Overstreet v. Colvin
MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying applications for a period of disability, DIB, and SSI is AFFIRMED under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 9/11/17. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JOSEPH D. OVERSTREET,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 16-00510-N
MEMORANDUM OPINION AND ORDER
Plaintiff Joseph D. Overstreet 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
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.
With the 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. 21, 22).
Upon consideration of the parties’ briefs (Docs. 17, 18) and those portions of the
administrative record (Doc. 16) (hereinafter cited as “(R. [page number(s) in lower-right
corner of transcript])”) relevant to the issues raised, and with the benefit of oral
argument held May 4, 2017, the Court finds that the Commissioner’s final decision is
due to be AFFIRMED under sentence four of § 405(g).
Overstreet filed applications for a period of disability, DIB, and SSI with the
Social Security Administration (“SSA”), alleging disability beginning March 11, 2014.1
After his applications were initially denied, Overstreet requested a hearing before an
Administrative Law Judge (“ALJ”) with the SSA’s Office of Disability Adjudication and
After holding a hearing, the ALJ issued an unfavorable decision on
Overstreet’s applications, finding him “not disabled” under the Social Security Act and
thus not entitled to benefits. (See R. 16 – 29).
The Commissioner’s decision on Overstreet’s applications became final when the
Appeals Council for the Office of Disability Adjudication and Review denied
Overstreet’s request for review of the ALJ’s decision on August 12, 2016. (R. 1 – 5).
Overstreet subsequently filed this action under §§ 405(g) and 1383(c)(3) for judicial
review of the Commissioner’s final decision. 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
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).
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 findings
of fact. No similar presumption of validity attaches to the [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 1260 (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. 1994).
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
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.”).
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, 357 F.3d at 1237-39).3
“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
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
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
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
Finally, although the “claimant bears the burden of demonstrating the
inability to return to [his or] her past relevant work, the Commissioner of Social
Security has an obligation to develop a full and fair record.” Shnorr v. Bowen, 816 F.2d
578, 581 (11th Cir. 1987). 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. “[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.
At Step One, the ALJ determined that Overstreet had not engaged in substantial
gainful activity since the alleged disability onset date, March 11, 2014. (R. 21). At Step
Two, the ALJ determined that Overstreet had the following severe impairments:
essential hypertension, diabetes mellitus, chronic liver disease, hepatitis C, gastritis
and duodenitis, affective disorders, and substance addiction disorders. (R. 21). At Step
Three, the ALJ found that Overstreet 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. 21 – 23).
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 Overstreet had the RFC “to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant could lift and carry
50 pounds occasionally and 25 pounds frequently[,] could occasionally climb ramps and
stairs, but never climb ladders, ropes, or scaffolds[,] could frequently balance[, and]
could never be exposed to unprotected heights or moving mechanical parts.” Moreover,
Overstreet’s “ability to understand, remember, and carry out instructions would be
limited to performing simple and routine tasks[, his] ability to use judgment would be
limited to simple work related decisions[, he] could respond appropriately to
supervisors and coworkers frequently and the public occasionally[, and he] could deal
with occasional changes in the work setting.” (R. 23 – 27).
Based on this RFC, the ALJ determined that Overstreet was unable to perform
any past relevant work as a bricklayer helper and a construction laborer. (R. 27 – 28).
At Step Five, after taking testimony from a vocational expert, the ALJ found that there
exist significant numbers of jobs in the national economy that Overstreet can perform
given his RFC, age, education, and work experience. (R. 28 – 29). Thus, the ALJ found
that Overstreet was not disabled under the Social Security Act. (R. 29).
First Claim of Error (Medical Opinion of Dr. Hernandez)
Overstreet’s first claim of reversible error is that the ALJ’s RFC is not supported
by substantial evidence because the ALJ erred in significantly relying on the medical
“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. §§
opinion of consultative examining physician Dr. Nathaniel Hernandez.
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 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) & (e)). “[T]he ALJ
must state with particularity the weight given to different medical opinions and the
reasons therefor.” Winschel, 631 F.3d at 1179.
The ALJ addressed Dr. Hernandez’s opinion as follows:
Nathaniel Hernandez, M.D., consultative examiner, opined that the
claimant did not demonstrate any limitations with the exception of
possible mild limitations with respect to traveling and hazards (Exhibit
B6F). The undersigned gives this opinion great weight so far as it
pertains to the claimant’s physical functioning outside of his ability to lift
and carry or climb ladders and stoop. As noted throughout this decision,
there is little support for a finding of disabled in this case, especially in
light of generally benign clinical presentations, documented evidence of
noncompliance with recommended treatment, and improvement with the
use of medication. However, the undersigned gives some weight to the
portion of Dr. Hernandez’ opinion addressing the claimant’s ability to lift
and carry or climb ladders and stoop to credit the claimant’s continued
complaints of physical impairment subsequent to Dr. Hernandez August
2014 opinion as well as the potential side effects of the claimant’s
medications (Exhibit B9E).
(R. 26). Overstreet argues that Dr. Hernandez’s opinion is unreliable because it was
“not based on an adequate assessment of Plaintiff’s diseases, impairments, and
complaints described in Plaintiff’s medical history” and was “disproportionate and
inconsistent with the medical findings upon examination and testing.” (Doc. 17 at 5).5
This Court cannot “reweigh the evidence” when reviewing a final decision of the
Commissioner. Winschel, 631 F.3d at 1178. Moreover, the law of this Circuit is that an
ALJ “may reject the opinion of any physician when the evidence supports a contrary
conclusion.” E.g., Bloodsworth, 703 F.2d at 1240 (emphasis added). The undersigned is
Overstreet also conclusorily argues that the ALJ violated Social Security Ruling 96-6p
in his evaluation of Dr. Hernandez’s opinion. Not only does Overstreet fail to offer any
substantive argument in support of this point, SSR 96-6p applies only to the
consideration of medical opinions from nonexamining sources and was thus
inapplicable to Dr. Hernandez, an examining source. See SSR 96-6p, 1996 WL 374180,
at *1 (S.S.A. July 2, 1996) (“Findings of fact made by State agency medical and
psychological consultants and other program physicians and psychologists regarding
the nature and severity of an individual's impairment(s) must be treated as expert
opinion evidence of nonexamining sources at the administrative law judge and
Appeals Council levels of administrative review…Administrative law judges and the
Appeals Council may not ignore these opinions and must explain the weight given to
these opinions in their decisions.” (emphasis added)).
unaware of any authority stating that the ALJ must reject a medical opinion when
evidence supports a contrary conclusion. Regardless, substantial evidence supports the
ALJ’s decision to assign mostly great weight to Dr. Hernandez’s opinion.
Overstreet’s brief cites various record evidence that he believes contradicts Dr.
Hernandez’s opinion. (See Doc. 17 at 4 – 5). However, the undersigned agrees with the
Commissioner that this evidence consists merely of diagnoses indicating the existence
of various impairments. “[T]he mere existence of these impairments does not reveal the
extent to which they limit [Overstreet’s] ability to work or undermine[ Dr. Hernandez’s
or] the ALJ's determination in that regard.” Moore, 405 F.3d at 1213 n.6. The ALJ’s
opinion adequately indicates that he considered these impairments and the evidence on
which they were based, determining that the findings were overall “unremarkable” and
“benign,” noting Overstreet’ history of non-compliance in treatment regimens, and
offering “several reasons why [Overstreet]’s allegations of debilitating symptoms are
not generally consistent with the evidence.” (See R. 24 – 27). The ALJ also found that
Dr. Hernandez’s opinion was generally consistent with the record evidence, largely
assigning it “great weight” because, “[a]s noted throughout th[e ALJ’s] decision, there is
little support for a finding of disabled in this case, especially in light of generally benign
clinical presentations, documented evidence of noncompliance with recommended
treatment, and improvement with the use of medication.” (R. 26).
Overstreet also argues that Dr. Hernandez’s opinion is inconsistent with his own
notes – specifically, his notations that Overstreet’s medical records were “remarkable
for multiple outpatient GI procedures related to [his] history of hepatitis C and
diabetes” (R. 372); that Overstreet was “poorly kempt,” “gaunt appearing,” and
“appear[ed] nauseated throughout the exam, frequently motioning towards the
wastebasket and demonstrating hiccups throughout the exam and interview” (R. 373);
that Overstreet “demonstrate[d] diffuse tenderness to palpation with all four
quadrants, though most vocally within the epigastric region (R. 374); and he was
diagnosed with “abdominal pain” and “hepatitis C” (R. 375).
unremarkable physical findings. (See R. 372 – 376).
As the Commissioner
Overstreet does not provide any
specific argument as to how any of the notations undermines Dr. Hernandez’s opinion,
and the undersigned is unconvinced that, even considered as a whole, those notations
render the opinion unreliable to the point the ALJ’s reliance on it was reversible error.
Accordingly, the Court OVERRULES this first claim of error.
b. Second, Third, & Fourth Claims of Error (Various Conclusory Arguments)
Overstreet conclusorily raises three additional claims of error following his
arguments as to Dr. Hernandez’s opinion. First, Overstreet asserts that “the medical
evidence of record supports a more restrictive residual functional capacity than that
assigned by the” ALJ. (Doc. 17 at 6). Even accepting this statement as true, it does not
follow that the ALJ’s less restrictive RFC is not supported by the medical evidence of
record as well.
See Ingram, 496 F.3d at 1260 (“Even if the evidence preponderates
against the Commissioner’s factual findings, the Court must affirm if the decision
reached is supported by substantial evidence.” (quotation omitted)).
Second, Overstreet complains that the ALJ “has not provided the required
linkage between the record of evidence and the [RFC] assigned.” (Doc. 17 at 6). He
himself, however, fails to link this argument to any specific portion of the ALJ’s
decision. See 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). Regardless, the ALJ’s decision did provide some discussion linking the RFC to
the record evidence (see R. 27),6 and Overstreet fails to explain how this discussion was
Finally, at the same time he argues that the ALJ should have rejected the
opinion of Dr. Hernandez, a medical professional, Overstreet asserts that the “residual
functional capacity delineated by the [ALJ]…essentially substitutes the [ALJ]’s own
medical opinion.” Given that the ALJ gave “great weight” to all of the medical opinions
At Step Four, after summarizing the record evidence and weighing the medical
opinions, the ALJ proceeded to explain:
Given the foregoing, the undersigned finds that the residual functional
capacity assessed herein is appropriate…The residual functional capacity
limits the claimant to medium work with postural limitations in light of
the physical pain the claimant suffers because of his gastrointestinal
impairments. Lifting and carrying items heavier than 50 pounds and
performing some postural activities may exacerbate stomach pain; thus,
the claimant is appropriately limited to medium work. The residual
functional capacity further contemplates limitations on the claimant’s
exposure to heights, moving mechanical parts, and climbing in light of the
potential side effects of the claimant’s medications. The claimant is
further limited to simple and routine tasks, simple work related decisionmaking, and social limitations in the workplace to credit the claimant’s
moderate limitations in social functioning and concentration, persistence,
of record (with the exception of that portion of Dr. Hernandez’s opinion the ALJ
assigned only “some weight” to favor Overstreet’s more severe subjective complaints)
(see R. 26 – 27), this assertion is meritless.
Accordingly, the undersigned OVERRULES these three claims of error.
Fifth Claim of Error (Second Consultative Examination)
As noted previously, the ALJ gave great weight to some parts of Dr. Hernandez’s
opinion but only some weight to other parts. Overstreet claims that “[t]his creates a
conflict that requires a new consultative examination.” (Doc. 17 at 7).7 Overstreet cites
no authority to support this proposition, and the undersigned is not persuaded. The
ALJ “has a duty to develop the record where appropriate but is not required to order a
consultative examination as long as the record contains sufficient evidence for the
administrative law judge to make an informed decision.” Ingram, 496 F.3d at 1269.
Here, in addition to Dr. Hernandez’s opinion, the ALJ considered the opinion of a state
agency medical consultant, Overstreet’s subjective testimony, and numerous medical
records from several sources, including Overstreet’s treating healthcare providers.
Overstreet fails to explain how this other evidence was insufficient for the ALJ to make
an informed decision.
To the extent Overstreet is claiming that an ALJ must adopt a medical opinion
to justify every aspect of an RFC, the undersigned has previously rejected such an
argument, and Overstreet offers no persuasive reasoning to find otherwise. Fritts v.
Colvin, Civil Action No. 15-00209-N, 2016 WL 3566866, at *7 – 9 (S.D. Ala. June 24,
2016). See also Green v. Soc. Sec. Admin., 223 F. App’x 915, 923–24 (11th Cir. 2007)
Overstreet notes that he “submitted a written request for an internal medicine
consultative examination” on December 7, 2015. (Doc. 17 at 7 (citing R. 251)).
(per curiam) (unpublished) (“Green argues that once the ALJ decided to discredit Dr.
Bryant's evaluation, the record lacked substantial evidence to support a finding that
she could perform light work. Dr. Bryant’s evaluation, however, was the only evidence
that Green produced, other than her own testimony, that refuted the conclusion that
she could perform light work. Once the ALJ determined that no weight could be placed
on Dr. Bryant’s opinion of the Green’s limitations, the only documentary evidence that
remained was the office visit records from Dr. Bryant and Dr. Ross that indicated that
she was managing her respiration problems well, that she had controlled her
hypertension, and that her pain could be treated with over-the-counter medication.
Thus, substantial evidence supports the ALJ's determination that Green could perform
light work. The ALJ did not substitute his judgment for that of Dr. Bryant; rather, he
determined that Dr. Bryant's opinion was inconsistent with objective medical evidence
in the record.”). To the extent the ALJ’s assignment of only “some weight” to certain
parts of Dr. Hernandez’s opinion could be considered an evidentiary hole, the ALJ
clearly filled it in with Overstreet’s own subjective testimony by “credit[ing his]
continued complaints of physical impairment subsequent to Dr. Hernandez [sic] August
2014 opinion as well as the potential side effects of [his] medications…” (R. 26).
Accordingly, the Court OVERRULES Overstreet’s fifth claim of error. There
being no other claims of error asserted,8 the Court finds that the Commissioner’s final
Generally, claims of error not raised in the district court are deemed waived. See
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);
decision denying Overstreet benefits is due to be AFFIRMED.
In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued August 12, 2016, denying Overstreet’s applications
for a period of disability, DIB, and SSI is AFFIRMED under sentence four of 42 U.S.C.
Final judgment shall issue separately in accordance with this order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 11th day of September 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
Cooley v. Comm'r of Soc. Sec., 671 F. App'x 767, 769 (11th Cir. 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’).”).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?