Barnes v. Berryhill

Filing 21

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 1/8/18. (srr)

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

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CIVIL ACTION NO. 17-CV-201-N

MEMORANDUM OPINION AND ORDER
Plaintiff Cynthia S. Barnes 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.

Upon

consideration of the parties’ briefs (Docs. 14, 15) and those portions of the
administrative record (Doc. 13) (hereinafter cited as “(Tr. [page number(s) in lowerright corner of transcript])”) relevant to the issues raised, and with the benefit of
oral argument held December 7, 2017, the Court finds that the Commissioner’s final
decision is due to be AFFIRMED under sentence four of § 405(g).1

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. 18, 19).

1

1

I.

Background

On May 13, 2014, Barnes filed applications for a period of disability, DIB, and
SSI with the Social Security Administration (“SSA”), alleging disability beginning
May 4, 2012.2 After her applications were initially denied, Barnes requested a
hearing before an Administrative Law Judge (“ALJ”) with the SSA’s Office of
Disability Adjudication and Review. A hearing was held January 25, 2016, and on
June 3, 2016, the ALJ issued an unfavorable decision on Barnes’ applications,
finding her “not disabled” under the Social Security Act and thus not entitled to
benefits. (See Tr. 12-37).
On April 6, 2017, the Commissioner’s decision on Barnes’ applications
became final when the Appeals Council for the Office of Disability Adjudication and
Review denied Barnes’ request for review of the ALJ’s decision. (Tr. 1 – 6). Barnes
subsequently filed this action under § 405(g) 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

“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).

2

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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.”).
II.

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)).

3

“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.”).3 “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

Nevertheless, “ ‘[t]here is no burden upon the district court to distill every potential argument that
could be made based on the materials before it…’ ” Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1239
(11th Cir. 2012) (per curiam) (quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995) (en banc)) (ellipsis added). 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); 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’).”); 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).

3

4

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)).

This Court

“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

5

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
curiam) (unpublished).4
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).5

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.”).
5 The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual steps of
this five-step sequential evaluation.
4

6

“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 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

7

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
quotation omitted).
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.
III.

Analysis

At Step One, the ALJ determined that Barnes met the applicable status
requirements through December 31, 2015, and that she had not engaged in
substantial gainful activity since the alleged disability onset date, May 4, 2012. (Tr.
14).

At Step Two, the ALJ determined that Barnes had the following severe

impairments: fibromyalgia, obesity, osteoarthritis/degenerative joint disease of the

8

knee, carpal tunnel syndrome, diabetes mellitus, degenerative disc disease, and
peripheral neuropathy. (Tr. At 15). At Step Three, the ALJ found that Barnes did
not have an impairment or combination of impairments that met or equaled the
severity of one of the specified impairments in the relevant Listing of Impairments.
(Tr. 23-24).
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).

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The ALJ determined that Barnes had the RFC “to perform a reduced range of
light work as defined in 20 CFR 404.1567(b) and 416.967(b)[,6]” subject to the
following limitations: “…[T]he Claimant can stand for one hour at a time, or six
hours total in an eight hour workday; the Claimant can walk for one hour at a time,
or six hours total in an eight-hour workday; the Claimant can never climb ladders,
ropes, or scaffolds; the Claimant can occasionally climb ramps or stairs; the
Claimant can occasionally balance, stoop, and crouch; the Claimant can never kneel
or crawl; the Claimant can never push and/or pull foot controls; the Claimant can
frequently reach, handle, and finger; the Claimant can frequently push and/or pull
with her upper extremities; and the Claimant can tolerate no exposure to
unprotected heights or hazardous machinery.” (Tr. at 24-34). Based on this RFC,
the ALJ determined that Barnes was capable of performing past relevant work as
an accounts receivable clerk and office manager. (Tr. at 34-36).
Barnes’ lone claim is that the ALJ's finding in her RFC evaluation that
Barnes can perform light work is not supported by substantial evidence. A
claimant’s RFC is “an assessment of an individual's ability to do sustained workrelated physical and mental activities in a work setting on a regular and continuing
basis.” SSR 96-8p, 1996 WL 374184, at *1. It is an “administrative assessment of
the extent to which an individual's medically determinable impairment(s), including
any related symptoms, such as pain, may cause physical or mental limitations or

“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. See also 20 C.F.R. §§ 404.1567, 416.967.

6

10

restrictions that may affect his or her capacity to do work-related physical and
mental activities.” SSR 96-8p, 1996 WL 374184, at *2. It represents the most, not
the least, a claimant can still do despite his or her limitations. 20 C.F.R. §
404.1545; SSR 96-8p, 1996 WL 374184, at *2 (emphasis added). The RFC
assessment is based on “all of the relevant medical and other evidence.” 20 C.F.R. §
404.1545(a)(3). In assessing a claimant's RFC, the ALJ must consider only
limitations and restrictions attributable to medically determinable impairments,
i.e., those which are demonstrable by objective medical evidence. SSR 96-8p, 1996
WL 374184, at *2. Similarly, if the evidence does not show a limitation or restriction
of a specific functional capacity, the ALJ should consider the claimant to have no
limitation with respect to that functional capacity. Id. at *3. The ALJ is exclusively
responsible for determining an individual’s RFC. 20 C.F.R. § 404.1546(c).
Barnes makes three arguments in support of her position that the ALJ’s RFC
determination was not based on substantial evidence. First, Barnes argues that
ALJ incorrectly identified inconsistences in Dr. Fontana’s opinions. Second, Barnes
argues that her hearing testimony was inaccurately depicted with regard to her
activities and limitations. Third, Barnes contends that the ALJ cherry picked
Barnes’ limitations. The undersigned addresses each argument below.
A.

ALJ’s Evaluation of Dr. Fontana’s Opinion

In determining Barnes’ RFC, the ALJ considered the medical opinions and
records of a number of treating and/or examining physicians. Barnes’ arguments
focus on the evaluation of Dr. Fontana’s opinion. The ALJ explained:

11

The undersigned has assigned partial evidentiary weight to the
findings, conclusions, and opinions of the examining orthopedic
surgeon, Dr. Andre J. Fontana, as set out in his narrative report and in
the MSS[7] in Exhibit 14F. The undersigned has relied upon and given
great weight to Dr. Fontana’s opinion in the January 20, 2016 MSS to
the extent they are consistent with his own physical examination
findings for the claimant and with the other objective medical evidence
of record. For example, Dr. Fontana’s opinions regarding the claimant’s
abilities to lift, carry, sit, stand, and walk are consistent with and
supported by his clinical examining findings of limited range of motion
in the lumbar spine, decreased sensation in the bottom of the feet, and
some popping and swelling in the right knee, but are also supported by
his clinical exam findings of good range of motion in the joints of the
upper extremities, and good range of motion in the joints of the lower
extremities, as well as being consistent with the objected diagnostic
imaging showing only mild degenerative disc disease. Dr. Fontana’s
opinion that the claimant does not require the use of a cane to
ambulate is given great weight because it is consistent with and
supported by the objective medical evidence of record.
However, the undersigned must give Dr. Fontana’s opinion in the MSS
regarding the claimant’s postural and manipulative limitations lesser
weight because they are not consistent with or supported by his clinical
examination findings, with the other objective medical evidence of
record, or with the evidence of the claimant’s activities of daily living.
For example, although Dr. Fontana’s physical examination of the
claimant revealed that her grip strength was intact, he limited her to
no more than occasional handling, fingering, and feeling. This
limitation is not consistent with Dr. Brooks’ exam findings in August
2014, and is excessive when compared to Dr. Fontana’s own exam
findings indicating grip and sensory were intact in her hands and that
she had good range of motion in her fingers, wrists, elbows, and
shoulders. Additionally, Dr. Fontana noted that EMG[8] and nerve
conduction studies of the claimant’s upper extremities noted only mild
carpal tunnel syndrome in the right wrist and that the claimant had
only complained of bilateral hand numbness for one month. Dr.
Fontana also limited the claimant to occasional reaching and
occasional pushing/pulling with her hands, but he noted on physical
examination of the claimant that she had good range of motion in the
fingers, wrists, elbows, and shoulders. Additionally, lesser weight has
been given to Dr. Fontana’s opinions regarding the claimant’s postural
activities because his opinions are internally inconsistent. Dr. Fontana

7
8

“MSS” is an acronym for Medical Source Statement.
”EMG” is a reference to electromyography.

12

opined that the claimant could stand and walk for six hours each
during an eight-hour workday, which is consistent with and supported
by the clinical examination findings and the results of objective
diagnostic imaging. However, Dr. Fontana also opined that the
claimant could never balance, which is inconsistent with his findings
regarding the claimant’s abilities to stand and walk for prolonged
periods of time. Balance is an intrinsic part of standing and walking.
To say that one can stand and walk but can never balance is wholly
inconsistent. Dr. Fontana’s opinions that the [Barnes] can never climb
stairs and ramps and never balance, stoop, and crouch is inconsistent
with x-rays showing only mild degenerative disc disease and with his
own objective exam findings of good range of motion of both hips, both
knees, both ankles, and feet. Moreover, the limitations are generally
inconsistent with his opinion that the claimant can do all the activities
listed on page 7 of the MSS. The postural and manipulative limitations
Dr. Fontana assigned the claimant are also excessive compared to his
report of the claimant’s activities of daily living. For example, in his
narrative report, Dr. Fontana noted that the claimant cooked and
drove daily, that she cleaned ‘3/7 days,’ and that she walked one block
daily.
(Doc. 13 at 32).
Barnes contends that the inconsistencies identified by the ALJ are not
inconsistencies, and points to evidence in the record that would support an
alternate conclusion. (Doc. 13 at 6). Specifically, Barnes argues:
The Administrative Law Judge stated that Dr. Fontana's opinion that
the Plaintiff can never balance, stoop, and crouch is inconsistent with
mild x-rays and with his own objective exam findings. Tr. at 29.
However, in his physical examination report, Dr. Fontana stated that
the Plaintiff had decreased sensory in the bottom of both feet with poor
squatting and popping and swelling of the right knee. This would limit
the Plaintiff's ability to balance, stoop, and crouch. Dr. Fontana's
determination that the Plaintiff should never balance, stoop, or crouch
is not inconsistent with his own examination findings.
Dr. Fontana's findings were also consistent with the medical evidence
of record. Plaintiff has received treatment from Victory Health Center
since 2010 for left lateral chest wall pain, diabetes mellitus
uncontrolled, hypertension, hyperlipidemia, hypothyroidism, sinusitis,
neuropathy, chronic pain, fibromyalgia, and sleep apnea. Tr. at 300-

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377. On June 28, 2012, Dr. Robert Lightfoot completed an application
for disability access parking privileges. Tr. at 373. Dr. Lightfoot stated
that the Plaintiff was severely limited in her ability to walk due to an
arthritis, neurological, or orthopedic condition. Id. On December 14,
2015, Plaintiff's treating physician, Dr. Robert Lightfoot prescribed the
Plaintiff a cane and stated the cane was medically necessary due to her
diagnoses of diabetes with neuropathy, fibromyalgia, and chronic low
back pain. Tr. at 372.
Plaintiff was evaluated in a consultative examination on August 14,
2014 by Dr. James Brooks. Tr. at 291-294. Dr. Brooks noted that the
Plaintiff had decreased forward flexion of her spine. Id. Plaintiff had a
normal gait but walked with care with a cane. Id. Plaintiff could walk
without the cane but walked slowly. Id. Plaintiff could do a partial
squat. Id. Plaintiff had decreased sensation in her right lateral thigh,
right lateral calf, and bottom of her right foot. Id. Plaintiff's reflexes
were 2 out of 4 throughout the examination. Id. Plaintiff was
diagnosed with complaints of chronic low back pain with degenerative
disc disease, adult onset diabetes mellitus, and incontinence of urine.
Id. Dr. Brooks stated that Plaintiff's exam was consistent with
radiculopathy from degenerative disc disease. Id. Dr. Brooks opined
that the Plaintiff may be a candidate for epidural injection and/or back
surgery. Id. Dr. Brooks stated that with the right medical care,
Plaintiff could return to work. Id.
(Doc. 14 at 5-6). Barnes’ contentions are not persuasive arguments that the ALJ’s
RFC determination was not supported by substantial evidence. Rather, Barnes has
argued that a different determination may have been reached had the ALJ
considered the record evidence in an alternative manner.
As quoted above, the ALJ explained why certain weights were attributed to
Dr. Fontana’s opinions, outlined contradictions, and explained her findings. Though
Barnes argues that Dr. Fontana’s opinions were consistent, the ALJ articulated
reasons why she determined they were not and resolved those inconsistencies. The
question before this Court is not whether an alternative determination may be
supported by the record, but whether the decision reached was supported by

14

substantial evidence. See Ingram, 496 F.3d at 1260. “‘Even if the evidence
preponderates against the [Commissioner]’s factual findings, we 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)). Even if medical
records and opinions, combined with Barnes’ testimony may support an alternative
determination, there remains substantial evidence within the record on which the
ALJ’s determination was based. See Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir.2005) (a reviewing court “may not decide facts anew, reweigh the evidence, or
substitute [its] judgment for that of the Commissioner.”). Further, the ALJ
specifically articulated the rationale behind his determination. Additionally, to the
extent that Barnes disagrees with the ALJ’s evaluation of Dr. Brooks’ opinion, such
disagreement does not persuade the court that the RFC determination lacked
substantial evidence. As a result, Barnes’ claim of error is without merit.
B.

Description of Barnes’ Hearing Testimony and Cherry Picking
of Limitations

Barnes contends, “…[The ALJ] used much of the Plaintiff’s testimony at the
hearing and comments in the disability report regarding her daily activities in an
attempt to establish that Plaintiff could perform the physical requirements of light
work. However, the evidence does not provide a firm basis that Plaintiff has the
ability to perform the requirements of light work. The Administrative Law Judge
focused solely on certain comments to make it appear that she was capable of
performing much more in the way of physical activity that what the Plaintiff

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actually testified to during the administrative hearing.” (Doc. 14 at 7).
Specifically, Barnes cites the following portion of the ALJ’s decision:
The claimant’s ability to frequently handle and finger is consistent
with and supported by Dr. Fontana’s conclusion that the claimant has
only “mild” carpal tunnel syndrome of the right wrist, as well as by the
fact that the claimant has reported that she plays computer games
online daily (Exhibit 3E) and she completed her own forms (Exhibits
3E, 4E, and 5E) with neat penmanship. (Exhibit 1A). The claimant
also reported that she performs volunteer services for a veteran’s group
by taking phone calls at home, that she does mopping, laundry, and
dishes, and that she drives an automobile. These activities suggest
adequate functional use of her hands.
(Doc. 13 at 33, Tr. 29). Upon review of this portion of the decision, though perhaps a
citation is missing, it does not appear the ALJ was referencing Barnes’ hearing
testimony. Rather, the ALJ appears to be addressing Exhibits 1A, 3E, 4E, and 5E,
which are forms completed by Barnes, including a function report, two fatigue
questionnaires, and correspondence from Barnes.
At the hearing, Barnes reported that she had stopped completely, modified
her performance of, or needed more assistance or breaks during these activities. Tr.
at 56-58. For example, the ALJ noted that Barnes “testified that she now mops her
floor from a seated position on her walker, but that she was able to mop her floor
while standing on her feet until about four or five months prior to the hearing.
[Barnes] also testified that she was the executive director of the veterans group
until a little over one year ago and that, as executive director, she had an office and
would go in one day a month to provide assistance. She further testified that she
was still going out into the field to assist homeless veterans and working in
coordination with law enforcement to increase awareness of veterans’ specific needs

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until a year and a half ago. She stated that she provided eight hours of volunteer
service the month prior to the hearing.” (Doc. 13 at 37, Tr. at 33).
Again, it is not this Court’s task to re-weigh the evidence. While the ALJ took
Barnes’ testimony into consideration, this was not the only evidence upon which she
made her RFC determination. Barnes’ testimony may be open to interpretation, but
it is not for this Court to interpret that testimony in a different manner.
C.

“Cherry picking” of Limitations

Barnes’ argument that the ALJ “cherry picked” Barnes’ limitations is another
attempt to have this Court improperly re-weigh the evidence. Social Security Ruling
96-8p requires that the ALJ include in her RFC assessment “a discussion of why
reported symptom-related functional limitations and restrictions can or cannot
reasonably be accepted as consistent with the medical and other evidence.” SSR 968p, 1996 WL 374184 (July 2, 1996). The ALJ wrote a thorough opinion, explained
her reasoning, provided justification for why certain evidence was relied upon, and
resolved the conflicts in the evidence.
Barnes has failed to identify medical opinions, records, or testimony that the
ALJ failed to consider. Rather, Barnes contends that the ALJ’s view of the evidence
before her and resolution of the conflicts within that evidence was incorrect. As the
Court found with regard to Barnes’ first argument, Even if medical records and
opinions,

combined

with

Barnes’

testimony

may

support

an

alternative

determination, there remains substantial evidence within the record on which the
ALJ’s determination was based. See Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th

17

Cir. 2005) (a reviewing court “may not decide facts anew, reweigh the evidence, or
substitute [its] judgment for that of the Commissioner.”).
Upon consideration, the Court finds that the assessment made by the ALJ
was supported by substantial evidence. Accordingly, the Court OVERRULES
Barnes’ lone claim of reversible error and finds that the Commissioner’s final
decision denying her benefits is due to be AFFIRMED.
IV.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued June 3, 2016, denying Barnes’ 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 8th day of January 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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