Earley v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be AFFIRMED. Signed by Magistrate Judge P. Bradley Murray on 10/6/2017. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ADAM WL EARLEY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 16-0609-MU

MEMORANDUM OPINION AND ORDER
Plaintiff Adam WL Earley brings this action, pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), seeking judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”) denying his claim for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the
Act”) and for Supplemental Security Income (“SSI”), based on disability, under
Title XVI of the Act. 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. 18 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.
R. Civ. P. 73, the parties in this case consent to have a United States Magistrate
Judge conduct any and all proceedings in this case, … order the entry of a final
judgment, and conduct all post-judgment proceedings.”)). See also Doc. 20.
Upon consideration of the administrative record, Earley’s brief, the
Commissioner’s brief, and the arguments made at the hearing on September 14,

1

2017 before the undersigned Magistrate Judge, it is determined that the
Commissioner’s decision denying benefits should be affirmed.1
I. PROCEDURAL HISTORY
Earley applied for a period of disability and DIB, under Title II of the Act,
42 U.S.C. §§ 423 - 425, and for SSI, based on disability, under Title XVI of the
Act, 42 U.S.C. §§ 1381-1383d, on August 7, 2015, alleging disability beginning
on January 1, 2010. (Tr. 247-49, 259). He later amended his alleged onset date
to July 6, 2015. (Tr. 42). His application was denied at the initial level of
administrative review on October 22, 2015. (Tr. 132-36). On November 3, 2015,
Earley requested a hearing by an Administrative Law Judge (ALJ). (Tr. 146-47).
After hearings were held on January 14, 2016, April 14, 2016, and August 3,
2016, the ALJ issued an unfavorable decision finding that Earley was not under a
disability from the date the application was filed through the date of the decision,
August 25, 2016. (Tr. 37-48, 49-93, 94-105, 16-36). Earley appealed the ALJ’s
decision to the Appeals Council, and, on November 2, 2016, the Appeals Council
denied his request for review of the ALJ’s decision, thereby making the ALJ’s
decision the final decision of the Commissioner. (Tr. 1-5).
After exhausting his administrative remedies, Earley sought judicial review
in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The
Commissioner filed an answer on March 13, 2017 and the social security

1
Any appeal taken from this Order and Judgment shall be made to the Eleventh
Circuit Court of Appeals. See Doc. 18. (“An appeal from a judgment entered by a
Magistrate Judge shall be taken directly to the United States Court of Appeals for
the judicial circuit in the same manner as an appeal from any other judgment of
this district court.”).

2

transcript on March 14, 2017. (Docs. 12, 13). Both parties filed briefs setting forth
their respective positions. (Docs. 14, 15). Oral argument was held on September
14, 2017. (Doc. 19). The case is now ripe for decision.
II. CLAIM ON APPEAL
Earley alleges that the ALJ’s decision to deny him benefits is in error for
the following reason:
1. The ALJ erred in giving superior weight to a non-examining medical expert
than to the opinion of Earley’s long-standing treating psychiatrist.
(Doc. 14 at p. 2).
III. BACKGROUND FACTS
Earley was born on March 1, 1990, and was 25 years old at the time he
filed his claim for benefits. (Tr. 52). Earley alleged disability due to a variety of
mental issues, including anxiety, a torn shoulder, and hearing loss. (Tr. 63). After
serving two years in the Army and attending two years of junior college, he
graduated from Huntington College with a degree in Business Management in
May of 2015. (Tr. 54). While in the Army, he worked in Avionics Survivability
Equipment Repair. (Tr. 55). He has worked as a fast food restaurant cook and
cashier, on the recreational staff at The Grand Hotel, as a sales associate at
several retailers, as a salesperson at a car dealership, as a supervisor at a
grocery store, and as a bank teller. (Tr. 56-62). Earley engages in normal life
activities; such as, handling his personal care, making easy meals, going out for
walks, working out at the gym, taking out the garbage, grocery shopping,
reading, watching TV, socializing with friends on occasion, and doing research

3

and social media on the computer. (Tr. 81-85). He has a driver’s license and is
able to drive. (Tr. 53-54). After conducting several hearings, the ALJ made a
determination that Earley had not been under a disability during the relevant time
period, and thus, was not entitled to benefits. (Tr.19-31).
IV. ALJ’S DECISION
After considering all of the evidence, the ALJ made the following findings
that are relevant to the issues presented in his March 23, 2015 decision:
In activities of daily living, the claimant has mild restriction. On
October 21, 2015, Linda Duke, Ph.D. (DDS reviewing
psychologist) completed and signed a Psychiatric Review
Technique (Exhibit 1A). After reviewing the medical evidence of
record, Dr. Duke stated that the claimant has mild restriction of
activities of daily living (Exhibit 1A). On February 16, 2016, the
claimant was examined by Kim Whitchard, Ph.D. in a mental
consultative examination (Exhibit 9F). Dr. Whitchard stated that
the claimant is 25 years old (Exhibit 9F). Dr. Whitchard stated
that the claimant "goes to the gym and exercises every day. He
then comes home, showers, and watches movies. He is able to
perform ADL's." (Exhibit 9F). Additionally, Dr. Whitchard noted,
“He does have a driver's license and is able to drive himself. He
drove himself to the evaluation." (Exhibit 9F). After considering
the overall record as to the claimant's abilities of daily living, the
undersigned finds that he has mild limitation in this area of
functioning.
In social functioning, the claimant has moderate difficulties. Dr.
Duke stated that the claimant has moderate difficulties in
maintaining social functioning (Exhibit 1A). Dr. Whitchard stated
that the claimant "described his childhood as 'good, loving ... He
has never been married and has no children. He currently lives
with his maternal grandmother." (Exhibit 9F). After considering
the overall record as to the claimant's abilities of social
functioning, the undersigned finds that he has moderate limitation
in this area of functioning.
With regard to concentration, persistence or pace, the claimant
has moderate difficulties. Dr. Duke stated that the claimant has

4

moderate difficulties in maintaining concentration, persistence or
pace (Exhibit 1A). Dr. Whitchard stated that the claimant was in
the U.S. Army for two years (Exhibit 9F). Dr. Whitchard stated
that the claimant “obtained an AA from Faulkner in 2013. He
received a BA in Business Management from Huntington
College in 2015." (Exhibit 9F). Dr. Whitchard stated that the
claimant “was able to perform serial 7's. He was able to perform
serial 4's. He was able to calculate 3 of 3 multiplication
questions. He was able to calculate 2 of 2 simple word
problems. "(Exhibit 9F). In the third hearing, the medical expert
testified that the claimant would not meet listings 12.04 or 12.06
(Hearing Testimony). After considering the overall record as to
the claimant's abilities regarding concentration, persistence or
pace, the undersigned finds that he has moderate limitation in
this area of functioning.
***
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform less than the full range of
medium work as defined in 20 CFR 404.1567(c) and
416.967(c). The claimant could lift/carry up to fifty
pounds occasionally with twenty-five pounds frequently.
The claimant could sit for six hours, stand for six hours,
and walk for six hours in a regular eight-hour workday.
The claimant could reach overhead frequently on the
right side. The claimant could reach in all other
directions on the right side frequently. The claimant
could work around unprotected heights, moving
mechanical parts, and dust/odors/fumes/pulmonary
irritants occasionally. The claimant is limited to simple,
routine, and repetitive work tasks. The claimant is limited
to simple work-related decisions. Contact with
supervisors, coworkers, and the public should be causal
and non-confrontational. The claimant could interact
with supervisors, coworkers, and the public occasionally.
The claimant is limited to tolerating slowly introduced
changes in the work setting.
***
At the first hearing (held on January 14, 2016), the claimant
amended his alleged onset date of disability to July 6, 2015.

5

The claimant stated that he started working at Staples a week
prior to that hearing. At the second hearing (held on April 14,
2016) the claimant stated that he has a driver's license. The
claimant stated that he graduated college in May 2015. The
claimant was in the U.S. Army in 2007 to 2009. The claimant
complained of shoulder pain, tinnitus and mental problems. The
claimant stated that he exercises in a gym. The claimant stated
that he could bench press up to one-hundred pounds. He stated
that his asthma is well controlled by medications. The claimant
stated that he has panic attacks. The claimant is able to pay
bills, complete household chores, and shop in stores. The
claimant stated that he is on Facebook and he is internet
literate. In the third hearing (held August 3, 2016), the medical
expert John Davis, Ph.D., testified at the hearing. Dr. Davis
stated that the claimant has mild limitations in his mental
impairments. Dr. Davis stated that the claimant would not meet
listings 12.04 or 12.06. The undersigned finds great weight to
the opinions of Dr. Davis as he found no disabling mental
impairments and that the claimant did not meet or equal a
listing. However, the undersigned made the claimant's mental
impairments severe to accommodate the claimant's subjective
complaints.
The longitudinal medical evidence does not support the degree
of impairment alleged or the presence of disabling mental or
physical impairments. While the claimant has a diagnosed
condition that could cause limitations, the medical findings are
not consistent with the degree of debilitation alleged.
***
With regards to the claimant's mental impairments, he was
examined by Chad Hagans, Ph.D. at Biloxi VAMC on
September 14, 2010 (Exhibit 1F). Dr. Hagans stated that the
claimant has anxiety, PTSD and panic attacks (Exhibit 1F). As
to the claimant 's PTSD, Dr. Hagans noted, “ No combat
trauma. Never deployed. Has not incurred traumatic event
while in the Army ... Only symptoms are irritability and
insomnia.” (Exhibit 1F). For hobbies, the claimant likes to go to
the gym every day (Exhibit 1F). Dr. Hagans determined that
the claimant has panic disorder and his GAF score is 75
(Exhibit 1F).
On July 7, 2015, the claimant was examined by Terry Passman,

6

M.D. at East Bay Psychiatry (Exhibit 5F). Dr. Passman stated
that the claimant has no suicidal or homicidal intent, means of
plan (Exhibit 5F). Dr. Passman stated that the claimant has
OCD and generalized anxiety disorder (Exhibit 5F). Dr. Passman
also stated that the claimant's GAF score is 60 (Exhibit 5F). In a
follow-up examination on September 1, 2015, Dr. Passman
stated that the claimant quit his jobs at the bank (Exhibit 5F). In
a follow-up examination on January 28, 2016, Dr. Passman
stated that the claimant is working at Staples as a cashier
(Exhibit 13F). On November 16, 2015, Dr. Passman completed
and signed a medical source statement (Exhibit 6F). Dr.
Passman stated that the claimant has marked impairments in
activities of daily living, maintaining social functioning and
deficiencies of concentration, persistence or pace (Exhibit 6F).
Dr. Passman stated that the claimant has had three episodes of
decompensation (Exhibit 6F). The undersigned finds little weight
to the opinions of Dr. Passman, as his opinions are inconsistent
with the medical evidence of record including the opinions of Dr.
Whitchard and Dr. Davis. Additionally, Dr. Passman 's opinions
are internally inconsistent in Exhibit 6F. Dr. Passman notes a
bunch of marked limitation in social activities and concentration,
but he has only slight limitations in remembering instructions,
responding to supervisors, with no issues in completing simple
and repetitive tasks. Moreover, Dr. Passman 's opinions are not
consistent with his work history and his assigned GAF score of
60.
On February 16, 2016, the claimant was examined by Kim
Whitchard, Ph.D. in a mental consultative examination (Exhibit
9F). Dr. Whitchard stated that the claimant is 25 years old
(Exhibit 9F). Dr. Whitchard stated that the claimant reported that
he is filing for disability because of anxiety and agoraphobia
(Exhibit 9F). Dr. Whitchard stated that the claimant "denied any
hospitalizations." (Exhibit 9F). Dr. Whitchard stated that the
claimant takes Klonopin and “the medication helps a great deal
with his anxiety.” (Exhibit 9F). Dr. Whitchard stated that the
claimant “goes to the gym and exercises every day. He then
comes home, showers, and watches movies. He is able to
perform ADL's.” (Exhibit 9F). Additionally, Dr. Whitchard noted,
“The [sic] does have a driver's license and is able to drive
himself. He drove himself to the evaluation.” (Exhibit 9F). Dr.
Whitchard stated that the claimant was in the U.S. Army for two
years (Exhibit 9F). Dr. Whitchard stated that the claimant
“obtained an AA from Faulkner in 2013. He received a BA in

7

Business Management from Huntington College in 2015.” (Exhibit
9F). Dr. Whitchard stated that the claimant “was able to perform
serial 7's. He was able to perform serial 4's. He was able to
calculate 3 of 3 multiplication questions. He was able to calculate
2 of 2 simple word problems.” (Exhibit 9F). Dr. Whitchard stated
that the claimant “had good hygiene. He was well groomed ... His
behavior was WNL.” (Exhibit 9F). However, Dr. Whitchard stated
that the claimant “reported compulsive behavior to include
checking behavior and washing his hands multiple times/day. He
denied any delusions, hallucinations or ideas of reference."
(Exhibit 9F). Dr. Whitchard determined that the claimant has
panic disorder without agoraphobia, OCD, and personality
disorder (Exhibit 9F). After the examination, Dr. Whitchard
completed and signed a medical source statement (Exhibit 9F).
Dr. Whitchard stated that the claimant had mild limitations in
interacting appropriately with the public, supervisors and
co-workers (Exhibit 9F). The undersigned finds great weight to
the opinions of Dr. Whitchard, as her opinions are consistent with
the medical evidence of record, including the opinions of Dr.
Davis who opined no disabling mental impairments (Hearing
Testimony).
On October 21, 2015, Linda Duke, Ph.D. (DDS reviewing
psychologist) completed and signed a Psychiatric Review
Technique (Exhibit 1A). After reviewing the medical evidence of
record, Dr. Duke stated that the claimant has mild restriction of
activities of daily living (Exhibit 1A). Dr. Duke stated that the
claimant has moderate difficulties in maintaining social
functioning (Exhibit 1A). Additionally, Dr. Duke stated that the
claimant has moderate difficulties in maintaining concentration,
persistence or pace (Exhibit 1A). On the same day, Dr. Duke
completed and signed a Mental Residual Functional Capacity
Assessment (Exhibit 1A). Dr. Duke stated that the claimant is
“capable of understanding and remembering short, simple
instructions.” (Exhibit 1A). Dr. Duke also stated, “Contact with
coworkers, supervisors and the general public should be casual
and non-confrontational. Changes in the work place should be
introduced slowly.” (Exhibit 1A). The undersigned finds great
weight to the opinions of Dr. Duke, as her opinions are consistent
with the medical evidence of record as a whole including the
opinions of the medical expert (Dr. Davis) at the hearing and Dr.
Whitchard in Exhibit 9F.
Dr. John Davis, Ph. D testified as a medical expert and his

8

opinion regarding the claimant's functioning and that his
condition does not meet a listing is given great weight. It is
consistent with the record as whole and he is familiar with the
case record. It is also consistent with other medical source
statements referred to above.
After careful consideration of the evidence, the undersigned
finds that the claimant's medically determinable impairments
could reasonably be expected to cause the alleged symptoms;
however, the claimant's statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence
in the record for the reasons explained in this decision.
The claimant's medically determinable impairments could reasonably be
expected to cause some symptoms; however, the claimant's statements
concerning the intensity, persistence, and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment. That is, while the
claimant's limitations due to his impairments have resulted in a
significantly decreased residual functional capacity, he is not precluded
from all work in the enormous economy of the United States. The
residual functional capacity is supported by the claimant's daily activities
(lifting weight in a gym, driving a car, taking care of dog, maintaining a
Facebook account) and the lack of objective disabling clinical findings.
Moreover, despite the complaints of allegedly disabling symptoms, there
have been significant periods of time since the alleged onset date during
which the claimant has not taken any medications for those symptoms.
Other than Dr. Passman, the record does not contain any opinions from
treating or examining physicians indicating that the claimant is disabled
or even has limitations greater than those determined in this decision.
The evidence does not support the claimant's allegations of totally
incapacitating symptomatology. The record fails to document persistent,
reliable manifestations of a disabling loss of functional capacity by the
claimant resulting from her [sic] reported symptomatology. After
considering the entirety of the record, the undersigned concludes that the
claimant would not be precluded from performing the physical and
mental requirements of some work activity on a regular and sustained
basis.
(Tr. 23-25, 27-29).

9

V. DISCUSSION
Eligibility for DIB and SSI benefits requires that the claimant be disabled.
42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if the claimant is
unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or 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). The
impairment must be severe, making the claimant unable to do the claimant’s
previous work or any other substantial gainful activity that exists in the national
economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-11. “Substantial gainful
activity means work that … [i]nvolves doing significant and productive physical or
mental duties [that] [i]s done (or intended) for pay or profit.” 20 C.F.R. §
404.1510.
In all Social Security cases, an ALJ utilizes a five-step sequential
evaluation in determining whether the claimant is disabled:
(1) whether the claimant is engaged in substantial gainful activity; (2) if
not, whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairment in the regulations; (4) if not, whether the claimant has the RFC
to perform her past relevant work; and (5) if not, whether, in light of the
claimant’s RFC, age, education and work experience, there are other jobs
the claimant can perform.
Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 870 (11th Cir. 2012) (per
curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)(f); Phillips
v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The
claimant bears the burden of proving the first four steps, and if the claimant does

10

so, the burden shifts to the Commissioner to prove the fifth step. Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999).
If the claimant appeals an unfavorable ALJ decision, the reviewing court
must determine whether the Commissioner’s decision to deny benefits was
“supported by substantial evidence and based on proper legal standards.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations
omitted); see 42 U.S.C. § 405(g). “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, 631 F.3d at 1178 (citations omitted). “In
determining whether substantial evidence exists, [the reviewing court] must view
the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986). The reviewing court “may not decide the facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].”
Id. When a decision is supported by substantial evidence, the reviewing court
must affirm “[e]ven if [the court] find[s] that the evidence preponderates against
the Secretary’s decision.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986).
Earley claims that the ALJ erred in this case by giving superior weight to a
non-examining medical expert than to the opinion of Earley’s long-standing
treating psychiatrist. The Commissioner asserts that the ALJ provided valid
reasons for the weight accorded the doctors’ opinions, that those findings are

11

supported by substantial evidence, and that the ALJ’s evaluation of their opinions
is entitled to deference.
The relevant social security regulations provide that medical opinions are
weighed by considering the following factors: 1) whether the source of the
opinion examined the claimant; 2) whether the source treated the claimant and, if
so, a) the length of the treatment relationship and the frequency of examination
and b) the nature and extent of the treatment relationship; 3) the supportability of
the opinion with relevant evidence and by explanations from the source; 4) the
consistency of the opinion with the record as a whole; 5) whether the opinion was
offered by a specialist about a medical issue related to his or her area of
specialty; and 6) any other factors which tend to support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(1)-(6); see also Nichols v. Comm’r, Soc. Sec.
Admin., No. 16-11334, 2017 WL 526038, at * 5 (11th Cir. Feb. 8, 2017) (citing 20
C.F.R. §§ 404.1527(c), 416.927(c)) (stating that “[i]n determining how much
weight to give a medical opinion, the ALJ considers such factors as the
examining or treating relationship, whether the opinion is well-supported, whether
the opinion is consistent with the record, and the doctor’s specialization”).
In the instant case, the ALJ provided an extensive review of the medical
evidence in his Decision. Based on this extensive review of the records and
testimony, the ALJ accorded “little weight” to Dr. Passman’s opinions stating:
The undersigned finds little weight to the opinions of Dr.
Passman, as his opinions are inconsistent with the medical
evidence of record including the opinions of Dr. Whitchard and
Dr. Davis. Additionally, Dr. Passman 's opinions are internally
inconsistent in Exhibit 6F. Dr. Passman notes a bunch of
marked limitation in social activities and concentration, but he

12

has only slight limitations in remembering instructions,
responding to supervisors, with no issues in completing simple
and repetitive tasks. Moreover, Dr. Passman 's opinions are not
consistent with his work history and his assigned GAF score of
60.
(Tr. 27).
Determination of whether a claimant is disabled from doing gainful work is
an issue reserved to the Commissioner, and a doctor’s opinion on that issue can
be disregarded. See Lowery v. Berryhill, Civ. A. No. 4:16-cv-00913-AKK, 2017
WL 1491274, at *3 (N.D. Ala. Apr. 26, 2017) (citing Pate v. Comm’r, Soc. Sec.
Admin., 678 F. App’x 833, 834 (11th Cir. 2017) (“the determination of whether an
individual is disabled is reserved to the Commissioner, and no special
significance will be given to an opinion on issues reserved to the
Commissioner.”)); see also Green v. Soc. Sec. Admin., 223 F. App’x 915, 923
(11th Cir. 2007) (holding that “the ALJ will evaluate a [physician’s] statement
[concerning a claimant’s capabilities] in light of the other evidence presented and
the ultimate determination of disability is reserved for the ALJ). In addition, a
physician’s opinion as to a claimant’s ability to work is not entitled to recognition
from an ALJ if the opinion is not supported by or consistent with the totality of the
evidence. Id. “In assessing whether a claimant is disabled, an ALJ must consider
the medical opinions in a case record together with the rest of the relevant
evidence received.” Chambers v. Comm’r of Soc. Sec., 662 F. App’x 869, 870
(11th Cir. 2016) (citing 20 C.F.R. § 404.1527(b)) (emphasis added). The ALJ is to
consider the claimant’s daily activities when evaluating the symptoms and
severity of an impairment. Id. at 871 (citing 20 C.F.R. § 404.1529(c)(3)(i)). “[T]he

13

more consistent an opinion is with the record as a whole, the more weight the
ALJ will give to that opinion.” Id. (citing 20 C.F.R. 404.1527(c)(4)).
Although the opinions of treating physicians are generally entitled to
substantial or considerable weight, the ALJ does not have to give a treating
physician’s opinion considerable weight if good cause is shown to the contrary.
See Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). The Eleventh
Circuit “has concluded ‘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.” Id. at 1240-41. Also, if the claimant’s own
testimony regarding the claimant’s daily activities contradicts the consulting
physician’s opinion, the ALJ’s decision not to give the physician’s opinion
considerable weight is not in error. See Chambers, 662 F. App’x at 872. Indeed,
“an ALJ may reject any medical opinion if the evidence supports a contrary
finding.” Nichols, 2017 WL 526038, at *5 (citing Sryock v. Heckler, 764 F.2d 834,
835 (11th Cir. 1985)). In this case, Dr. Passman opined that Earley had marked
impairments in activities of daily living and maintaining social functioning, yet
evidence in the record showed that he was able to take care of his activities of
daily living, went to the gym daily, was able to drive and did so, had fairly recently
attended and graduated from college, and had worked at various jobs. Dr.
Passman’s opinions were also contrary to the opinions of the other treating,
consultative, and reviewing physicians. Therefore, the Court finds that substantial
evidence supported the ALJ’s finding that Dr. Passman’s opinions that were

14

expressed in the Medical Source Statement were not in line with Earley’s own
testimony, Dr. Passman’s own reports, or the record as a whole.
Earley also claims that the ALJ erred by relying on the opinion of Dr. Davis,
the medical expert, who did not examine him. Earley seems to base his argument
on an implied assertion that the ALJ only relied on Dr. Davis’s opinion in making his
assessment of Earley’s mental RFC. Earley’s argument in this regard is not
accurate. The ALJ reviewed and discussed the findings and opinions of Dr.
Hagans, Dr. Whitchard and Dr. Duke concerning Earley’s mental limitations in
detail and gave great weight to the opinions offered by Dr. Whitchard and Dr.
Duke.2 The Eleventh Circuit has recognized that where substantial evidence

supports an ALJ’s decision to assign great weight to a non-examining
physician, even if it is greater weight than is given to a treating doctor, the ALJ
may permissibly do so. See Forsyth v. Comm’r, 503 F. App’x 892, 893 (11th Cir.
2013); see also 20 C.F.R. § 404.1527(c), (e); 56 Fed. Reg. at 36,936-37,
36,953, 36,969; Willis v. Comm’r of Soc. Sec., No. 3:09-CV-297-J-20MCR,
2010 WL 3245449, at *7 (M.D. Ala. Aug. 17, 2010) (affirming ALJ’s reliance on
non-examining physicians’ opinions despite conflict with examining physicians’
opinion). In this case, the ALJ gave great weight to Dr. Davis’s testimony
regarding Earley’s functioning and his opinion that Earley’s condition does not
meet a listing. He supported this finding by stating that Dr. Davis’s opinion was

2
The Court notes that even if the ALJ had relied totally on the opinion of Dr.
Davis, such reliance would not necessarily be in error. See Jones v. Colvin, CA
14-00247-C, 2015 WL 5737156, at *24 (S.D. Ala. Sept. 30, 2015), quoted in
Pettaway v. Colvin, CA 15-0640-C, 2017 WL 62649, at *7 (S.D. Ala. Jan. 5,
2017) (holding that “[i]n order to find that the ALJ’s RFC assessment is supported
by substantial evidence, … it is not necessary for the ALJ’s assessment to be
supported by the assessment of an examining or treating physician”).

15

consistent with the record as a whole and consistent with other medical source
statements. Based upon its review of Earley’s report of daily activities, his work
history, his complete medical history, and his educational history, as well as the
other medical records presented, the Court finds that the ALJ’s decision to
afford great weight to Dr. Davis’s opinion was based on substantial evidence
and was, thus, not in error.
CONCLUSION
It is well-established that it is not this Court’s place to reweigh the
evidence or substitute its judgment for that of the Commissioner. This Court is
limited to a determination of whether the ALJ’s decision is supported by
substantial evidence and based on proper legal standards. The Court finds that
the ALJ’s Decision that Earley is not entitled to benefits is supported by
substantial evidence and based on proper legal standards. Accordingly, it is
ORDERED that the decision of the Commissioner of Social Security denying
Plaintiff benefits be AFFIRMED.
DONE and ORDERED this the 6th day of October, 2017.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

16