Shepherd v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER entered that the Commissioner's final decision issued February 2, 2016, denying Shepherd's applications for PoD and DIB is AFFIRMED under 42 U.S.C. § 405(g) and 191383(c)(3). Signed by Magistrate Judge William E. Cassady on 7/7/2017. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MELBORNE R. SHEPHERD,
Plaintiff,

:
:

vs.

:

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1

:
:
:

Defendant.

CA 16-00117-C

:
MEMORANDUM OPINION AND ORDER

Social Security Claimant/Plaintiff Melborne R. Shepherd 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 his applications for a period of disability (“PoD”) and disability
insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §
401, et seq. 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. 21 (“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, including the trial, order the entry
of a final judgment, and conduct all post-judgment proceedings.”)).
Upon consideration of the briefs of the parties, (Docs. 9 & 15), and the
administrative record, (Doc. 8), (hereinafter cited as “(R. [page number(s) in

1 Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Pursuant to Rule 25(d), FED. R. CIV. P., Berryhill is substituted for Carolyn W.
Colvin as the proper defendant in this case.

lower-right corner of transcript])”), it is determined that the Commissioner’s
decision is due to be AFFIRMED.
I.

Background

Shepherd was born on June 15, 1954. (R. 169 [SSA Ex. 1E]). The highest
grade of school Shepherd attained was twelfth grade. (R. 174 [SSA Ex. 2E]).
Shepherd worked as a pumper from 1977 to 1999, handyman and farm operator
from 2000 to 2002, bander operator from 2003 to 2005, and facilities maintenance
supervisor from 2006 to 2010. (R. 181 [SSA Ex. 4E]).
Shepherd filed applications for a PoD and DIB with the Social Security
Administration (the “SSA”),2 alleging disability beginning October 15, 20103. (R.
19). After Shepherd’s claim was denied, he requested a hearing, which was held
before an Administrative Law Judge (“ALJ”) for the SSA on April 16, 2014. (R.
19). On August 25, 2014, the ALJ issued an unfavorable decision on Shepherd’s
claim, finding him “not disabled” under sections 216(i) and 223(d) of the Social
Security Act. (R. 16-28).
Shepherd requested review of the ALJ’s decision by the Appeals Council
for the SSA’s Office of Disability Adjudication and Review.

(R. 7-8).

The

Appeals Council denied Shepherd’s request for review on February 2, 2016,
which made the ALJ’s the final decision of the Commissioner. (R. 1-6). On

2 “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.” Sanders v. Astrue, No 11-049-N, 2012 WL 4497733, at *3 (S.D. Ala. Sept. 28, 2012).
3 “For DIB claims, a claimant is eligible for benefits where she demonstrates disability
on or before the last date for which she [was] insured. 42 U.S.C. § 423(a)(1)(A) (2005).”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).

2

March 17, 2016, Shepherd filed this action pursuant to § 405(g)4 and § 1382(c)(3)5
to review the final decision of the Commissioner. (Doc. 1).
II.

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)
(citations and internal quotations omitted). The Court “may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner].” Id. (citations omitted). “Even if the evidence preponderates
against the Commissioner’s findings, [the Court] must affirm if the decision
reached is supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990) (citing Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986);
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); and Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

“Yet, within this narrowly

circumscribed role, [the Court does] not ‘act as automatons.’” Bloodsworth, 703
F.2d 1233, 1239 (11th Cir. 1983) (citing Ware v. Schweiker, 651 F.2d 408, 411 (5th
Cir. 1981), cert. denied, 455 U.S. 912, 102 S. Ct. 1263, 71 L. Ed. 2d 452 (1982)). The
Court “must scrutinize the record as a whole, [Ware, 651 F.2d at 411]; Lewis v.
Weinberger, 515 F.2d 584, 586-87 (5th Cir. 1975), to determine if the decision

4 “Any individual, after any final decision of the Commissioner . . . 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 . . . may
allow.” 42 U.S.C. § 405(g).

3

reached is reasonable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), and
supported by substantial evidence, Scharlow v. Schweiker, 655 F.2d 645, 648 (5th
Cir. 1981).” Bloodsworth, 703 F.2d at 1239.
“In contrast to the deferential review accorded to the [Commissioner’s]
findings of fact, the [Commissioner’s] conclusions of law, including applicable
review standards are not presumed valid.”

Martin, 894 F.2d at 1529 (citing

MacGregor, 786 F.2d at 1053; Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983),
Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982); Smith v. Schweiker, 646
F.2d 1075, 1076 (5th Cir. Unit A June 1981). “The [Commissioner’s] failure to
apply the correct legal standard or to provide the reviewing court with sufficient
basis for a determination that proper legal principles have been followed
mandates reversal.” Martin, 894 F.2d at 1529 (citing Gibson v. Heckler, 779 F.2d
619, 622 (11th Cir. 1986); Bowel v. Heckler, 748 F.2d 629, 635-36 (11th Cir. 1984);
Smith, 707 F.2d at 1285; Wiggins, 679 F.2d at 1389; Ambers v. Heckler, 736 F.2d 1467,
1470 (11th Cir. 1984)).
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 experience.
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips v. Barnhart, 357 F.3d 1232, at 1237-39 (11th Cir. 2004)).
III.

Claims on Judicial Review

4

1.

“The [ALJ] committed reversible error by giving ‘significant

weight’ to the opinion of a non-acceptable non-medical source in determining
[Shepherd’s RFC] and by disregarding the opinions of [Shepherd’s] treating
physician.” (Doc. 9, at 2).
IV.

Analysis

“At the first step, the ALJ must consider the claimant’s current working
situation. If the claimant is ‘doing substantial gainful activity, [the ALJ] will find
that [the claimant is] not disabled.’” Phillips, 357 F.3d at 1237 (alterations in
original) (quoting 20 C.F.R. § 404.1520(a)(4)(i) & (b). “If however, the claimant is
not currently ‘doing gainful activity’ then the ALJ moves on to the second step.”
Phillips, 357 F.3d at 1237. At the first step, the ALJ determined that Shepherd had
“not engaged in substantial gainful activity since October 15, 2010, the alleged
onset date.” (R. 21).
At the second step, the ALJ is to “consider the medical
severity of [the claimant’s] impairment(s).”
20 C.F.R. §
404.1520(a)(4)(ii). When considering the severity of the claimant’s
medical impairments, the ALJ must determine whether the
impairments, alone or in combination, “significantly limit” the
claimant’s “physical or mental ability to do basic work skills.” 20
C.F.R. § 404.1520(c). If the ALJ concludes that none of the
claimant’s impairments are medically severe, the ALJ is to conclude
that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(ii) & (c).
If, however, the ALJ concludes that the claimant’s impairments are
medically severe, then the ALJ moves on to the third step.
Phillips, 357 F.3d at 1237 (alterations in original).

At Step Two, the ALJ

determined that Shepherd had the following severe impairments:

“diabetes

mellitus, coronary artery disease, and degenerative disc disease.” (R. 21).
At the third step, the ALJ again considers the “medical
severity of [the claimant’s] impairment(s)” in order to determine
whether the claimant’s impairment(s) “meets or equals” one of the
listed disabilities. 20 C.F.R. § 404.1520(a)(4)(iii). Although the list is
too voluminous to recite here, the idea is that the listings
5

“streamline[ ] the decision process by identifying those claimants
whose medical impairments are so severe that it is likely they
would be found disabled regardless of their vocational
background.” Bowen v. Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287,
2297, 96 L. Ed. 2d 119 (1987). If the ALJ concludes that the
claimant’s impairments meet or equal one of the listed disabilities
and meet the duration requirement, the ALJ will conclude that the
claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii) & (d). If,
however, the ALJ concludes that the claimant’s impairments do not
meet or equal the listed impairments, then the ALJ will move on to
step four.
Phillips, 257 F.3d at 1238 (alterations in original). At Step Three, the ALJ found
that Shepherd “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments” in 20
C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. (R. 21).
At the fourth step, the ALJ must assess: (1) the claimant's
[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 RFC] 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 (alterations in original) (footnote omitted). At the

6

fourth step, the ALJ assessed that Shepherd had the RFC “to perform the full
range of medium work,” (R. 22), and “is capable of performing past relevant
work as maintenance supervisor [ ], a bander operator [ ], a handyman [ ], and a
pumper [ ],” (R. 24). Therefore, the ALJ concluded Shepherd “has not been
under a disability, as defined in the Social Security Act, from October 15, 2010,
through the date of [the ALJ’s] decision.” (R. 24).
A.

Claim 1

A claimant’s “RFC is an assessment of a claimant’s remaining ability to do
work despite his impairments.” Siverio v. Comm’r of Soc. Sec., 461 F. App’x 869,
870-71 (11th Cir. 2012) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997); see also SSR 96-8p, 1996 WL 374184, at *2 (“RFC is an administrative
assessment of the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may cause
physical or mental limitations or restrictions that may affect his or her capacity to
do work-related physical and mental activities.”).

“RFC is the individual’s

maximum remaining ability to do sustained work activities in an ordinary work
setting on a regular and continuing basis . . . . RFC does not represent the least
an individual can do despite his or her limitations or restrictions, but the most.”
SSR 96-8p, 1996 WL 374184, at *2 (emphasis in original) (internal footnote and
footnote omitted). An ALJ makes an RFC finding based on “all of the relevant
medical and other evidence.” 20 C.F.R. § 404.1545.
Evidence considered by the Commissioner in making a disability
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
7

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)).

“In 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 specialization.

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. 2014) (per curiam) (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)
(unpublished). However, 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
8

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.
The ALJ assigned “significant weight to the State agency physician who
provided a[n RFC] assessment and concluded that [Shepherd] is capable of a full
range of medium level work.” (R. 23). The ALJ continued:
Although this physician was non-examining, and therefore this
opinion does not as a general matter deserve as much weight as
those of examining or treating physicians, this opinion does
deserve some weight, particularly in a case like this in which there
exist a number of other reasons to reach similar conclusions (as
explained throughout this decision).
(R. 23-24).

However, the “State agency physician” referenced in the ALJ’s

decision was, in fact, a single decisionmaker (“SDM”), (R. 79 [SSA Ex. 1A]).
“[T]he ‘SDM’ designation connotes no medical credentials.” Siverio v. Comm’r of
Soc. Sec., 461 F. App’x 869, 871 (11th Cir. 2012) (citing 20 C.F.R. § 404.906(a),
(b)(2)).

“Indeed, the SSA’s Program Operations Manuals Systems (‘POMS’)

explicitly distinguishes RFC assessments produced by an SDM from those
produced by a medical consultant, and states that ‘SDM-completed forms are not
opinion evidence at the appeals level.’” Siverio, 461 F. App’x at 871 (citing POMS

9

§

DI

24510.050,

available

at

https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510050).
Shepherd argues the ALJ committed reversible error by giving significant
weight to the opinion of a non-acceptable, non-medical source in determining
Shepherd’s RFC and by disregarding the opinions of Shepherd’s treating
physician.

(Doc. 9, at 2).

However, the Eleventh Circuit Court of Appeals

(“Eleventh Circuit”), in Cooper v. Commissioner of Social Security, 521 F. App’x 803
(11th Cir. 2013) (per curiam), found harmless an ALJ’s reference to an SDM as a
doctor and the assignment of weight to the SDM’s opinion because the ALJ
stated he considered all of the evidence in the record in making his RFC findings.
Id. at 807; compare id. with Siverio v. Comm’r of Soc. Sec., 461 F. App’x 869, 872 (11th
Cir. 2012) (“The ALJ mistakenly treated [an SDM’s] opinion that Siverio could
perform medium work as the ‘expert opinion’ of a ‘DDS physician,’ ‘State
Agency physician,’ and ‘DDS medical consultant.’ This was not a harmless error.
The ALJ’s opinion shows not only that the ALJ labored under the mistaken belief
that [the SDM’s] RFC assessment had been authored by a physician, but also that
he gave [the SDM’s] RFC assessment ‘significant weight.’ The remaining record
evidence does not provide substantial evidence for the finding that Siverio was
capable of performing medium work.”).
Therefore, the ALJ’s reference to the SDM as a doctor and assignment of
weight to the SDM’s opinion would be harmless error if the record provides
substantial evidence for the finding Shepherd was capable of performing a full
range of medium level work.

Siverio, 461 F. App’x at 872.

When the ALJ

addressed the weight assigned to the SDM’s opinion evidence, he stated, “. . .
there exist a number of other reasons to reach similar conclusions (as explained
10

throughout this decision).” (R. 24).
Michael C. Madden, M.D., Ph. D., performed a physical examination of
Shepherd on January 2, 2013, at which Dr. Madden measured the range of
motion of Shepherd’s cervical spine, dorsolumbar spine, hip, knee, ankle,
shoulder, elbow and forearm, and wrist. (R. 239-40 [SSA Ex. 3F]). Dr. Madden’s
measurements were normal for all areas except a measurement of Shepherd’s
dorsolumbar spine extension that was five degrees less than normal. (R. 239
[SSA Ex. 3F]). From Dr. Madden’s physical examination of Shepherd, he found
Shepherd’s heart rate and rhythm were regular and he did not have murmurs;
his lumbar area was mildly tender; straight leg raises from a sitting position were
negative, bilaterally; he had normal patellar reflexes; he did not use an assistive
device to walk; he did not have diabetic complications; his cranial nerves II-XII
were grossly intact; he had a five out of five (5/5) grip strength, bilaterally; he
had normal dexterity, bilaterally; he had a normal gait; he was able to walk on
his heels; and he was able to walk on his toes; he was able to squat and rise. (R.
242 [SSA Ex. 3F]). Dr. Madden found that an x-ray of Shepherd’s lumbosacral
spine revealed there were not fractures or dislocations, his vertebral body heights
and disc spaces were well maintained, and an endplate osteophyte formation
was noted at vertebral body L1 and L2. (R. 243 [SSA Ex. 3F]). Dr. Madden’s
impression of Shepherd was he had lumbar back pain, type 2 diabetes, and
coronary artery disease. (R. 242 [SSA Ex. 3F]). Dr. Madden opined Shepherd’s
ability to do work-related activities such as sitting, standing, walking, lifting,
carrying, handling objects, hearing, speaking, and traveling appeared to be
adequate for normal duty. (R. 242 [SSA Ex. 3F]). The ALJ assigned Dr. Madden’s
opinion “great weight.” (R. 23).
11

In May 2014, Dr. Ritesh Gupta performed a disability examination of
Shepherd, which required Dr. Gupta to give his opinion of Shepherd’s ability to
do, on a regular and continuous basis, work-related activities that included
lifting/carrying, sitting/standing/walking, use of hands, use of feet, and
postural activities as well give his opinion as to Shepherd’s environmental
limitations. (R. 265-70 [SSA Ex. 7F]). Dr. Gupta opined Shepherd could lift and
carry up to ten (10) pounds, frequently6; lift eleven (11) to twenty (20) pounds
and twenty-one (21) to fifty (50) pounds, occasionally7; and never lift fifty-one
(51) to one hundred (100) pounds. (R. 265 [SSA Ex. 7F]). At one time without
interruption Shepherd could sit six (6) hours and stand and walk one (1) hour;
and in an eight (8) hour work day, Shepherd could sit six (6) hours and stand and
walk one (1) hour. (R. 266 [SSA Ex. 7F]). Shepherd, with his right and left hands,
could reach overhead, frequently; generally reach, occasionally; handle,
occasionally; finger, occasionally; feel, occasionally; and push/pull, occasionally.
(R. 267 [SSA Ex. 7F]). With Shepherd’s right and left feet, he could operate foot
controls, frequently. (R. 267 [SSA Ex. 7F]). Shepherd could frequently climb
stairs and ramps, and climb ladders or scaffolds; but could never balance, stoop,
kneel, crouch, or crawl.

(R. 268 [SSA Ex. 7F]).

Dr. Gupta indicated his

assessment of Shepherd, and any limitations reflected in the assessment, was
supported by a clinical finding of back pain. (R. 268 [SSA Ex. 7F]). As to
Shepherd’s environmental limitations, Dr. Gupta opined Shepherd could

6 “Frequently” is defined “from one-third of the time to two-thirds of the time” with
time defined as “8 hours a day, for 5 days a week, or an equivalent work schedule.” (R.
265).
7 “Occasionally” is defined “very little to one-third of the time” with time defined as “8
hours a day, for 5 days a week, or an equivalent work schedule.” (R. 265).

12

occasionally be exposed to moving mechanical parts; operating a motor vehicle;
humidity and wetness; and dust odors, fumes, and pulmonary irritants.
Shepherd could never be exposed to unprotected heights, extreme cold, extreme
heat, and vibrations.

(R. 269 [SSA Ex. 7F]).

Based on Shepherd’s physical

impairments, Dr. Gupta opined Shepherd could perform activities like shopping;
travel without a companion for assistance; ambulate without use an assistive
device; walk a black at a reasonable pace on rough or uneven surface; use
standard public transportation; climb a few steps at a reasonable pace without
the use of a single hand rail; prepare a simple meal and feed himself; care for his
personal hygiene; and sort handle, or use paper/files. (R. 270 [SSA Ex. 7F]). The
ALJ assigned Dr. Gupta’s opinion “significant weight.” (R. 23).
At Shepherd’s hearing before the ALJ, the vocational expert (“VE”) stated,
based on Dr. Gupta’s limitations that he noted from Shepherd’s disability
examination, Shepherd would be “limited to less than a range of sedentary work
and could not perform past work” and “there would be no work available [for
Shepherd].”

(R. 66).

However, in the ALJ’s decision, he found Shepherd’s

“activities of daily living and lack of medical care suggest that he can perform a
limited range of medium exertional work.” (R. 23).
As to activities of daily living, Shepherd testified he cuts, weekly, his lawn
that covers an estimated quarter of an acre, (R. 45; R. 191 [SSA Ex. 5E]); weed-eats
his lawn, (R. 60); trims limbs, (R. 60); watches television, (R. 48); retrieves the
paper, three times a week, (R. 48); drives himself, approximately once a week, to
visit his mother, who lives approximately thirty (30) miles from his residence, (R.
48 & 52); performs light household work for his mother, (R. 53); occasionally
performs household repairs at his home, (R. 191 [SSA Ex. 5E]); washes dishes, (R.
13

51); occasionally washes clothes, (R. 51); attends church twice a week, on Sunday
morning and afternoon, (R. 57-58; R. 193 [SSA Ex. 5E]); feeds squirrels in his back
yard, (R. 60); and occasionally prepares food or meals, (R. 191 [SSA Ex. 5E]).
Additionally, Shepherd indicated he walks as a means of travel8, (R. 192 [SSA Ex.
5E]), and occasionally shops in stores, (R. 192 [SSA Ex. 5E]). Finally, Shepherd
indicated he is always able to pay attention, (R. 194 [SSA Ex. 5E]); is excellent at
following spoken instructions, (R. 194 [SSA Ex. 5E]); gets along well with
authority figures, (R. 195 [SSA Ex. 5E]); has never been fired or laid off from a job
because of problems getting along with others, (R. 195 [SSA Ex. 5E]); handles
stress, well, (R. 195 [SSA Ex. 5E]); and handles changes in routine, well, (R. 195
[SSA Ex. 5E]).
As to a lack of medical care, Shepherd testified he does not have health
insurance, (R. 46); he visits his doctor, F. Martin Lester, M.D., annually, (R. 47);
and he refused insulin to treat his diabetes because he could not afford it, but did
take Glucovance, (R. 50). Dr. Lester’s treatment of Shepherd was limited to
medication management. (R. 220-21 [SSA Ex. 1F]; R. 244 [SSA Ex. 4F]; R. 273
[SSA Ex. 8F]). Accordingly, the Court finds the ALJ’s reference to the SDM as a
doctor and assignment of weight to the SDM’s opinion is harmless error since the
record provides substantial evidence for the finding Shepherd was capable of
performing a full range of medium level work.
Shepherd’s second, implied, argument included in Claim 1 is the ALJ
committed reversible error by disregarding the opinions of Shepherd’s treating
physician, (Doc. 9, at 2), which the Court rejects. “A ‘treating source’ (i.e., a
8 Shepherd indicated he can walk fifty (50) yard before he needs to stop and rest and
requires fifteen (15) minutes before he can resume walking. (R. 194 [SSA Ex. 5E]).

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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. 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
brief hospitalizations.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). “Good cause
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)).
On May 1, 2013, Dr. Lester completed a “Clinical Assessment of Fatigue”
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form in regard to Shepherd. (R. 261 [SSA Ex. 5F]). In the form, Dr. Lester opined
Shepherd’s “[f]atigue is present to such an extent as to be distracting to adequate
performance of daily activities or work” and physical activity such as walking or
standing “[g]realty increased [Shepherd’s] fatigue to such a degree as to cause
distraction from tasks or total abandonment of tasks.” (R. 261 [SSA Ex. 5F]).
Further, Dr. Lester opined Shepherd could not engage in any form of gainful
employment on a repetitive, competitive, and product basis over an eight hour
work day, forty hours a week, without missing more than two (2) days of work
per month or frequent interruptions to his work routine due to his condition and
symptoms of his disease. (R. 261 [SSA Ex. 5F]). The ALJ assigned “minimal
weight” to Dr. Lester’s opinions stated in the form, and he stated he was not
required to assign controlling weight to a treating physician’s opinions when
they are not supported by medically acceptable clinical and laboratory diagnostic
techniques, or they are inconsistent with other substantial evidence in the case
record. (R. 23).
At Shepherd’s April 4, 2012, annual exam, Dr. Lester assessed Shepherd
had ischemic heart disease, hyperlipidemia, and diabetes, and he noted
Shepherd was stable and having no angina. (R. 219 [SSA Ex. 1F]). From a
treadmill stress test, Dr. Lester concluded Shepherd had adequate coronary
stress, his exercise capacity for his age was excellent, he was clinically negative
for ischemia, and electrocardiographically equivocal for ischemia. (R. 220 [SSA
Ex. 1F]).
At Shepherd’s April 15, 2013, annual exam, Dr. Lester ordered certain tests
to be performed on Shepherd. (R. 260 [SSA Ex. 4F]). Diagnostic testing showed
Shepherd’s glucose, albumin, cholesterol, triglycerides, LDL, hemoglobin A1c,
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and MCH were high, (R. 250, 253, & 255 [SSA Ex. 4F]); and his hematocrit was
low, (R. 253 [SSA Ex. 4F]).

A treadmill stress test yielded the same results

obtained from 2012 except it was noted Shepherd’s stress induced blood pressure
was normotensive.

(R. 245 [SSA Ex. 4F]).

A lumbar spine x-ray showed

degenerative changes, and a chest x-ray showed no acute chest disease. (R. 25859 [SSA Ex. 4F]). At Shepherd’s April 25, 2013, return visit, Dr. Lester assessed
Shepherd’s sugar was not good, increased his Glucovance dosage and diabetes
medicine, and recommended he continue his regimen for heart and back
problems. (R. 244 [SSA Ex. 4F]).
At Shepherd’s May 2, 2014, annual exam, Dr. Lester noted “[Shepherd]
has medication and he is really doing well with complication of the medicine
with postural hypotension” and “[h]e has no angina at all and he feels good.” (R.
273 [SSA Ex. 8F]). However, Dr. Lester noted Shepherd’s diabetes likely was not
under control, despite taking Glucovance three times a day, because he “eats[,]
basically[,] what he wants.”

(R. 273 [SSA Ex. 8F]).

Dr. Lester concluded

Shepherd “really [was] doing well considering all of his other problems he had
before.” (R. 273 [SSA Ex. 8F]). Diagnostic tests showed Shepherd’s glucose,
BUN, cholesterol, triglycerides, and hemoglobin A1c levels were high; and his
sodium, anion gap, and HDL levels were low. (R. 274 [SSA Ex. 8F]).
In sum, Dr. Lester’s opinions stated in a “Clinical Assessment of Fatigue”
form are not supported by his treatment history of Shepherd, which, as stated by
the ALJ, was confined to an annual visit, (see R. 217-33 [SSA Ex. 1F] (Shepherd’s
treatment records from Dr. Lester of April 30, 2010, and April 4, 2012, visits); R.
244-60 [SSA Ex. 4F] (Shepherd’s treatment records from Dr. Lester of April 15,
2013, visit and 25, 2013, follow-up visit); R. 273-79 [SSA Ex. 8F] (Shepherd’s
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treatment records from Dr. Lester of May 2, 2014, visit)); confined to medication
management, (R. 220-21 [SSA Ex. 1F]; R. 244 [SSA Ex. 4F]; R. 273 [SSA Ex. 8F]);
did not include testing to evaluate his back issues, (see R. 217-33 [SSA Ex. 1F]; R.
244-60 [SSA Ex. 4F]; R. 273-79 [SSA Ex. 8F]); and did not include treatment for his
heart condition (see R. 217-33 [SSA Ex. 1F]; R. 244-60 [SSA Ex. 4F]; R. 273-79 [SSA
Ex. 8F]). Further, as stated by the ALJ, Dr. Lester’s opinions were inconsistent
with Shepherd’s activities of daily living, (see R. 45, 48, 51-53, 57-58, & 60; R. 19195 [SSA Ex. 5E]; supra, pages 13-14), and inconsistent with the other substantial
evidence in the case record, (see R. 238-43 [SSA Ex. 6F]; supra, pages 10-11).
Accordingly, the Court finds good cause for the ALJ’s decision to assign minimal
weight to the opinion of Shepherd’s treating physician, Dr. Lester, set forth in a
“Clinical Assessment of Fatigue” form, (R. 261 [SSA Ex. 5F]).
Therefore, the Court finds the ALJ’s reference to the SDM as a doctor and
assignment of weight to the SDM’s opinion, (R. 23), is harmless error since the
record provides substantial evidence for the finding Shepherd was capable of
performing a full range of medium level work; the Court finds good cause for the
ALJ’s decision to assign minimal weight to the opinion of Shepherd’s treating
physician, Dr. Lester, set forth in a “Clinical Assessment of Fatigue” form, (R. 261
[SSA Ex. 5F]); and the Court finds the ALJ’s reasons for his decision are
supported by substantial evidence.

Accordingly, the Court OVERRULES

Shepherd’s assertion of error in Claim 1.
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued February 2, 2016, denying Shepherd’s
applications for PoD and DIB is AFFIRMED under 42 U.S.C. § 405(g) and
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1383(c)(3).
Final judgment shall issue separately in accordance with this Order and
Rule 58, FED. R. CIV. P.
DONE and ORDERED this the 7th day of July 2017.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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