Pettaway v. Colvin

Filing 23

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 1/5/2017. (eec)

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

:
:
:

CA 15-0640-C

CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying her
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Doc. 20 (“In accordance with
provisions of 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States magistrate judge conduct any and all proceedings in this case, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”); see
also Doc. 21 (endorsed order of reference).) Upon consideration of the administrative
record, plaintiff’s brief, and the Commissioner’s brief,1 it is determined that the
Commissioner’s decision denying benefits should be affirmed.2
1

At the behest of the Court, given the age of this case, the parties in this matter
waived oral argument.
2

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 21 (“An appeal from a judgment
entered by a magistrate judge shall be taken directly to the United States court of appeals for

(Continued)

Plaintiff alleges disability due to deep venous thrombosis status post vena cava
filter and pulmonary embolectomy, low back pain, edema, depression, esophageal
reflux, morbid obesity, and anemia. The Administrative Law Judge (ALJ) made the
following relevant findings:
1.
The claimant meets the insured status requirements of the Social
Security Act through September 30, 2015.
2.
The claimant has not engaged in substantial gainful activity since
September 3, 2012, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
3.
The claimant has the following severe impairments: deep venous
thrombosis status post vena cava filter and pulmonary embolectomy;
low back pain; edema; depression; esophageal reflux; morbid obesity;
anemia (20 CFR 404.1520(c) and 416.920(c)).
.

.

.

4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
.

.

.

5.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform a reduced range
of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a).
Specifically, the claimant is able to lift and carry 10 pounds, stand and
walk for approximately 2 hours per day, and sit for 6 hours per day with
normal breaks. The claimant should not perform pushing and pulling
of leg or foot controls. The claimant would need to alternate between
sitting and standing at the workstation on an occasional basis. The
claimant should not have to climb, crouch, kneel, crawl, or squat. Due to
some dizziness, the claimant should not drive, operate dangerous
moving machinery, or work at unprotected heights. The claimant
should be limited to simple routine tasks. Due to depressive symptoms,
pain, etc. she could be expected to have deficits in concentration,

this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”))

2

persistence or pace that could cause her to be off task or nonproductive
for about 5 percent of the workday. Additionally, the claimant should
have no interaction with the general public.
In making this finding, I have considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the requirements
of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p. I have also
considered opinion evidence in accordance with the requirements of 20
CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
.

.

.

The claimant alleges that she is disabled and thus unable to work as a
result of acute deep vein thrombosis and heart problems. Additionally, in
a Disability Report filed on appeal, the claimant claimed back pain and the
inability to walk without assistance and the inability to lean back. The
claimant testified that she experiences constant pain. The claimant further
testified that she is depressed.
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to
cause some symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.
In terms of the claimant’s [] DVT status post vena cava filter and
pulmonary embolectomy, the claimant has shown great improvement. In
September 2012, the claimant underwent a median sternotomy, removal
of right ventricle thrombectomy and inferior vena cava filter with a
principal diagnosis of thrombus in the right ventricle, pulmonary
embolism, deep venous thrombosis, and morbid obesity. The claimant’s
discharge following her procedure was held a day because of leg pain and
shortness of breath which resolved. Subsequently, the claimant was again
admitted to USA Medical Center with left lower extremity pain and
swelling. The claimant consented to Coumadin therapy which was started
in the hospital. The claimant followed up with Mobile Cardiovascular
Imaging on October 15, 2012, and it was noted she was doing well
postoperatively. All of her surgical incisions had healed nicely. The
claimant was encouraged to be more active. Her INR was 1.7. The
claimant was given compression stockings to wear. The claimant returned
for periodic follow up appointments where her INR was checked while
taking the Coumadin. On November 26, 2012, it was noted that the
claimant would be going out of town on December 21. On December 17,
2012, the claimant returned for follow up and complained of some pain
and swelling in her legs. A venous Doppler showed evidence of a subacute DVT in the right superficial femoral vein extending from the mid
thigh to the distal thigh. The left CFV and popliteal veins showed no
3

evidence of DVT with good distal augmentation. The claimant was
advised to take her Coumadin and wear the compression stockings when
she traveled. When the claimant returned on January 7, 2013, it was noted
that she continued to have significant swelling in her leg, as well as chest
pain and shortness of breath. On January 24, 2013, the claimant called in
and requested medication for pain and nausea. Dr. Maltese declared the
claimant unable to work over the next six months as she receive[d] her
Coumadin therapy. On February 11, 2013, the claimant returned for
follow up and it was noted that she had recanalized her DVT, not normal
flow yet but it was improving. On March 18, 2013, it was noted that the
claimant had a previous DVT as well as a vena cava filter and a
pulmonary embolectomy. The claimant was observed to be doing very
well and her venous study looked good. It was noted that there had been
good recanalization. The decision was made to stop the Coumadin
therapy. The claimant returned on April 29, 2013, and it was noted she
was having “considerable improvement and getting good recanalizaton.”
The claimant was having leg pain but it was noted to have “definitely
improved.” Dr. O’Gorman noted that he did not feel the claimant was
using her compression stockings as much as they would like for her to use
them. The claimant was off anti-coagulation and just using an Aspirin a
day. She was advised to follow up in six months. The claimant returned
for care on November 4, 2013, and it was noted that she remained off
Coumadin and taking only a Baby Aspirin a day. She had a follow up
venous study which showed no evidence of DVT and represented wall
thickening in the right superficial femoral vein with good distal
augmentation. She was still complaining of some pain and swelling in her
leg along with pain along her sternotomy. It was noted that the claimant
had not been very consistent with her compression stockings. The
claimant was prescribed Lortab and advised to follow up in six months.
In terms of the claimant’s remaining impairments, she has had minimal
and conservative treatment. The claimant has sought periodic treatment at
the Mobile County Health Department, and has been diagnosed with low
back pain, morbid obesity, edema, esophageal reflux, and depression. In
December 2012, the claimant presented to the health department and
complained of low back pain which radiated to her bilateral legs. A
straight leg raising test was positive. An x-ray of the claimant’s lumbar
spine performed in December 2012 reflected that the vertebral body
heights and alignment appear maintained, no fracture or sublaxation. No
acute process was demonstrated. In March 2013, the claimant was
diagnosed with depression. In June 2013, the claimant was diagnosed with
anemia, morbid obesity, and prediabetes. She was prescribed Ferrous
Sulfate. Also in June 2013, the claimant was diagnosed with dysthymic
disorder and prescribed an antidepressant. In August 2013, the claimant
presented at the health department in much better spirits since starting
her anti-depressant, noted to be smiling and laughing. She was diagnosed
with esophageal reflux, morbid obesity, and anemia. The claimant was
prescribed Omeprazole and Victoza. In September 2013, the claimant
presented to the health department and was diagnosed with edema and
4

morbid obesity, with a BMI of 44.3. I have considered the medical
evidence related to obesity in accordance with SSR 02-1P.
As for the claimant’s subjective complaints of physical and mental
impairments, the claimant’s allegations are not fully credible. While the
claimant did have DVT status post vena cava filter and pulmonary
embolectomy, the medical evidence indicates great improvement. The
claimant no longer has to take Coumadin but now just a Baby Aspirin.
Her more recent tests reflected no remaining evidence of DVT. While she
has voiced complaints from time to time of leg pain, she has not been
compliant with the advice that she wear compression stockings. Further,
the claimant has been encouraged to be more active, but she testified that
she does little activity. Regarding the claimant’s remaining physical
impairments, she has received minimal and conservative treatment.
Objective findings regarding the claimant’s back were normal. The
claimant has not sought emergency treatment for her physical or mental
impairments during the period of adjudication. As to the claimant’s
depression, treatment notes reflect that the claimant showed improvement
after being prescribed an antidepressant. She has not sought mental health
treatment from a specialist, nor has she sought mental health counseling.
Moreover, the claimant has traveled to Virginia and Butler on trips to see
family and friends during the period of adjudication. The limitation to a
reduced range of sedentary unskilled work with no contact with the
general public fully accommodates the claimant’s physical and mental
health impairments.
As for the opinion evidence, I give great weight to the opinion of Lisa
Mani, M.D. in finding that the claimant can perform a range of sedentary
work. While I have further limited the claimant in the residual functional
capacity, Dr. Mani’s opinion is generally consistent and is supported by
the medical evidence as a whole.
I have considered the statements of treating physician Dr. Maltese made
during the time of the claimant’s Coumadin treatment, stating in January
2013 that the claimant was “permanently disabled at the present time”
and declared the claimant “unable to work over the next months as she
receives her Coumadin therapy.” While the claimant did undergo
Coumadin therapy for her DVT, the claimant’s symptoms were not
disabling, and further, have notably improved. The limitation to a reduced
range of sedentary work fully accommodates the claimant’s symptoms.
In sum, the above residual functional capacity assessment is supported by
a preponderance of the most credible evidence of record including the
claimant’s resolved DVT, the minimal and conservative treatment of her
physical and mental impairments, and the lack of objective findings as to
the claimant’s impairments.
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
5

.

.

.

7.
The claimant was born on December 19, 1970 and was 41 years
old, which is defined as a younger individual age 18-44, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).
.

.

.

If the claimant had the residual functional capacity to perform the full
range of sedentary work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 201.28. 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 sedentary occupational base, I
asked the vocational expert whether jobs exist in the national economy for
an individual with the claimant’s age, education, work experience, and
residual functional capacity. The vocational expert testified that given all
of these factors the individual would be able to perform the requirements
of representative occupations such as order clerk (DOT Code 209.567-014,
sedentary, unskilled, SVP=2) with approximately 125,330 jobs in the
national economy (after a 50 percent reduction) and approximately
16[],040 jobs in Alabama (after a 50 percent reduction); charge account
clerk (DOT Code 205.367-014, sedentary, unskilled, SVP=2) with
approximately 98,330 jobs in the national economy (after a 50 percent
reduction) and approximately 1,660 jobs in Alabama (after a 50 percent
reduction); and addressing clerk (DOT Code 209.587-010, sedentary,
unskilled, SVP=2) with approximately 96,560 jobs in the national economy
and approximately 550 jobs in Alabama.
While the vocational expert’s testimony is generally consistent with the
information contained in the Dictionary of Occupational Titles, the
vocational expert did note that the Dictionary of Occupational Titles does
not address sit/stand options or reducing numbers by 50 percent. The
6

vocational expert’s testimony regarding the availability of jobs is based
upon her knowledge and experience.
Based on the testimony of the vocational expert, I conclude that,
considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant is capable of making a successful
adjustment to other work that exists in significant numbers in the national
economy. A finding of “not disabled” is therefore appropriate under the
framework of the above-cited rule.
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from September 3, 2012, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. 23, 24, 25-26, 26-28, 28-29 & 29-30 (internal citations & footnote 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
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)3
(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 she is unable to perform her previous work.
Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether the claimant has
met this burden, the examiner must consider the following four factors: (1) objective
3

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

7

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 her past relevant
work, the [Commissioner of Social Security] has an obligation to develop a full and fair
record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). If a
plaintiff proves that she cannot do her past relevant work, as here, it then becomes the
Commissioner’s burden—at the fifth step—to prove that the plaintiff is capable—given
her age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy. Phillips, supra, 357 F.3d at 1237;
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct.
1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform those sedentary
jobs identified by the vocational expert, is supported by substantial evidence.
Substantial evidence is defined as more than a scintilla and means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining
whether substantial evidence exists, we must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the Commissioner’s] decision.”
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).4 Courts are precluded, however,
from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.
Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d
4

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

8

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, Pettaway asserts two reasons why the Commissioner’s
decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1)
the ALJ erred in relying upon a non-examining physician’s opinion to support the RFC
determination while assigning little weight to the opinion of plaintiff’s treating
physician in violation of Dillard v. Astrue, 834 F.Supp.2d 1325 (S.D. Ala. 2011); and (2)
the ALJ committed reversible error, in violation of 20 C.F.R. § 416.927(d) and SSR 96-2,
by failing to assign controlling weight to the opinion of the plaintiff’s treating physician
and, instead, relying on the opinion of a non-examining physician. Given the close
affinity between these two issues, they are considered together. At bottom, it is
plaintiff’s position that the ALJ erred in affording great weight to the opinion of nonexaminer Dr. Mani regarding plaintiff’s RFC and in affording little weight to the
opinion of the treating physician.
In this case, on January 7, 2013, plaintiff’s treating thoracic/cardiovascular
surgeon, Dr. Carl Maltese, opined that Pettaway “should be classified as permanently
disabled at the present time.” (Tr. 285 (emphasis supplied).) Treatment notes from Dr.
Maltese’s office, generated on January 24, 2013, give more “definition” to the treating
physician’s opinion in making clear that plaintiff would be “unable to work over the
next six months as she receives her Coumadin therapy for her DVT.” (Id.) As it turned
out, Pettaway’s Coumadin therapy was ended by one of Dr. Maltese’s partners, Dr.
Ronald O’Gorman, prior to the conclusion of six months, on March 18, 2013 (Tr. 283
(“She is doing very well. Her venous study looks good. There has been good
9

recanalization. I think at this point it is probably okay to go ahead and stop her
Coumadin.”)), and was never restarted (compare Tr. 281 with Tr. 278). Indeed, Dr.
O’Gorman noted on April 29, 2013, that plaintiff was considerably improved and
though she still had some leg pain that pain had “definitely improved[]” and she was
not using her compression stockings as much as his office would like. (Tr. 281.)
Moreover, on November 4, 2013, Dr. Maltese’s office notes reveal that plaintiff’s followup venous study showed no evidence of DVT and though she still complained of some
pain and swelling in the leg it was clear she was not wearing her compression stockings
consistently. (Tr. 278.)
On February 25, 2013, Dr. Lisa Mani, a non-examining, reviewing physician,
specifically noted that “[t]he less-than-sedentary RFC 4734 rating dated 11/28/2012 is
affirmed as written . . . based on a review of records before and after this date.” (Tr.
257.) The rating dated November 28, 2012, indicated plaintiff could lift and carry up to
10 pounds occasionally and less than 10 pounds frequently; stand and/or walk for a
total of 2 hours in an 8-hour workday; sit for about 6 hours total during an 8-hour
workday; had an unlimited ability to push and/or pull using hand and/or foot
controls, except as shown with respect to lifting and carrying; and had an unlimited
ability to climb ramps and stairs, balance, stoop, kneel, crouch and crawl. (Compare id.
with Tr. 64-65.) Dr. Mani noted that her RFC rating was “applicable” to September 3,
2013, “with the conditions addressed or rated not anticipated to last in their present
state of severity for twelve months.” (Tr. 257.)
The law in this Circuit is clear that an ALJ “’must specify what weight is given to
a treating physician’s opinion and any reason for giving it no weight, and failure to do
so is reversible error.’” Nyberg v. Commissioner of Social Security, 179 Fed.Appx. 589, 590591 (11th Cir. May 2, 2006) (unpublished), quoting MacGregor v. Bowen, 786 F.2d 1050,
10

1053 (11th Cir. 1986) (other citations omitted). In other words, “the ALJ must give the
opinion of the treating physician ‘substantial or considerable weight unless “good
cause” is shown to the contrary.’” Williams v. Astrue, 2014 WL 185258, *6 (N.D. Ala. Jan.
15, 2014), quoting Phillips, supra, 357 F.3d at 1240 (other citation omitted); see Nyberg,
supra, 179 Fed.Appx. at 591 (citing to same language from Crawford v. Commissioner of
Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)).
Good cause is shown when the: “(1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004). Where the ALJ articulate[s] specific reasons for failing to
give the opinion of a treating physician controlling weight, and those
reasons are supported by substantial evidence, there is no reversible error.
Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert v. Commissioner of Social Sec., 396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010)
(per curiam).
In this case, the ALJ clearly accorded little weight the statements of Dr. Maltese
noted above: “While the claimant did undergo Coumadin therapy for her DVT, the
claimant’s symptoms were not disabling, and further, have notably improved. The
limitation to a reduced range of sedentary work fully accommodates the claimant’s
symptoms.” (Tr. 28.) And while it is true that the ALJ accorded great weight to the RFC
determination of non-examiner Dr. Mani, finding it generally consistent with and
supported by the medical evidence as a whole, she also noted that her RFC
determination “further limited the claimant[.]” (Id.) Indeed, the ALJ’s latter statement is
true inasmuch as the ALJ found, contrary to Dr. Mani, that Pettaway should not
perform pushing and pulling of leg or foot controls; should never climb, crouch, kneel,
crawl or squat; and would need a sedentary job allowing a sit/stand option. (Compare
Tr. 25 with Tr. 257 & 64-65.)
11

The undersigned turns first to plaintiff’s argument that the ALJ erred in relying
upon a non-examining physician’s opinion to support her RFC determination while
assigning little weight to the opinion of plaintiff’s treating physician in violation of
Dillard v. Astrue, 834 F.Supp.2d 1325 (S.D. Ala. 2011). There can be little question but
that this Court, in Dillard, supra, held that “the Commissioner’s fifth-step burden cannot
be met by a lack of evidence or, where available, by the residual functional capacity
assessment of a non-examining, reviewing physician; instead, this fifth-step burden
must be supported by the residual functional capacity [] assessment of a treating or
examining physician.” 834 F.Supp.2d at 1332 (citation and footnote omitted). The
undersigned, however, finds the plaintiff’s reliance on Dillard misguided. Initially, the
Court notes that Dr. Maltese offered no assessment of plaintiff’s RFC but simply
conclusorily stated that she was disabled for the “present time[,]” and later offered
some “definition” to the disability opinion by indicating that plaintiff would be unable
to work while undergoing Coumadin therapy, a treatment regimen which ended only a
few months after the disability opinion was rendered. Notwithstanding that the ALJ
had no obligation to accord great weight to Dr. Maltese’s statements since they relate to
a dispositive issue reserved to the Commissioner, compare Kelly v. Commissioner of Social
Security, 401 Fed.Appx. 403, 407 (11th Cir. Oct. 21, 2010) (“A doctor’s opinion on a
dispositive issue reserved for the Commissioner, such as whether the claimant is
‘disabled’ or ‘unable to work,’ is not considered a medical opinion and is not given any
special significance, even if offered by a treating source[.]”) with Lanier v. Commissioner
of Social Security, 252 Fed.Appx. 311, 314 (11th Cir. Oct. 26, 2007) (“The ALJ correctly
noted that the opinion that Lanier was unable to work was reserved to the
Commissioner.”), as specifically indicated by the ALJ Pettaway’s condition improved to
the point that her symptoms were not disabling. Indeed, by March 18, 2013, plaintiff’s
12

Coumadin therapy was completed and her venous studies were good (Tr. 283),
approximately six months after her deep venous thrombosis problems began on
September 10, 2012 (see Tr. 204). Thus, even giving consideration to Dr. Maltese’s
conclusory non-medical disability opinions on January 7 & 24, 2013, since those
opinions were “temporary” and do not otherwise constitute the treating physician’s
RFC determination,5 this Court has no basis to find that the ALJ in any manner violated
Dillard under the specific facts of this case. More importantly, plaintiff’s Dillard
argument is misguided because, as this Court has held on numerous occasions, “[i]n
order to find that the ALJ’s RFC assessment is 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.” Jones v. Colvin, 2015 WL 5737156, *24 (S.D. Ala. Sept.
30, 2015) (collecting cases). Here, as previously indicated, the responsibility for making
the residual functional capacity determination rests with the ALJ, see, e.g., 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.”), and the ALJ’s RFC assessment in this case for less than the full range of
sedentary work is supported by substantial evidence in the record, including not only
Dr. Mani’s RFC assessment (see Tr. 257)6 but, as well, the treatment notes of Drs. Maltese
and O’Gorman and all evidence related to plaintiff’s DVT (see Tr. 204-234, 238-251 &
5

That Dr. Maltese’s opinions were not meant to be “permanent” in nature is clear
based upon earlier records from mid-October 2012 that “encouraged” Pettaway to “be more
active[]” and to “begin lifting [] greater than 15 pounds.” (Tr. 287.)
6

The undersigned agrees with the ALJ that Dr. Mani’s “general” RFC opinion for
a reduced range of sedentary work is consistent with and supported by the medical evidence of
record (Tr. 28); however, as the ALJ made clear, she added further (and significant) limitations
to Dr. Mani’s RFC determination (id.). Thus, the ALJ’s RFC determination (Tr. 25) is truly her
own and not a mere parroting of Dr. Mani’s RFC findings.

13

263-293) and all other relevant medical evidence in the record (see Tr. 315-342 & 344).
Thus, no error was committed by the ALJ in this regard.
In addition, to the extent any further comment is necessary, this Court
specifically finds that the ALJ in this case did not err in failing to assign controlling
weight to Dr. Maltese’s January 2013 statements because, as aforesaid, those statements
relate to a dispositive issue reserved to the Commissioner, see Kelly, supra, 401
Fed.Appx. at 407(“A doctor’s opinion on a dispositive issue reserved for the
Commissioner, such as whether the claimant is ‘disabled’ or ‘unable to work,’ is not
considered a medical opinion and is not given any special significance, even if offered
by a treating source[.]”). Moreover, Dr. Maltese’s statements were decidedly
“temporary” and because Pettaway’s condition significantly improved and “removed”
the “but for” causes of her temporary disability (that is, her operation(s) and the followup Coumadin therapy) in a little over six months, there was simply no opinion from
Dr. Maltese “left” for which the ALJ was required to afford considerable weight. And
because, as aforesaid, the evidence of record in this case supports the ALJ’s RFC
determination for a reduced range of sedentary work, the ALJ committed no error in
according great weight to the “general” RFC finding of Dr. Mani that plaintiff was
capable of performing a range of sedentary work.
In light of the foregoing, and because the plaintiff makes no argument that the
ALJ failed to identify other work existing in significant numbers in the national
economy that the claimant is capable of performing based upon the aforementioned
RFC assessment, the Commissioner’s fifth-step determination is due to be affirmed. See,
e.g., Owens v. Commissioner of Social Sec., 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
14

experience. The Commissioner bears the burden at step five to show the existence of
such jobs . . . [and one] avenue[] by which the ALJ may determine [that] a claimant has
the ability to adjust to other work in the national economy . . . [is] by the use of a
VE[.]”(internal citations omitted)); Land v. Commissioner of Social Sec., 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 5th day of January, 2017.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

15