Robinson v. Colvin
MEMORANDUM OPINION AND ORDER that the Commissioner's final decision denying plaintiff's application for disability, DIB, and SSI is AFFIRMED under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 7/27/2017. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 16-00494-N
MEMORANDUM OPINION AND ORDER
Plaintiff Michelle Robinson brought this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner
of Social Security (“the Commissioner”) denying her applications for a period of
disability and disability insurance benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. § 401, et seq., and for supplemental security income (“SSI”)
under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.
consent of the parties, the Court has designated the undersigned Magistrate Judge
to conduct all proceedings and order the entry of judgment in this civil action, in
accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D.
Ala. GenLR 73. (See Docs. 26, 27).
Upon consideration of the parties’ briefs (Docs. 15, 16, 23) and those portions
of the administrative record (Doc. 14) (hereinafter cited as “(R. [page number(s) in
lower-right corner of transcript])”) relevant to the issues raised,1 the Court finds
With the Court’s consent, the parties jointly waived the opportunity for oral
argument. (See Docs. 25, 28).
that the Commissioner’s final decision is due to be AFFIRMED under sentence
four of § 405(g).
On March 27, 2012, Robinson filed applications for a period of disability, DIB,
and SSI with the Social Security Administration (“SSA”), alleging disability
beginning November 15, 2011. 2
After her applications were initially denied,
Robinson requested a hearing before an Administrative Law Judge (“ALJ”) with the
SSA’s Office of Disability Adjudication and Review. After holding two hearings, on
February 8, 2014, the ALJ issued an unfavorable decision on Robinson’s
applications, finding her “not disabled” under the Social Security Act and thus not
entitled to benefits. (See R. 169 – 178).
On June 19, 2015, the Appeals Council for the Office of Disability
Adjudication and Review vacated the ALJ’s initial unfavorable decision and
remanded Robinson’s case to the ALJ for resolution of certain issues. (R. 183 –
187). On remand, the ALJ held another hearing on October 15, 2015. On December
9, 2015, the ALJ issued a second unfavorable decision on Robinson’s applications.
DIB provides income to individuals who are forced into involuntary,
premature retirement, provided they are both insured and disabled, regardless of
indigence. See 42 U.S.C. § 423(a). SSI is a general public assistance measure
providing an additional resource to the aged, blind, and disabled to assure that
their income does not fall below the poverty line. Eligibility for SSI is based upon
proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C).
“For DIB claims, a claimant is eligible for benefits where she demonstrates
disability on or before the last date for which she were insured. 42 U.S.C. §
423(a)(1)(A) (2005). For SSI claims, a claimant becomes eligible in the first month
where she is both disabled and has an SSI application on file. 20 C.F.R. § 416.202–
03 (2005).” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
(R. 17 – 37). The Commissioner’s decision on Robinson’s applications became final
when the Appeals Council denied Robinson’s request for review of the ALJ’s second
unfavorable decision on July 27, 2016. (R. 1 – 5). Robinson subsequently filed this
action under §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner’s final
See (Doc. 1); 42 U.S.C. § 1383(c)(3) (“The final determination of the
Commissioner of Social Security after a hearing [for SSI benefits] shall be subject to
judicial review as provided in section 405(g) of this title to the same extent as the
Commissioner’s final determinations under section 405 of this title.”); 42 U.S.C. §
405(g) (“Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party, irrespective of the amount
in controversy, may obtain a review of such decision by a civil action commenced
within sixty days after the mailing to him of notice of such decision or within such
further time as the Commissioner of Social Security may allow.”); Ingram v.
Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law
of this Circuit is that a court may review, under sentence four of section 405(g), a
denial of review by the Appeals Council.”).
Standards of Review
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on proper
legal standards. Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” ’
” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam)
(internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997))). However, the Court “ ‘may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the [Commissioner].’ ” Id. (quoting
Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in
original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))).
“‘Even if the evidence preponderates against the [Commissioner]’s factual findings,
[the Court] must affirm if the decision reached is supported by substantial
evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The Court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
conduct a de novo proceeding, nor to rubber stamp the administrative decisions that
come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”). “In determining whether substantial evidence exists, [a
court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, the “substantial evidence” “standard of review applies only to
[Commissioner]’s conclusions of law, including determination of the proper
standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals from the
administrative denials of Social Security benefits dictates that ‘(t)he findings of the
Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....’
42 U.S.C.A. s 405(g) … As is plain from the statutory language, this deferential
standard of review is applicable only to findings of fact made by the Secretary, and
it is well established that no similar presumption of validity attaches to the
Secretary’s conclusions of law, including determination of the proper standards to
be applied in reviewing claims.” (some quotation marks omitted)).
“conduct[s] ‘an exacting examination’ of these factors.” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)). “‘The [Commissioner]’s failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the
proper legal analysis has been conducted mandates reversal.’” Ingram, 496 F.3d at
(quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)).
Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
In sum, courts “review the Commissioner’s factual findings with deference
and the Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (per curiam) (“In Social Security appeals, we review de novo
the legal principles upon which the Commissioner's decision is based. Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, we review the resulting
decision only to determine whether it is supported by substantial evidence.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004).”).
Eligibility for DIB and SSI requires that the claimant be disabled. 42
U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if she is
unable “to engage in any substantial gainful activity by reason of a
medically determinable physical or mental impairment ... which has
lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015) (per
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
In this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).4
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has satisfied this initial burden, the
examiner must consider four factors: (1) objective medical facts or clinical findings;
(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the
claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983) (per curiam)).
“These factors must be considered both singly and in
combination. Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves
that he or she has a qualifying disability and cannot do his or her past relevant
work, it then becomes the Commissioner’s burden, at Step Five, to prove that the
claimant is capable—given his or her age, education, and work history—of engaging
in another kind of substantial gainful employment that exists in the national
economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler,
764 F.2d 834, 836 (11th Cir. 1985).
Finally, although the “claimant bears the
burden of demonstrating the inability to return to [his or] her past relevant work,
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
the Commissioner of Social Security has an obligation to develop a full and fair
record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established
that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.” (citations omitted)).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.
In determining whether a
claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
Where, as here, the ALJ denied benefits and the Appeals Council denied
review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. Because the Appeals
Council vacated the ALJ’s initial unfavorable decision, the Court reviews the ALJ’s
second unfavorable decision issued December 9, 2015, as the Commissioner’s final
decision. “[W]hen the [Appeals Council] has denied review, [the Court] will look
only to the evidence actually presented to the ALJ in determining whether the
ALJ’s decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320,
1323 (11th Cir. 1998). If the applicant attacks only the ALJ’s decision, the Court
may not consider evidence that was presented to the Appeals Council but not to the
ALJ. See id. at 1324.
Summary of the ALJ’s Decision
At Step One, the ALJ determined that Robinson had not engaged in
substantial gainful activity since the alleged disability onset date, November 15,
2011. (R. 23). At Step Two, the ALJ determined that Robinson had the following
severe impairments: diabetes mellitus with neuropathy, obesity, osteoarthritis of
the left knee, degenerative disc disease of the lumbar spine, obstructive sleep
apnea, borderline intellectual functioning (“BIF”), and adjustment disorder with
depression. (R. 23 – 24). At Step Three, the ALJ found that Robinson did not have
an impairment or combination of impairments that meets or equals the severity of
one of the specified impairments in the relevant Listing of Impairments. (R. 25 –
At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“RFC”); and (2) the claimant's ability to return to her past relevant
work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the
regulations define RFC as that which an individual is still able to do
despite the limitations caused by his or her impairments. 20 C.F.R. §
404.1545(a). Moreover, the ALJ will “assess and make a finding about
[the claimant's] residual functional capacity based on all the relevant
medical and other evidence” in the case. 20 C.F.R. § 404.1520(e).
Furthermore, the RFC determination is used both to determine
whether the claimant: (1) can return to her past relevant work under
the fourth step; and (2) can adjust to other work under the fifth
step…20 C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past
relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past relevant
work, the ALJ must determine the claimant's RFC using all relevant
medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That
is, the ALJ must determine if the claimant is limited to a particular
work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the
claimant’s RFC and determines that the claimant cannot return to her
prior relevant work, the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ determined that Robinson had the RFC “to perform medium work
as defined in 20 CFR 404.1567(c) and 416.967(c) with the following non-exertional
limitations[:] The claimant can occasionally stoop, bend, crouch, crawl and climb
ramps or stairs, although she cannot climb ladders, ropes or scaffolds. The claimant
should avoid all exposure to extreme cold or extreme heat, as well as unprotected
heights or uneven terrain. The claimant can understand, remember and carryout
[sic] simple instructions for two-hour periods and with normal breaks at the midmorning, lunch and mid-afternoon, she can sustain those activities over the course
of an eight-hour workday. The claimant can tolerate occasional interaction with
supervisors and occasional decision-making activities.
Lastly, the claimant can
tolerate changes in the work setting occurring no more than in infrequent basis.”
(R. 28 – 36). Based on this RFC, the ALJ determined that Robinson was able to
perform past relevant work as a fish filleter and meat products packer. (R. 37).
“To determine the physical exertion requirements of different types of employment
in the national economy, the Commissioner classifies jobs as sedentary, light,
medium, heavy, and very heavy. These terms are all defined in the regulations …
Each classification … has its own set of criteria.” Phillips, 357 F.3d at 1239 n.4.
“Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. If someone can do medium
work, [the ALJ] determine[s] that he or she can also do sedentary and light work.”
20 C.F.R. §§ 404.1567(c), 416.967(c).
Thus, the ALJ did not proceed to Step Five and found that Robinson was not
disabled under the Social Security Act. (R. 37).
Claim of Error (Treating Physician’s Opinion)
determination may include medical opinions.
See 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2). “ ‘Medical opinions are statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the nature and
severity of [the claimant's] impairment(s), including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and
[the claimant's] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79
(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).
“There are three tiers of
medical opinion sources: (1) treating physicians; (2) nontreating, examining
physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of
Soc. Sec., 585 F. App'x 758, 762 (11th Cir. 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) (unpublished) (internal citations
and quotation marks omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) &
The ALJ “may reject the opinion of any physician when the evidence supports
a contrary conclusion.” E.g., Bloodsworth, 703 F.2d at 1240. 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 on the merits of the claim is rational and
supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d 731,
735 (11th Cir. 1981). Therefore, when the ALJ fails to “state with at
least some measure of clarity the grounds for his decision,” we will
decline to affirm “simply because some rationale might have supported
the ALJ's conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir.
1984) (per curiam). In such a situation, “to say that [the ALJ’s]
decision is supported by substantial evidence approaches an abdication
of the court's duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational.” Cowart, 662 F.2d at 735
(quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979))
(internal quotation marks omitted).
Winschel, 631 F.3d at 1179.
“A ‘treating source’ (i.e., a treating physician) is a claimant's ‘own physician,
psychologist, or other acceptable medical source who provides, or has provided,[
the claimant] with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].’ ” Nyberg v. Comm'r of Soc.
Sec., 179 F. App'x 589, 591 (11th Cir. 2006) (per curiam) (unpublished) (quoting 20
C.F.R. § 404.1502). “Absent ‘good cause,’ an ALJ is to give the medical opinions of
treating physicians ‘substantial or considerable weight.’ ” Winschel, 631 F.3d at
1179 (quoting Lewis, 125 F.3d at 1440). That is so because treating sources are
likely in a better position “to provide a detailed, longitudinal picture of [a
claimant’s] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings alone
or from reports of individual examinations, such as consultative examinations or
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
exists ‘when the: (1) treating physician’s opinion was not bolstered by the evidence;
(2) evidence supported a contrary finding; or (3) treating physician's opinion was
conclusory or inconsistent with the doctor’s own medical records.’ With good cause,
an ALJ may disregard a treating physician's opinion, but he ‘must clearly articulate
[the] reasons’ for doing so.” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d
at 1240-41) (internal citation omitted). See also, e.g., Bloodsworth, 703 F.2d at 1240
(“[T]he opinion of a treating physician may be rejected when it is so brief and
conclusory that it lacks persuasive weight or where it is unsubstantiated by any
clinical or laboratory findings. Further, the Secretary may reject the opinion of any
physician when the evidence supports a contrary conclusion.” (citation omitted)).
An ALJ’s failure to clearly articulate the reasons for giving less weight to the
opinion of a treating physician is reversible error. Lewis v. Callahan, 125 F.3d at
1440 (citing MacGregor, 786 F.2d at 1053).
Robinson’s sole claim of reversible error is that the ALJ erred at Step Four in
assigning less than substantial or considerable weight to the medical opinion of her
treating physician, Dr. Perry Timberlake.6 The ALJ summarized Dr. Timberlake’s
Generally, claims of error not raised in the district court are deemed waived. See
opinion as follows:
On October 7, 2013, just a few days after the claimant’s most recent
largely normal physical examination, Dr. Timberlake completed a
Medical Source Statement (Physical) form, on which he opined that the
claimant was only capable of sitting two hours during an eight-hour
workday and standing or walking one hour during an eight-hour
workday. Dr. Timberlake indicated that the claimant could only lift
and/or carry 1 pound frequently and 5 pounds occasionally, and that
she could never bend, stoop or reach (including overhead reaching). He
noted that the claimant could rarely push or pull with her upper and
lower extremities, balance or climb stairs or ladders. Dr. Timberlake
did indicate, however, that the claimant could occasionally grasp,
twist, handle, finger, operate motor vehicles and work with or around
hazardous machinery. Lastly, Dr. Timberlake indicated the claimant
would miss more than three days of work each month because of her
impairments (Exhibit 14F).
Dr. Timberlake also completed a Clinical Assessment of Pain form, on
which he indicated that the claimant’s pain was “profound and
intractable, virtually incapacitating.” He indicated that practically
any physical activity would increase the claimant’s level of pain to such
an extent that bed rest and/or medication would be necessary. Lastly,
Dr. Timberlake opined that the claimant’s medications would place
Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115 – 16 (11th Cir. 1994)
(“As a general principle, [the court of appeals] will not address an argument that
has not been raised in the district court … Because Stewart did not present any of
his assertions in the district court, we decline to consider them on appeal.” (applying
rule in appeal of judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3)); Hunter v.
Comm’r of Soc. Sec., 651 F. App'x 958, 962 (11th Cir. 2016) (per curiam)
(unpublished) (same); Cooley v. Comm'r of Soc. Sec., No. 16-11238, 2016 WL
7321208, at *2 (11th Cir. Dec. 16, 2016) (per curiam) (unpublished) (“As a general
rule, we do not consider arguments that have not been fairly presented to a
respective agency or to the district court. See Kelley v. Apfel, 185 F.3d 1211, 1215
(11th Cir. 1999) (treating as waived a challenge to the administrative law judge’s
reliance on the testimony of a vocational expert that was ‘not raise[d] . . . before the
administrative agency or the district court’).”); In re Pan Am. World Airways, Inc.,
Maternity Leave Practices & Flight Attendant Weight Program Litig., 905 F.2d 1457,
1462 (11th Cir. 1990) (“[I]f a party hopes to preserve a claim, argument, theory, or
defense for appeal, she must first clearly present it to the district court, that is, in
such a way as to afford the district court an opportunity to recognize and rule on
it.”); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (applying In re Pan
American World Airways in Social Security appeal).
“severe” limitations on even the most simple, everyday tasks (Exhibit
In September 2015, Dr. Timberlake again completed Medical Source
Statement (Physical) and Clinical Assessment of Pain forms (Exhibit
27F). Dr. Timberlake’s opinions on this set of forms mirrors his
opinions on the forms he completed in October 2013 (Exhibit 14F).
(R. 33 – 34). The ALJ weighed Dr. Timberlake’s opinions in these forms as follows:
On these forms, Dr. Timberlake indicated that the claimant was only
capable of sitting for two hours during an eight-hour workday and
standing in or walking one hour during an eight-hour workday.
Additionally, he found that the claimant could lift only 1 pound
frequently and 5 pounds occasionally. The remaining opinions on this
form will not be discussed here, is [sic] they have been previously
discussed elsewhere in this decision. Nonetheless, after reviewing Dr.
Timberlake’s answers on these forms and comparing them to his actual
treatment records of the claimant, the administrative law judge finds
that they are completely inconsistent in nature. The overwhelming
majority of the claimant’s physical examinations from Dr. Timberlake
were essentially normal in nature or showed only minor deficiencies.
Dr. Timberlake’s records do not document any significant physical
limitations or any reports of significant pain. Dr. Timberlake’s opinion
that the claimant would miss more than three days of work each
month because of her impairments is also not substantiated by the
evidentiary record as a whole. His opinions regarding the claimant’s
level of pain, and its limiting effects, are simply not consistent with his
own treatment record of the claimant. Both Dr. Chu and Dr. Mani’s
findings directly contradict Dr. Timberlake’s opinion. Their opinions
are supported by the claimant’s physical exams throughout the record.
For these reasons, Dr. Timberlake’s opinions on these forms are given
little weight. Additionally, after another almost completely normal
physical examination, Dr. Timberlake opined that “this patient is
completely and totally disabled to do gainful work now or in the
future.” This particular opinion is also given little weight, as this issue
is strictly reserved to the Commissioner of Social Security (20CFR
The ALJ found good cause to assign little weight to Dr. Timberlake’s opinions
because they were inconsistent with the doctor’s own medical records, Winschel, 631
F.3d at 1179, and substantial evidence supports that decision.
summarized Dr. Timberlake’s records as follows:
In August 2013, the claimant complained of having back pain but her
physical examination was again normal (Exhibit 13F [R. 584 – 598 Hale County Hospital Clinic Records dated 8/29/2013 to 9/30/2013]).
Treatment records from Dr. Timberlake show that the claimant
complained of back pain on several occasions in 2014. No diagnostic
studies were obtained at the time and the claimant was simply treated
with pain medications (Exhibit 20F [R. 634 – 651 - Hale County
Hospital Clinic Records dated 2/3/2014 to 8/4/2014]). In January 2105
[sic], Dr. Timberlake obtained x-rays of the claimant’s lumbar spine,
although they only showed degenerative changes at the L3-L4 level
with well-maintained disc spaces (Exhibit 23F [R. 665 – 686 - Hale
County Hospital Clinic Records dated 10/8/2014 to 7/10/2015])…
In July 2013, the claimant presented to Dr. Timberlake and indicated
that she wanted to have him become her primary care physician
(Exhibit 11F). She complained of right heel pain, swelling of the
ankles and low back pain, and Dr. Timberlake noted the presence of
tenderness to palpation in her lumbar spine, as well as CVA
tenderness. Dr. Timberlake diagnosed the claimant with obstructive
sleep apnea, and recommended that she have a sleep study performed.
Treatment records over the next few months from Dr. Timberlake
show that the claimant complained of having hand pain, throat pain
and burning in her left knee and left thigh (Exhibit 13F). On
September 30, 2013, the claimant’s primary complaints were of vaginal
itching, burning with urination and neuropathy.
Timberlake also noted that the claimant appeared “quite depressed.”
Depression was added to her list of diagnoses, and Dr. Timberlake
opined that “this patient is completely and totally disabled to do
gainful work now or in the future” (Exhibit 13F).
…Dr. Timberlake’s diagnosis of obstructive sleep apnea, which was
rendered without the benefit of having any diagnostic testing at that
time, was subsequently confirmed by James Geyer, M.D., who
administered a polysomnography test [sic] the claimant (Exhibits 15F
and 18F). Although the claimant was found to have obstructive sleep
apnea, she was prescribed a CPAP device for symptom control and the
evidentiary record does not contain any further complaints or
limitations related to this condition.
…During the first several months of 2014, the claimant continued to
receive her primary care from Dr. Timberlake at Hale County Hospital
Clinic (Exhibit 20F). Although she had multiple complaints during
these visits, except for her morbid obesity, her physical examinations
were essentially normal (Exhibit 20F). In January 2015, the claimant
again complained of low back pain. An x-ray of her lumber spine
obtained during this visit revealed no evidence of any acute process,
although degenerative changes were noted at the L3-L4 level (Exhibit
In April 2015, the claimant complained of having epigastric pain and
low back pain. Left-sided costovertebral angle tenderness was noted,
and she was diagnosed with simple back pain (Exhibit 23F). The
claimant’s treatment records over the next few months fail to
document any significant complaints of any kind (Exhibit 23F).
However, these treatment records do document the claimant’s Body
Mass Index of 40.68 (Exhibit 23F).
In August 2015, the claimant returned to Dr. Timberlake’s office with
complaints of a one-week history of left knee pain.
examination revealed “some” laxity, she was referred to physical
(R. 30, 32 – 34). Robinson takes no issue with the ALJ’s view of Dr. Timberlake’s
records as discussed above, and the undersigned finds that it substantially supports
the ALJ’s determination.
Robinson’s own summary of the treatment notes of Dr. Timberlake and
others simply point out various diagnoses made. (See Doc. 16 at 3 – 5).
claims that Dr. Timberlake’s opinions are not inconsistent with his treatment
records because those records “show he administered injections and prescribed
medications[,]” declaring “[i]t is inconceivable that a physician would administer
injections and prescribe medications for a condition that did not warrant such
treatment.” (Id. at 6). However, “[t]he mere existence of  impairments does not
reveal the extent to which they limit [Robinson’s] ability to work or undermine the
ALJ's determination in that regard.” Moore, 405 F.3d at 1213 n.6. See also Higgs v.
Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (per curiam) (“The mere diagnosis of
arthritis, of course, says nothing about the severity of the condition.”). Similarly, it
does not follow that Robinson must be found disabled merely because she is
receiving medical treatment. Moreover, Robinson cites only one instance in which
Dr. Timberlake “administered pain medication by injection and prescribed Tylenol
#3[,]” (Doc. 16 at 4 (citing R. 674 – 676)), indicating that whatever impairments
required such treatment were largely controlled by it. Cf. Dawkins v. Bowen, 848
F.2d 1211, 1213 (11th Cir. 1988) (“a remediable or controllable medical condition is
generally not disabling”). At the very least, substantial evidence supports the ALJ’s
articulated “good cause” to reject Dr. Timberlake’s opinion.
Robinson also argues the ALJ erred by assigning “great weight” to the
opinion of nonexamining physician Dr. Mani, “who affirmed the findings of” another
nonexamining physician, Dr. Gragg, after find finding the opinions were “consistent
with the evidentiary record as a whole…” (R. 36).
In rejecting Dr. Timberlake’s
opinion, the ALJ noted that the opinion was “directly contradict[ed]” by “Dr. Mani’s
findings…” (R. 36). It is true that “[t]he good cause required before the treating
physicians' opinions may be accorded little weight is not provided by the report of a
nonexamining physician where it contradicts the report of the treating physician.”
Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988) (citing Johns v. Bowen, 821 F.2d
551 (11th Cir. 1987) (per curiam)). However, any reference to Dr. Mani’s opinion in
rejecting Dr. Timberlake’s is harmless because the ALJ articulated other grounds
showing “good cause,” and those grounds are supported by substantial evidence, see
It is also true that “[t]he reports of reviewing nonexamining physicians do not
constitute substantial evidence on which to base an administrative decision[,]” id.
(citing Spencer on Behalf of Spencer v. Heckler, 765 F.2d 1090 (11th Cir. 1985) (per
curiam), and Strickland v. Harris, 615 F.2d 1103 (5th Cir. 1980)), and that the “
‘opinions of nonexamining, reviewing physicians, ... when contrary to those of
examining physicians are entitled to little weight in a disability case, and standing
alone do not constitute substantial evidence.’ ” Id. (quoting Sharfarz v. Bowen, 825
F.2d 278, 280 (11th Cir. 1987) (per curiam)). However, the ALJ did not rely solely
on the opinions of the nonexamining physicians in formulating the RFC, instead
also relying on the extensive objective medical evidence of record, including the
treatment records of Dr. Timberlake and the findings of consultative examining
physician Dr. Chu7 (with which the ALJ found the nonexamining opinions to be
To the extent Robinson argues the ALJ erred in assigning “some weight” to Dr.
Chu’s report, the undersigned disagrees. While Robinson points out that Dr. Chu’s
report offered no diagnosis or impression because Dr. Chu was “[u]nable to make a
determination at th[at] time due to lack of requested records” (R. 497), the ALJ
acknowledged that Dr. Chu’s report “did not offer any diagnoses or render an
opinion as to the claimant’s functional limitations…” (R. 36). However, the ALJ
also noted, correctly, that Dr. Chu’s report detailed substantial “physical findings”
from his examination (R. 36, 494 – 496). Thus, contrary to Robinson’s assertion, the
report as a whole did not amount to “no evidence” simply because Dr. Chu did not
provide a medical opinion, and the ALJ did not act improperly in assigning weight
to the report. Cf. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)
(Commissioner must sufficiently explained the weight given to “obviously probative
Robinson cites Johnson v. Barnhart, 138 F. App'x 266 (11th Cir. 2005) (per
curiam) (unpublished) in support of this argument, noting the panel’s determination
that, “[a]lthough the ALJ may have properly rejected [the treating physician]’s RFC
evaluation for good cause, as it was inconsistent with his own progress notes, the
ALJ nevertheless, erred in giving greater weight to the opinion of Maloy, a nonexamining physician.” 138 F. App'x at 270. However, the ultimate reversible error
identified in Johnson was the ALJ’s failure “to resolve the inconsistencies” in the
record as to whether the claimant could return to her past relevant work by
soliciting vocational expert testimony. Id. at 271. More specifically, while the ALJ
determined that the claimant was capable of performing past work, the panel held
that “Maloy’s RFC evaluation is not dispositive, as its conclusions are from a nontreating, non-examining physician, and the other medical records express no
indication of Johnson's ability to perform her past work.” Id. In other words, the
only record evidence that the claimant could perform past work was the
nonexamining physician’s opinion, which, under circuit precedent, does not
constitute substantial evidence “standing alone.” Lamb, 847 F.2d at 703.
Here, Robinson’s claim of reversible error focuses solely on whether the ALJ
showed good cause to reject Dr. Timberlake’s opinion, which the undersigned has
answered in the affirmative. While Dr. Mani’s opinion alone would not be
substantial evidence to support the ALJ’s decision, the ALJ also relied on objective
medical records in determining that Robinson could perform past work, and
Robinson does not attempt to explain how these records are insufficient to support
this finding. Cf. Johnson, 138 F. App'x at 271 (“Johnson's past work as a cashier
Accordingly, the Court OVERRULES Robinson’s sole claim of error and thus
finds that the Commissioner’s final decision denying Robinson benefits is due to be
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued July 27, 2016, denying Robinson’s applications
for a period of disability, DIB, and SSI is AFFIRMED under sentence four of 42
U.S.C. § 405(g). Final judgment shall issue separately in accordance with this order
and Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 27th day of July 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
required standing for about four and a half hours a day, walking about one hour,
siting for about thirty minutes, and minimal lifting. Her job as a security guard
required walking for five hours, sitting for one hour, standing for one hour, and
minimal lifting. Although the vocational analysis indicated that the security guard
position was light exertional work, which Johnson was capable of doing, the medical
records are inconsistent with this analysis, as the records show that she continued
to experience pain in her back and legs and she walked with a cane. Even if her
level of pain was not credible, as discussed above, the medical records do not
support a finding that she was able to return to her past work.”).
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