claimant “can perform sedentary work.” (Tr. 22;
compare id. with Tr. 364 (“I do agree with Dr. Crotwell that Mr. Wilson should be able to
do at least sedentary work[.]” (emphasis supplied).) And because the ALJ articulated a
very good reason for rejecting Dr. Cockrell’s suggestion—that is, the fact that the
treating pain doctor’s own treatment notes did not “show limitations in walking or
standing due to any lower extremity issues[]” (Tr. 22; see also id. (“Although this
restriction would be inconsistent with the claimant’s assertions of disability, I cannot
provide this assessment any significant weight due to the absence of any clinical
findings related to the lower extremities.”))7—this Court cannot find that the ALJ ran
afoul of Marbury in any manner related to the failure to afford Dr. Cockrell’s “sedentary
work” opinion significant weight. See, e.g., Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th
Cir. 2004) (recognizing that good cause for failing to accord the opinion of a treating
physician substantial or considerable weight includes situations in which the opinion is
6

In Marbury, Judge Johnson was specifically concerned with the ALJ’s failure to
accord any weight to the diagnoses of two treating physicians that the claimant suffered from a
psychogenically caused seizure disorder. Id. at 840.
7

Indeed, in July of 2012, Dr. Cockrell specifically declined Wilson’s request to
complete a form for him to obtain a handicap sticker for his car. (See Tr. 392 (“Of note, Mr.
Wilson today request[s] a handicap sticker stating that he has difficulty even ambulating
secondary to shoulder pain. This does not seem particularly reasonable to me and that has not
been filled out.”).)

17

conclusory and inconsistent with the doctor’s own medical records). Moreover, with
respect to plaintiff’s pain allegations, the ALJ not once suggested that plaintiff suffers
from no pain (Tr. 19-25); instead, the ALJ found, and the record supports, that Wilson
experiences no severe disabling pain and would suffer little pain in the workplace upon
proper accommodation (compare id. with Tr. 18, 57 & 59). In this regard, the ALJ did not
simply rely upon Dr. Cockrell’s ubiquitous references to plaintiff’s symptom
magnification and concomitant failure to improve function through physical
therapy/home exercises (compare Tr. 20 & 25 with Tr. 362-365, 367-368, 391-396 & 399400) but, as well, his activities of daily living—including, feeding and otherwise caring
for his two dogs, preparing simple meals, driving alone, and attending church (compare
Tr. 19 & 25 with Tr. 307-309), his infrequent treatment by Dr. Cockrell—only every three
months (compare Tr. 20 with Tr. 362, 364, 367, 391, 393, 395 & 399)—and ultimate
discontinuation of treatment by this physician due to a positive cocaine screen (compare
Tr. 19 & 20 with Tr. 60-62, 70 & 400), his ability to handle his pain with over-the-counter
medication following the discontinuation of treatment by Dr. Cockrell (compare Tr. 25
with Tr. 70 & 397-398), objective evidence inconsistent with disabling pain (compare Tr.
25 with Tr. 427 (normal nerve conduction study)), and the opinions of Drs. F.K.
Yamamoto and Thomasina Sharpe (compare Tr. 25 with Tr. 388 & 415-424). The foregoing
evidence establishes that Wilson does not experience severe disabling pain and, when
combined with the hearing testimony of medical expert Dr. Arthur Lorber, an
orthopaedic surgeon (see Tr. 436), constitutes substantial support for the ALJ’s
“physical” RFC determination.8 Indeed, it was Dr. Lorber’s opinion, upon a review of
8

Nothing about this assignment of error can be regarded as an attack on the ALJ’s
“mental” RFC determination. (See Doc. 8, at 2-7.)

18

the medical records and having listened to Wilson’s testimony (Tr. 51-52), that
plaintiff’s impairments did not meet or medically equal an “orthopedic” listing (Tr. 56)
and that he retains the residual functional capacity to frequently lift 10 pounds and
occasionally lift 20 pounds with the non-dominant left upper extremity,9 with no
restrictions on sitting, standing, or walking, but an inability—because of his essential
one-handedness—to climb ladders, scaffolds, and ropes or work at unprotected heights,
and he should avoid exposure to concentrated vibration (Tr. 57). In addition to the
foregoing testimony, Dr. Lorber testified that he would not expect an individual like
plaintiff to suffer significant pain “[a]s long as the shoulder is immobilized and not
moving[.]” (Id. at 59; see also id. at 60 (“[B]y in large in my experience, individuals with
severe lineal humeral joint pathology, once the[] shoulder is immobilized, the level of
pain goes down considerably to a point which is tolerable.”).) Because the ALJ
appropriately “linked” his physical RFC determination (see Tr. 18 (“After careful
consideration of the entire record, the undersigned finds that the claimant still has
the residual functional capacity to perform many elements of light level work as
defined in 20 CFR 404.1567(b), even though he cannot perform a “full range” of such
work as described in SSR 83-10. The claimant should not perform pushing or pulling
with the dominant right upper extremity. He will need to use an immobilizer on his
right shoulder and arm when in the workplace. The right hand will be a base helper
hand at desktop level with no further functional use. The claimant should never
climb ladders, ropes, or scaffolds; never crawl or reach overhead with the right
dominant upper extremity. Due to the potential for sedation from the side effects of
9

“He does not require any manipulative restrictions regarding the use of his left
upper extremity.” (Tr. 57.)

19

medications taken, the claimant should not work at unprotected heights, around
vibration, around dangerous machinery, or drive automotive equipment.”)) to all of
the foregoing evidence of record (see Tr. 19-25), this Court does not hesitate either in
finding that the ALJ’s RFC determination is supported by substantial evidence or in
rejecting the first prong—that is, the Marbury/credibility prong—of plaintiff’s first
assignment of error.
The second part of plaintiff’s argument is that the ALJ assessed plaintiff’s RFC
without utilizing the full testimony of the impartial medical expert—specifically, the
testimony that plaintiff was a candidate for shoulder fusion surgery—and thereby
effectively practiced medicine in violation of SSR 96-2p. (Doc. 8, at 2 & 7.) This Court
simply cannot agree with plaintiff’s argument in this regard inasmuch as Dr. Lorber’s
testimony regarding plaintiff’s candidacy for shoulder fusion surgery (Tr. 58)10 would
have no additional impact on the RFC determination of the ALJ inasmuch as that
determination “recognizes” plaintiff’s wholesale inability to utilize his right upper
extremity other than using the right hand as “a base helper hand[.]” (Compare Tr. 58
(“Such a procedure [shoulder fusion] would eliminate pain emanating from his
shoulder joint because there could be no motion once the fusion is successful.”) and Tr.
59 (“As long as the shoulder is immobilized and not moving, I would not anticipate
significant pain.”) with Tr. 18 (“The claimant should not perform pushing or pulling
with the dominant right upper extremity. He will need to use an immobilizer on his
right shoulder and arm when in the workplace. The right hand will be a base helper
10

Dr. Lorber specifically testified that he could not determine from the available
evidence whether plaintiff is a candidate for shoulder replacement surgery. (Tr. 58.)
Accordingly, the ALJ was not under any obligation to give any consideration to speculative
testimony that has no import with respect to the decision reached.

20

hand at desktop level with no further functional use. The claimant should never
climb ladders, ropes, or scaffolds; never crawl or reach overhead with the right
dominant upper extremity.”).) Stated somewhat differently, it certainly appears to this
Court that the ALJ specifically considered plaintiff’s candidacy for shoulder fusion
surgery by totally limiting plaintiff’s functional use of his dominate right upper
extremity save for use of the right hand as a base helper hand. Accordingly, the
undersigned finds that the second part of plaintiff’s first assignment of error also fails.
In sum, this Court finds that the ALJ’s RFC assessment provides an articulated
linkage to the medical (and other) evidence of record and is, therefore, supported by
substantial evidence. Plaintiff’s two-headed first claim lacks merit for the reasons
previously explained in no small detail.
B.

Does the Vocational Expert’s Testimony Conflict with the

the

Dictionary of Occupational Titles? Plaintiff contends that the ALJ erred in failing to
provide evidence demonstrating the existence of other work in significant numbers in
the national economy that he can perform given the assigned residual functional
capacity. (Doc. 8, at 7; see also id. at 8-10.) More specifically, Wilson argues that given the
ALJ’s specific RFC finding that he is limited to “short, simple tasks with occasional
changes in the work setting introduced gradually[]” (Tr. 18), the VE’s testimony that he
can perform work as a routing clerk, ticket taker, and marker conflicts with the
Dictionary of Occupational Titles (“DOT”) since all of these jobs require a reasoning
level of “2,” that is, an ability to understand and carry out “detailed but uninvolved
written or oral instructions.” (Doc. 8, at 10.)
The undersigned finds no inherent conflict between the VE’s testimony and the
DOT provisions cited by plaintiff. See Hurtado v. Commissioner of Social Sec., 425
Fed.Appx. 793, 795-796 (11th Cir. Apr. 25, 2011). Instead, this Court specifically holds
21

that reasoning levels one, two and three, as defined in the DOT, are all “’consistent with
a limitation to simple, unskilled work[,]’” Johnson v. Astrue, 2012 WL 5472418, *13 (E.D.
La. Oct. 5, 2012) (quoting Thacker v. Astrue, 2011 WL 7154218, *4 (W.D. N.C. Nov. 28,
2011), report and recommendation adopted, 2012 WL 380052 (W.D. N.C. Feb. 6, 2012)),
report and recommendation approved, 2012 WL 5472303 (E.D. La. Nov. 9, 2012); see also id.
(“Reasoning Levels 1, 2 and 3 as defined in the Dictionary of Occupational Titles each
‘entail commonsense understanding of instructions and dealing with problems
involving, at most, several variables in or from standardized situations.’” (citation
omitted)), and, therefore, finds no direct conflict between the DOT’s definitions of the
jobs of routing clerk, ticket taker, and marker, each of which require a maximum
reasoning level of two, and the VE’s testimony that a claimant with a limitation to
“short, simple tasks with occasional changes in the work setting introduced
gradually[]” is capable of performing these jobs (see Tr. 80-85). Accordingly, the
plaintiff’s argument in this regard necessarily fails.
In light of the foregoing and because substantial evidence of record supports the
Commissioner’s determination that Wilson can perform the physical and mental
requirements of a reduced range of light work as identified by the ALJ (see Tr. 18;
compare id. with Tr. 57-59, 60-62, 70, 307-309, 362-365, 367-368, 388, 391-396, 399-400 &
415-424), and plaintiff makes no meritorious argument that this residual functional
capacity would preclude his performance of the jobs identified by the VE during the
administrative hearing (compare Doc. 8 with Tr. 82-83), 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
22

burden at step five to show the existence of such jobs . . . [and one] avenue[] by which
the ALJ may determine [that] a claimant has the ability to adjust to other work in the
national economy . . . [is] by the use of a VE[.]”(internal citations omitted)); Land v.
Commissioner of Social Security, 494 Fed.Appx. 47, 50 (11th Cir. Oct. 26, 2012) (“At step
five . . . ‘the burden shifts to the Commissioner to show the existence of other jobs in the
national economy which, given the claimant’s impairments, the claimant can perform.’
The ALJ may rely solely on the testimony of a VE to meet this burden.” (internal
citations omitted)).
CONCLUSION
In light of the foregoing, it is ORDERED that the decision of the Commissioner
of Social Security denying plaintiff benefits be affirmed.
DONE and ORDERED this the 13th day of September, 2016.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

23