Burford v. Berryhill
Order re: 1 Complaint, filed by William C Burford stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/13/18. (mpp) Copies to counsel
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
WILLIAM C. BURFORD,
Acting Commissioner of Social
CIVIL ACTION NO. 17-00163-B
Plaintiff William C. Burford (hereinafter “Plaintiff”) seeks
judicial review of a final decision of the Commissioner of Social
Security denying his claim for a period of disability, disability
insurance benefits, and supplemental security income under Titles
II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq.,
and 1381, et seq.
On April 11, 2018, the parties consented to have
the undersigned conduct any and all proceedings in this case. (Doc.
Thus, the action was referred to the undersigned to conduct
all proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
memoranda of the parties, it is hereby ORDERED that the decision of
the Commissioner be AFFIRMED.
Plaintiff filed his application for benefits on June 10, 2014,
alleging disability beginning November 15, 2011, based on “Manic
Depressive Illness, Bipolar I, Major Depressive Disorder, Attention
Deficit Hyperactivity Disorder, and Obsessive-compulsive Disorder.”
(Doc. 12 at 169, 187, 190).
Plaintiff’s application was denied and
upon timely request, he was granted an administrative hearing before
Administrative Law Judge Laura Robinson (hereinafter “ALJ”) on
November 30, 2015.
(Id. at 50).
Plaintiff attended the hearing
with his counsel and provided testimony related to his claims.
A vocational expert (“VE”) also appeared at the hearing and
(Id. at 77). On February 19, 2016, the ALJ
(Id. at 23).
The Appeals Council denied Plaintiff’s
request for review on March 23, 2017.
(Id. at 5).
ALJ’s decision dated February 19, 2016, became the final decision
of the Commissioner.
Having exhausted his administrative remedies, Plaintiff timely
filed the present civil action.
conducted on May 16, 2018.
Oral argument was
The parties agree that this
case is now ripe for judicial review and is properly before this
Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
The Court’s citations to the transcript in this order refer to the
pagination assigned in CM/ECF.
Issue on Appeal
Whether substantial evidence supports the
ALJ’s assignment of weight to the opinions of
Plaintiff’s treating physician?
III. Factual Background
Plaintiff was born on October 22, 1982, and was thirty-three
years of age at the time of his administrative hearing on November
(Doc. 12 at 187).
Plaintiff completed the eleventh grade
in school and obtained his GED.
(Id. at 56).
Plaintiff last worked from 2006 to 2011 as a millwright for a
as a welder.
Prior to that, from 2004 to 2005, he worked
(Id. at 56, 399).
Plaintiff testified that he can no longer work because of neck
and shoulder pain and headaches.
(Id. at 57).
medication and receives injections for pain.
He also reported that
he takes medication for depression and bipolar disorder.
medications have provided him some relief.
(Id. at 58-59).
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.
The Court’s review is limited to determining 1)
whether the decision of the Secretary is supported by substantial
evidence and 2) whether the correct legal standards were applied.2
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
may not decide the facts anew, reweigh the evidence, or substitute
its judgment for that of the Commissioner.
F.2d 1065, 1067 (11th Cir. 1986).
Sewell v. Bowen, 792
The Commissioner’s findings of
fact must be affirmed if they are based upon substantial evidence.
Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth
substantial evidence is defined as “more than a scintilla, but less
than a preponderance” and consists of “such relevant evidence as a
In determining whether substantial evidence exists,
a court must view the record as a whole, taking into account
evidence favorable, as well as unfavorable, to the Commissioner’s
Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir. 1986);
Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4 (S.D. Ala. June 14,
Statutory and Regulatory Framework
benefits must prove his or her disability.
20 C.F.R. §§ 404.1512,
Disability is defined as the “inability to engage in any
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
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); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).
evaluation process for determining if a claimant has proven his
20 C.F.R. §§ 404.1520, 416.920.
The claimant must first prove that he or she has not engaged
in substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments.
If, at the third step, the claimant
proves that the impairment or combination of impairments meets or
equals a listed impairment, then the claimant is automatically found
disabled regardless of age, education, or work experience.
claimant cannot prevail at the third step, he or she must proceed
to the fourth step where the claimant must prove an inability to
perform their past relevant work.
1005 (11th Cir. 1986).
Jones v. Bowen, 810 F.2d 1001,
At the fourth step, the ALJ must make an
assessment of the claimant’s RFC. See Phillips v. Barnhart, 357 F.
3d 1232, 1238 (llth Cir. 2004).
The RFC is an assessment, based on
all relevant medical and other evidence, of a claimant’s remaining
ability to work despite his impairment. See Lewis v. Callahan, 125
F. 3d 1436, 1440 (llth Cir. 1997).
If a claimant meets his or her burden at the fourth step, it
then becomes the Commissioner’s burden to prove at the fifth step
substantial gainful employment which exists in significant numbers
in the national economy, given the claimant’s residual functional
capacity, age, education, and work history.
Sryock v. Heckler, 764
F.2d 834, 836 (11th Cir. 1985). If the Commissioner can demonstrate
that there are such jobs the claimant can perform, the claimant
must prove inability to perform those jobs in order to be found
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing
Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
Substantial evidence supports the ALJ’s
assignment of weight to the opinions of
Plaintiff’s treating physician.
In his brief, Plaintiff argues that the ALJ erred in failing
to assign controlling weight to the opinions of his treating pain
management physician, Dr. Robert McAlister, M.D.
(Doc. 13 at 1).
The Government counters that the ALJ assigned the proper weight to
objective record evidence.
The Government further argues that
substantial evidence supports the RFC.
(Doc. 18 at 4).
reviewed the record at length, the Court finds that Plaintiff’s
claim is without merit.
As part of the disability determination process, the ALJ is
examining, and non-examining physicians.
In reaching a decision,
the ALJ must specify the weight given to different medical opinions
and the reasons for doing so.
See Winschel v. Commissioner of Soc.
Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
is reversible error.
The failure to do so
See Williams v. Astrue, 2009 U.S. Dist. LEXIS
12010, *4, 2009 WL 413541, *1 (M.D. Fla. 2009).
When weighing the opinion of a treating physician, the ALJ
must give the opinions “substantial weight,” unless good cause
exists for not doing so.
Costigan v. Commissioner, Soc. Sec.
Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4 (11th
Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of Soc. Sec.,
363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v. Heckler, 776
F.2d 960, 962 (11th Cir. 1985)).
The opinion of “a one-time
examining physician — or psychologist” is not entitled to the same
deference as a treating physician. Petty v. Astrue, 2010 U.S. Dist.
LEXIS 24516, *50, 2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010)
(citing Crawford, 363 F.3d at 1160).
Also, an ALJ is “required to
consider the opinions of non-examining state agency medical and
physicians and psychologists who are also experts in Social Security
Milner v. Barnhart, 275 Fed. Appx. 947,
“The ALJ may rely on opinions of non-examining
sources when they do not conflict with those of examining sources.”
Id. (citing Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir.
Whether considering the opinions of treating, examining, or
unsupported by the evidence of record.
F.3d 1232, 1240 (11th Cir. 2004).
Phillips v. Barnhart, 357
“Good cause may also exist where
a doctor’s opinions are merely conclusory, inconsistent with the
Hogan v. Astrue, 2012 U.S. Dist. LEXIS 108512, *8, 2012
WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the
opinion of any physician when the evidence supports a contrary
Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)
(per curiam) (citation omitted); Adamo v. Commissioner of Soc. Sec.,
365 Fed. Appx. 209, 212 (11th Cir. 2010) (The ALJ may reject any
medical opinion if the evidence supports a contrary finding.).
In the instant case, the ALJ found that Plaintiff has the
history of opioid dependence.3
(Doc. 12 at 25).
The ALJ also
determined that Plaintiff has the RFC to perform less than the full
range of light work with the following restrictions: Plaintiff is
limited to occasionally climbing, stooping, and crouching.
limited to occasional overhead reaching with the right arm.
limited to simple, routine, repetitive tasks; simple work-related
decisions; occasional interaction with supervisors, co-workers, and
the public; and occasional change in a routine work setting.
Based upon the testimony of the vocational expert, the ALJ
concluded that Plaintiff is not able to perform his past relevant
work but that he can perform other work such as inserting machine
operator, electrical accessories assembler, and mold preparer (all
light and unskilled).
(Id. at 42-43).
Thus, the ALJ found that
Plaintiff is not disabled.
As noted, supra, Plaintiff contends that the ALJ erred in
McAlister, his treating pain management physician. (Doc. 13 at 1).
Having reviewed the evidence at length, the Court is satisfied that
Plaintiff’s arguments in this case are directed to the ALJ’s
findings related to his physical impairments.
Court’s discussion focuses on those impairments.
The record shows that Dr. McAlister began treating Plaintiff
for pain management on July 14, 2015.
(Id. at 731, 790).
months later, on November 30, 2015, Dr. McAlister completed a
Clinical Assessment of Pain (CAP) form.
On the form, Dr. McAlister
opined that, as a result of Plaintiff’s cervical fusion surgery in
September 2014, Plaintiff’s pain was intractable and virtually
incapacitating; that physical activity would greatly increase his
pain and cause distraction from or abandonment of tasks for at least
two hours in an eight-hour workday; that Plaintiff could not perform
his previous work; that he would need injections and medication in
the future; and that he was restricted to no heavy lifting.
In response to the question inquiring as to whether
McAlister stated that he could not answer the question because he
“[did] not do disability exams.”
(Id. at 791).
assessment that Plaintiff was restricted from heavy lifting but
assigned little weight to the remainder of his opinions.
found that the limitations recounted by Dr. McAlister in the CAP
form were excessive and based on Plaintiff’s subjective complaints,
which were inconsistent with the medical evidence, and that Dr.
McAlister also failed to take into account Plaintiff’s diagnosed
(Id. at 41).
Having reviewed the record at
length, the Court finds that substantial evidence supports the ALJ’s
assignment of little weight to the majority of Dr. McAlister’s
First, the record shows that Dr. McAlister treated Plaintiff
from July to November 2015 for complaints of moderate to severe
neck pain, as well as head, wrist, elbow, arm, and shoulder pain.
During the four-month treatment period, Dr. McAlister administered
injections and prescribed pain medications, including Percocet and
(Id. at 707-31, 741-53, 790).
Dr. McAlister’s treatment
notes reflect that Plaintiff experienced some relief of symptoms
(Id. at 709, 713, 717, 743, 746, 749, 753).
The record also shows that, prior to Dr. McAlister’s treatment
in 2015, Plaintiff sought treatment in 2014 from Dr. George Corbett,
M.D., at Baldwin Bone and Joint.
An MRI taken on April 4, 2014,
showed a large extruded disc fragment causing some compression and
herniation of the C6-C7 disc with spinal stenosis.
(Id. at 496,
Dr. Corbett referred Plaintiff for injection therapy.
From July 2014 to January 2015, Plaintiff received treatment
from Dr. Jonathan Rainer at Coastal Neurological Institute for right
arm and shoulder pain.
(Id. at 542-70).
Dr. Rainer initially noted
tenderness over C5-6 and C6-7 with limited range of motion on the
right, full strength in upper extremities except 4/5 on the right,
normal reflexes, normal pulse, no clubbing, no cyanosis, no edema,
functional range of motion in all joints, and negative Romberg.
radiculitis, degenerative disc disease of the cervical spine, and
cervical stenosis, which he treated with injections and medication.
(Id. at 569-70).
Plaintiff continued to complain of pain, and, in
August 2014, Dr. Rainer referred Plaintiff to Dr. Edward Flotte,
M.D., for surgical evaluation.
(Id. at 565).
Dr. Flotte performed
cervical corpectomy/fusion surgery on September 25, 2014.
668, 684-90). At Plaintiff’s post-op visits in October and November
2014, Plaintiff continued to report pain, but Dr. Flotte noted that
Plaintiff was “in no acute distress,” “overall doing okay,” and
“doing well” after surgery, “with improved symptoms.”
(Id. at 684,
Dr. Flotte’s physical examination findings further noted
“no acute distress,” “no spinal deformity,” “normal posture and
gait,” “no weakness or numbness,” “no swelling,” and normal, full
strength in bilateral upper limbs, “full range of motion of all
joints,” and normal pulses with no clubbing, cyanosis, edema or
deformity in extremities.
(Id. at 686, 690).
Plaintiff’s post-op visits with Dr. Rainer in October and November
2014, Dr. Rainer noted that Plaintiff had some tenderness over the
trapezius and periscapular muscles but had “full strength” in upper
extremities bilaterally, no clubbing, no cyanosis, and no edema,
with full range of motion in all joints.
(Id. at 449-50, 555).
Plaintiff continued to complain of pain, and on March 4, 2015,
he sought treatment from neurosurgeon, Dr. Juan Ronderos, M.D., at
Pinnacle Brain and Spine Center, for neck and right upper extremity
(Id. at 668).
Dr. Ronderos’ physical examination findings
showed 5/5 muscle strength in upper extremities, with the exception
of 4/5 in right triceps, right brachioradialis, and right wrist;
normal grip; normal strength in lower extremities; normal muscle
tone in upper and lower extremities; intact sensation; normal
coordination; and normal gait and station.
(Id. at 670-71).
Dr. Ronderos observed that Plaintiff got in and out of his
chair smoothly and had no difficulty changing positions on the exam
(Id. at 670).
Dr. Ronderos further noted that “palpation
around the shoulders and rotator cuffs did not cause pain.”
intervertebral disc disorders, and cervical stenosis. (Id. at 671).
The following day, on March 5, 2015, Dr. Ronderos notified Plaintiff
that he was ending their doctor-patient relationship. (Id. at 667).
On that same date, Plaintiff presented to North Baldwin Infirmary
complaining of neck pain and a migraine and was treated with
medication and released.
(Id. at 624, 632-33).
examination findings on that occasion showed tenderness in neck
muscles with normal range of motion and normal range of motion in
extremities with no edema and no tenderness.
(Id. at 628-29).
On March 26, 2015, Plaintiff sought treatment from Dr. Patricia
Boltz, M.D., for complaints of migraine, neck, right shoulder, and
arm pain without relief from injections and medication.
reported that the neck surgery had helped some.
(Id. at 673).
Boltz noted that Plaintiff was seeking a new pain management doctor
because his previous doctors (Ronderos, Flotte, and Lee) refused to
provide him the pain medication that he was seeking.
Boltz’s physical examination findings included pain produced on
cervical range of motion, but normal gait and station, heel/toe
walk without difficulty, normal grip strength, no weakness, full
range of motion in lumbar spine, and negative straight leg raise.
(Id. at 674).
Dr. Boltz assessed cervical radiculopathy, cervical
myofascial pain, and opioid dependence.
opted not to treat Plaintiff further.
(Id. at 675).
From May to August 2015, Plaintiff saw Dr. Shawn Clarke, M.D.,
at Clark Neurosurgery for neck pain.
Dr. Clark’s initial physical
examination findings showed no acute distress, normal neck with no
extremities, limited range of motion in cervical spine on the right,
moderate cervical spasm, and tenderness over the right trapezius
muscle, but 5/5 motor strength and tone.
(Id. at 769-70).
cervicalgia, and spinal stenosis in cervical region.
(Id. at 770).
Because of Plaintiff’s continued complaints of neck pain, Dr.
Clark performed a second cervical fusion/discectomy surgery and
removal of hardware on June 24, 2015.
(Id. at 696, 761-66).
hospital notes from the surgery reflect that Plaintiff was “doing
well” post operatively, that he was demanding of nursing staff with
regard to pain medication, that he was caught leaving the floor
serval times to go to the parking lot to smoke cigarettes, and that
he was ambulating independently.
(Id. at 696).
His prognosis for
a full recovery from surgery was noted as “excellent,” while his
postoperative changes from fusion surgery with no residual or
recurrent stenosis or postoperative complication.
(Id. at 758).
reported symptom relief with injections and Percocet. (Id. at 754).
distress, full range of motion in extremities with
cyanosis, or edema, and normal strength, tone, and reflexes.
With the exception of mental health treatment, this is
the final treatment note in the record.
While there is no question that Plaintiff has been diagnosed
with cervical degenerative disc disease, a condition which has
herniated discs, Plaintiff’s medical records reflect a largely
successful treatment plan that has been adequate at controlling his
As detailed above, Plaintiff’s treating and examining
examination findings and improvement in symptoms with medication
and surgery, repeatedly noting “no acute distress,” “overall doing
gait,” “no weakness or numbness,” “no swelling,” full strength,
“full range of motion of all joints,” normal pulses, no clubbing,
cyanosis, edema, or deformity in extremities, intact sensation,
normal coordination, normal gait and station, in and out of his
chair smoothly, no difficulty changing positions on exam table,
heel/toe walk without difficulty, no weakness, “doing well” post
operatively, and ambulating independently.4
(Id. at 449-50, 555,
564-70, 670-74, 684, 686-90, 696).
suffered from opioid and substance abuse and may have been drug
(Id. at 464-66, 667, 675, 678, 696, 761).
In addition, the evidence of Plaintiff’s activities of daily
living reflects that he takes care of his own personal needs, that
he takes care of his children and pets, that he cooks, helps with
chores, does household repairs, mows the lawn and gardens, does
As detailed above, even Dr. McAlister noted that Plaintiff’s
medications were providing some relief from symptoms. (Doc. 12 at
709, 713, 717, 743, 746, 749, 753).
This evidence supports the ALJ’s finding that Plaintiff’s
complaints of pain, which were overstated in comparison to the
objective findings, may be have been motivated by a desire to obtain
pain medication. (Doc. 12 at 41-42). Plaintiff does not challenge
the ALJ’s credibility finding.
welding, drives, shops, attends church, and visits family.
55, 390-94, 407-10).
In sum, the foregoing substantial evidence reflects, overall,
successful treatment for Plaintiff’s cervical degenerative disc
adequate control of symptoms and is inconsistent with the excessive
limitations expressed in the CAP form completed by Dr. McAlister.
Therefore, the ALJ had good cause to discredit the majority of Dr.
The Court further finds, based on the evidence detailed above,
that substantial evidence supports the ALJ’s finding that Plaintiff
has the RFC to perform a range of light work, with the stated
Indeed, Plaintiff has failed to show that any
limitations caused by his impairments exceed the RFC and are not
accommodated by the RFC and its stated restrictions.
For each of
these reasons, Plaintiff’s claim must fail.7
As stated, the ALJ found that Plaintiff has the RFC to perform
less than the full range of light work with the following
restrictions: Plaintiff is limited to occasionally climbing,
stooping, and crouching.
He is limited to occasional overhead
reaching with the right arm.
He is limited to simple, routine,
repetitive tasks; simple work-related decisions; occasional
interaction with supervisors, co-workers, and the public; and
occasional change in a routine work setting. (Doc. 12 at 27).
Although Plaintiff has cited evidence in the record which he
claims supports a finding that he is disabled, that is, at best, a
contention that the record evidence supports a different finding.
That is not the standard on review. The issue is not whether there
is evidence in the record that would support a different finding,
but whether the ALJ’s finding is supported by substantial evidence.
consideration of the administrative record and memoranda of the
parties, it is hereby ORDERED that the decision of the Commissioner
security income be AFFIRMED.
DONE this 13th day of September, 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
See Figueroa v. Commissioner of Soc. Sec., 2017 U.S. Dist. LEXIS
181734, *15-16, 2017 WL 4992021, *6-7 (M.D. Fla. Nov. 2, 2017)
(“Although Plaintiff cites to certain test results, notes, and
physical therapy findings as support for her contention that ‘there
were objective medical findings that support the doctor’s opinions
about [her] limitations’ . . ., this is, at best, a contention that
the record could support a different finding. This is not the
standard on review. The issue is not whether a different finding
could be supported by substantial evidence, but whether this finding
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