Anderson v. Berryhill
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 5/15/2018. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
performing the duties and functions not :
reserved to the Commissioner of
MEMORANDUM OPINION AND ORDER
Plaintiff Jennifer Anderson 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 denying her claims for a period of disability, disability insurance benefits, and
supplemental security income. 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. 14 (“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. 16 (order of
reference)). Upon consideration of the administrative record, Plaintiff’s brief, the
Commissioner’s brief, and the parties’ arguments at the May 9, 2018 hearing before the
See https://www.ssa.gov/agency/commissioner.html (last visited, April 17, 2018,
undersigned, the Court concludes that the Commissioner’s decision denying benefits
should be affirmed.2
I. Procedural Background
Plaintiff filed applications for a period of disability, disability insurance benefits,
and supplemental security income on April 24, 2014, alleging disability beginning on
April 6, 2014. (See Tr. 148-55.) Anderson’s claims were initially denied on June 24,
2014 (Tr. 92-101) and, following Plaintiff’s August 12, 2014 written request for a hearing
before an Administrative Law Judge (“ALJ”) (see Tr. 104-05), a hearing was conducted
before an ALJ on November 16, 2015 (Tr. 44-63). On August 29, 2016, the ALJ issued
a decision finding that the claimant was not disabled and, therefore, not entitled to a
period of disability, disability insurance benefits, or supplemental security income. (Tr.
22-38.) More specifically, the ALJ proceeded to the fifth step of the five-step sequential
evaluation process and determined that Anderson retains the residual functional
capacity to perform those light jobs identified by the vocational expert (“VE”) during the
administrative hearing (compare id. at 37 with Tr. 60-61). On October 11, 2016, the
Plaintiff appealed the ALJ’s unfavorable decision to the Appeals Council (Tr. 145);; the
Appeals Council denied Anderson’s request for review on July 26, 2017 (Tr. 1-3). Thus,
the hearing decision became the final decision of the Commissioner of Social Security.
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 14 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
Plaintiff alleges disability due to affective disorder, personality disorder, obesity,
diabetes mellitus, back and hip pain, and right-sided weakness. The Administrative Law
Judge (ALJ) made the following relevant findings:
The claimant has the following severe impairments: affective
disorder, personality disorder, obesity, and diabetes mellitus (20
CFR 404.1520(c) and 416.920(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), except that she cannot climb ladders, ropes, or scaffolds;;
can occasionally climb ramps and stairs;; can occasionally stoop,
kneel, crouch, and crawl;; can have no exposure to unprotected
heights/hazardous machinery;; can perform no commercial driving;;
can have occasional exposure to chemicals, fumes, odors, and
gases;; is limited to simple routine tasks;; and can have occasional
interaction with the public.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
The claimant was born on June 8, 1970, and was 43 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
The claimant has at least a high school education and is able
to communicate in English (20 CFR 404.1564 and 416.964).
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-
41 and 20 CFR 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can
perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the
Social Security Act, from April 6, 2014, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. 24, 28, 29, 36 & 37 (emphasis in original)).
II. Standard of Review and Claims on Appeal
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (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
Impairments in the regulations;; (4) if not, whether the claimant has the
RFC to perform h[is] 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. Commissioner of Social Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9,
2012)3 (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, at the fourth step, of proving that she is unable to perform
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating
whether the claimant has met this burden, the examiner must consider the following four
factors: (1) objective medical facts and clinical findings;; (2) diagnoses of examining
physicians;; (3) evidence of pain;; and (4) the claimant’s age, education and work history.
Id. at 1005. Although “a claimant bears the burden of demonstrating an inability to return
to her past relevant work, the [Commissioner of Social Security] has an obligation to
develop a full and fair record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
(citations omitted). If a plaintiff proves that she cannot do her past relevant work, as
here, it then becomes the Commissioner’s burden—at the fifth step—to prove that the
plaintiff is capable—given her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy. Phillips,
supra, 357 F.3d at 1237;; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert.
denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000);; Sryock v. Heckler, 764
F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform those light jobs
identified by the VE during the administrative hearing, is supported by substantial
evidence. Substantial evidence is defined as more than a scintilla and means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).
“In determining whether substantial evidence exists, we 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).4
Courts are precluded, however, from “deciding the facts anew or re-weighing the
evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per
curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “’[e]ven if
the evidence preponderates against the Commissioner’s findings, [a court] must affirm if
the decision reached is supported by substantial evidence.’” Id. (quoting Crawford v.
Commissioner of Social Sec., 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, Anderson asserts two reasons the Commissioner’s
decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1)
the ALJ committed reversible error in failing to find her back and hip pain and right-sided
weakness to be severe impairments;; and (2) the ALJ committed reversible error in
failing to assign controlling weight to the opinions of her treating physician, Dr. Juanita
Whether the ALJ Committed Reversible Error in Failing to Find
Plaintiff’s Back and Hip Pain and Right-Sided Weakness to be Severe
Impairments. In her brief, Plaintiff points to evidence in the administrative record
regarding her back and hip pain and right-sided weakness (see Doc. 9, at 3-5) and
contends that the ALJ erred to reversal in failing to find that these impairments were
severe impairments (see id. at 2-3 & 6). And, looking at the ALJ’s decision, there can be
little question but that the ALJ specifically determined that Plaintiff’s back and hip pain
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
and her right-sided weakness were non-severe impairments. (See Tr. 24-28 (specifically
finding “no medically determinable impairment related to any musculoskeletal condition,
including the back or hip” and also noting that while Anderson may have had some
mild right-sided weakness in June of 2014, which even her treating doctor identified as
“subjective,” the “objective treatment record failed to document the claimant’s ongoing
difficulty with weakness and reduced strength.”)). Thus, the question for this Court
becomes whether the ALJ reversibly erred in failing to find these identified impairments
to be severe impairments.
A severe impairment is an impairment or combination of impairments that
significantly limits the claimant’s physical or mental ability to do basic work activities. 20
C.F.R. § 404.1520(c). The Commissioner’s regulations define basic work activities as
the abilities and aptitudes to do most jobs and in analyzing step two of the sequential
evaluation process, the Commissioner considers a claimant’s “(1) Physical functions
such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling;; (2) Capacities for seeing, hearing, and speaking;; (3) Understanding, carrying
out, and remembering simple instructions;; (4) Use of judgment;; (5) Responding
appropriately to supervision, co-workers and usual work situations;; and (6) Dealing with
changes in a routine work setting.” 20 C.F.R. § 404.1522(b). “Step two is a threshold
inquiry.” McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). Only claims based
on the most trivial impairments may be rejected, and an impairment is not severe only if
the abnormality is so slight and its effect so minimal that it would clearly not be expected
to interfere with the individual’s ability to work. Id. A claimant need only demonstrate
that her impairment is not so slight and its effect not so minimal. Id.
In this case, the ALJ concluded that Anderson’s back and hip pain and right-
sided weakness were non-severe (Tr. 24-28). Plaintiff argues that substantial evidence
does not support the ALJ’s step two finding in this regard (see Doc. 9, at 3-5). However,
even if the Court agreed with Plaintiff on this point, the law in this Circuit dictates that
she would not be entitled to a remand of this action. When the ALJ finds at least one
severe impairment, see Tuggerson-Brown v. Commissioner of Social Security, 572
Fed.Appx. 949, 951 (11th Cir. Jul. 24, 2014) (“[W]e have recognized that step two
requires only a finding of ‘at least one’ severe impairment to continue to the later
steps.”),5 and then gives full consideration to the consequences of all of the claimant’s
impairments, in combination, on her ability to work at later stages of the analysis,6 see,
e.g., Tuggerson-Brown, 572 Fed.Appx. at 951 (recognizing that the ALJ is “required to
consider all impairments, regardless of severity, in conjunction with one another in
performing the latter steps of the sequential evaluation [process].”), any error at step
The ALJ did that in this case. (See Tr. 24 (“The claimant has the following
severe impairments: affective disorder, personality disorder, obesity, and diabetes
“At steps three, four, and five, the ALJ considers the claimant’s entire medical
condition, including impairments that are not severe at step two.” Delia v. Commissioner of
Social Security, 433 Fed.Appx. 885, 887 (11th Cir. Jul. 14, 2011), citing Jamison v. Bowen, 814
F.2d 585, 588 (11th Cir. 1987);; see also Tuggerson-Brown, supra, 572 Fed.Appx. at 951 (“While
the ALJ did not need to determine whether every alleged impairment was ‘severe,’ he was
required to consider all impairments, regardless of severity, in conjunction with one another in
performing the latter steps of the sequential evaluation [process].”);; Sanchez v. Commissioner
of Social Security, 507 Fed.Appx. 855, 858 (11th Cir. Feb. 8, 2013) (“Before reaching step four
[and step five], the ALJ must assess the claimant’s RFC—which is the most work the claimant
can do despite her physical and mental limitations—by considering all of the relevant medical
and medically determinable impairments, including any such impairments that are not ‘severe.’
In assessing the RFC, the ALJ must consider the claimant’s ability to meet the physical, mental,
sensory, and other requirements of work.” (citations omitted;; emphasis supplied)).
two is harmless and is not cause for reversal, see, e.g., Hearn v. Commissioner, Social
Security Admin., 619 Fed.Appx. 892, 895 (11th Cir. Jul. 31, 2015) (finding any step two
error harmless where the ALJ “properly noted that he considered [the claimant’s]
impairments in the later steps [of the sequential evaluation process].”);; Gray v.
Commissioner of Social Security, 550 Fed.Appx. 850, 853-54 (11th Cir. Dec. 30, 2013)
(“Here, we need not consider whether substantial evidence supports the ALJ’s
conclusion at step two—that Gray’s cervical spine impairment was not a severe
impairment—because even if there was error, it would be harmless. In assessing Gray’s
RFC, the ALJ found that Gray had severe impairments and that the step two test was
satisfied, and then specifically considered and discussed the symptoms that Gray
alleged stemmed from a cervical spine impairment elsewhere in the five-step sequential
process. . . . The ALJ thus performed the analysis that would have been required had
he determined a cervical spine impairment was severe at step two.”).
Stated somewhat differently, this Court need not consider whether substantial
evidence supports the ALJ’s step two decision—that Anderson’s back and hip pain and
right-sided weakness are not severe impairments—because any error in this regard is
harmless given the ALJ identified severe impairments and proceeded to the remaining
steps in the sequential evaluation process, giving full consideration to the
consequences of all of Plaintiff’s impairments (both severe and non-severe) on her
ability to work at later stages of the analysis.7 Although by no means the entirety of the
The ALJ also specifically evaluated whether Anderson had an impairment or
combination of impairments that met a listed impairment (see Tr. 28), which is a sufficient
enough statement “to demonstrate that the ALJ considered all necessary evidence.” Tuggerson-
Brown, supra, 572 Fed.Appx. at 952, citing Wilson v. Barnhart, 284 F.3d 1219, 1224-25 (11th
ALJ’s later-stage analysis, the following language demonstrates that the ALJ considered
all of Anderson’s impairments—even those not specifically found to be severe—in
reaching both the remaining steps of the sequential evaluation process (that is, steps 3-
5) and the ultimate conclusion that Plaintiff is not disabled:
Medical expert Ari B. Magill, M.D., a neurologist, completed a
medical interrogatory in which he cited the claimant’s lower back pain with
decreased range of motion in the lumbosacral spine according to physical
therapy notations and right hip pain with painful range of motion of the
extremities. Dr. Magill opined that no impairment established by the
medical evidence, either combined or separately, met or equaled any
impairment described in the Listing of Impairments.
Dr. Magill completed a medical source statement of ability to do work-
related activities (physical), in which he concluded that the claimant could
continuously lift and/or carry up to twenty pounds . . . . In comments, Dr.
Magill cited the claimant’s back and hip pain, with physical therapy
assessment showing reduced range of motion of the lumbosacral spine.
Dr. Magill further opined that the claimant could sit, stand, and walk for
eight hours at one time and over the course of an eight-hour workday.
According to Dr. Magill, the claimant could continuously reach, handle,
finger, feel, and push/pull with both hands and could continuously operate
foot controls bilaterally. Dr. Magill also indicated that the claimant could
frequently climb, stoop, kneel, crouch, and crawl and could continuously
(Tr. 32;; see also Tr. 31 (ALJ’s discussion of Anderson’s right-sided weakness within the
context of her RFC assessment);; Tr. 35-36 (ALJ’s consideration of Anderson’s
symptoms in determining her RFC)). In short, therefore, this Court finds no reversible
error with respect to Anderson’s first assignment of error because the record
demonstrates that the ALJ properly considered all of Anderson’s impairments, including
those she found to be non-severe (that is, her hip and back pain and her right-sided
weakness), in reaching the conclusion that Plaintiff was not disabled. See, e.g.,
Tuggerson-Brown, supra, 572 Fed.Appx. at 952.
Whether the ALJ Erred in Failing to Assign Controlling Weight to the
Medical Opinions/Statements of Plaintiff’s Treating Physician, Dr. Juanita Lopez.
Plaintiff’s only other assignment of error is that the ALJ failed to give controlling weight
to the opinions/statements of her treating physician, Dr. Juanita Lopez. (Doc. 9, at 6-7.)
Anderson describes Dr. Lopez’ November 20, 2015 letter opinions/statements in the
following manner: “Dr. Lopez stated that Plaintiff’s clinical course is labile and guarded
at best, due to her multi-system organ affliction.  Dr. Lopez then concluded that the
Plaintiff has poor ability for functional productivity.” (Doc. 9, at 5, citing Tr. 4268.)
“Weighing the opinions and findings of treating, examining, and non-examining
physicians is an integral part of the process for determining disability.” Kahle v.
Commissioner of Social Security, 845 F.Supp.2d 1262, 1271 (M.D. Fla. 2012). In
particular, “the ALJ must give the opinion of the treating physician ‘substantial or
considerable weight unless “good cause” is shown to the contrary.’” Williams v. Astrue,
2014 WL 185258, *6 (N.D. Ala. Jan. 15, 2014), quoting Phillips, supra, 357 F.3d at 1240
(other citation omitted);; see Nyberg v. Commissioner of Social Security, 179 Fed.Appx.
589, 591 (11th Cir. May 2, 2006) (citing to same language from Crawford v.
Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)).
Good cause is shown 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.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004). Where the ALJ articulate[s] specific reasons for failing to
give the opinion of a treating physician controlling weight, and those
Dr. Lopez’ November 20, 2015 letter opinion precisely reads, as follows: “Due to
the multi-system organ affliction, her clinical course is labile & guarded at best. All things
considered, Ms. Anderson is deemed disabled & incapacitated, w/poor ability for functional
productivity.” (Tr. 426.)
reasons are supported by substantial evidence, there is no reversible
error. Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert v. Commissioner of Social Sec., 396 Fed.Appx. 652, 655 (11th Cir. Sept. 21,
2010) (per curiam).
The ALJ discussed Dr. Lopez’ letter opinion(s) at significant length in the
administrative decision. (Tr. 30-32.)
On November 20, 2015, treating source Juanita Lopez, M.D., completed a
narrative in which she cited seizure disorder;; vascular headaches;; history
of transient cerebrovascular ischemic episodes with residual left
hemiparesis;; thyroid disorder;; diabetes mellitus;; and lumbar disc disease
with radiculopathy. Dr. Lopez noted that the claimant had been through
various modalities of treatment and care as she continued to take
numerous medications and undergo physical therapy. Dr. Lopez opined
that, due to the claimant’s multi-system organ affliction, her clinical course
was labile and guarded at best. Dr. Lopez further concluded that the
claimant was disabled and incapacitated with a poor ability for functional
The undersigned emphasizes that notations with Dr. Lopez referenced
treatment or laboratory workup from April 2014 through September 2015,
with decreasing frequency of treatment noted over time. Regarding the
claimant’s migraine headache[s], notations revealed that she was
prescribed Esgic-Plus, Fioricet, and Lorazepam and, while notations from
early June 2014 referenced daily right-sided headaches, subsequent
notations failed to reference ongoing issues with migraine headaches.
According to Dr. Lopez’s notations, the claimant’s diabetes mellitus was
treated with Glucophage, Glipizide, and Invokana (briefly) and was
considered to be uncontrolled on only two occasions. The claimant was
given an appointment for a diabetes education class, and the undersigned
notes that no end-organ damage as a result of diabetes mellitus was
referenced in Dr. Lopez’s notations. According to notations with Dr. Lopez,
the claimant’s seizure disorder was documented to be controlled on
medications. Further, Dr. Lopez’s notations referenced her assessment of
cerebrovascular accident vs. conversion reaction, with examination
disclosing mild weakness of the right arm and leg in April 2014 and mild
right hemiparesis noted in April and June 2014. At a visit in May 2014, the
claimant was found to have right upper extremity motor strength of 1/5
proximal and distal strength. The claimant’s right lower extremity proximal
and distal strength was 1/5;; however, Dr. Lopez also noted that she was
able to lift her right leg without difficulty during other parts of testing.
Although the claimant was noted to ambulate with a walker at a particular
visit, Dr. Lopez described the claimant’s mild right-sided weakness as
Notations from June 4, 2014, disclosed that the claimant’s right-sided
weakness was getting better. The undersigned finds that subsequent
treatment notes from Dr. Lopez failed to document ongoing complaints or
objective findings of weakness and that there was no evidence of residual
left hemiparesis documented. In other words, notations referenced various
inconsistencies in strength testing. As previously set forth, notations of
record failed to document the existence of a medically determinable
musculoskeletal impairment for the claimant. Physical examination was
primarily normal, with negative imaging, and the claimant was prescribed
anti-inflammatory medications and muscle relaxers for symptoms. While
Dr. Lopez referenced the claimant’s thyroid condition in her narrative, her
treatment notations made a singular reference to thyroid symptomatology,
with swelling noted around the thyroid area. As set forth, the undersigned
finds that treatment notations of Dr. Lopez have failed to entirely support
the assertions stated in her narrative. There is little evidence to support
Dr. Lopez’ reports of multi-system organ affliction, and the
undersigned specifically finds no indication from her treatment
notations that her clinical course was labile and guarded at best. The
undersigned additionally cannot ignore that subsequent notations
regarding the claimant’s extremity strength with USA Department of
Neurology indicated that her arm and leg were stable since her original
episode. The claimant’s gait was found to be normal and her strength was
observed to be 4+/5 in the right upper and right lower extremities.
Treatment notations of record from August 2015 disclosed that the
claimant moved all extremities well and ambulated without difficulty. The
undersigned emphasizes that the objective treatment record failed to
document ongoing difficulty with weakness and reduced strength. Dr.
Lopez’s treatment notes, as well as the remainder of the objective
record, failed to support a conclusion that the claimant was
incapacitated with a poor ability for functional productivity.
Further, the undersigned emphasizes that Social Security Rulings 96-2p
and 96-5p indicate that a physician’s opinion on issues reserved to the
Commissioner of Social Security is never entitled to controlling weight or
special significance. Examples of opinions that may not be given
controlling weight are opinions about what an individual’s residual
functional capacity is and whether an individual is disabled. Since Dr.
Lopez’s opinion that the claimant was disabled concerns an issue
reserved to the Commissioner, it cannot be given controlling weight.
Based on the foregoing, the undersigned grants only partial weight to Dr.
Lopez, accepting conclusions to the extent that such conclusions were
consistent with the residual functional capacity statement herein. Although
her treatment notations arguably documented some degree of limitation,
Dr. Lopez’s notations failed to support a finding that the claimant
experienced totally debilitating functional limitations.
(Id. (emphasis supplied)).
Initially, the undersigned notes that the determination of disability is reserved for
the Commissioner and because Dr. Lopez’s statement that Plaintiff is “deemed
disabled” is not a medical opinion, the ALJ is absolutely correct that this statement is not
entitled to be given any weight, much less controlling weight. Compare Kelly v.
Commissioner of Social Sec., 401 Fed.Appx. 403, 407 (11th Cir. Oct. 21, 2010) (“A
doctor’s opinion on a dispositive issue reserved for the Commissioner, such as whether
the claimant is ‘disabled’ or ‘unable to work,’ is not considered a medical opinion and is
not given any special significance, even if offered by a treating source[.]”) with Symonds
v. Astrue, 448 Fed.Appx. 10, 13 (11th Cir. Oct. 31, 2011) (“[T]he ultimate issue of
disability is left to the determination of the Commissioner;; and a statement by a medical
source that a claimant is ‘disabled’ or ‘unable to work’ is not binding on the ALJ.”).9
In addition to rejecting Dr. Lopez’s opinion that Plaintiff was “disabled,” the ALJ
also refused to accord controlling weight to Dr. Lopez’s statement that Plaintiff’s “clinical
course is labile & guarded at best” (see Tr. 426) and her conclusion that Anderson is
“incapacitated, w/poor ability for functional productivity” (id.), finding the statement
inconsistent with the treating physician’s own clinical records (Tr. 31) and her
conclusion inconsistent with both her own clinical records and the remaining objective
Plaintiff makes no argument to the contrary in her brief (see Doc. 9, at 5 (only
making mention of Dr. Lopez’s statement that Plaintiff’s clinical course is labile and guarded at
best, due to her multi-system organ affliction and to the treating physician’s conclusion that
Plaintiff has poor ability for functional productivity)), nor did Plaintiff’s counsel make a contrary
argument during the hearing on May 9, 2018.
treatment evidence of record (see id.). The Court concludes that the foregoing reasons
articulated by the ALJ are valid reasons for failing to give Dr. Lopez’s opinions
controlling weight, compare Gilabert, supra, 396 Fed.Appx. at 655 (recognizing that
good cause for rejecting a treating physician’s opinion include that the opinion is
inconsistent with the doctor’s own medical records and that the opinion is not bolstered
by the evidence) with Jones v. Colvin, 2013 WL 1909485, *3 (N.D. Ala. May 6, 2013)
(recognizing as a valid reason for failing to give a treating physician’s opinion controlling
weight the fact that the opinion is inconsistent with the treating physician’s own
treatment records), and are reasons that are supported by the record. Indeed, as
articulated by the ALJ (see Tr. 31), Dr. Lopez’s own treatment records reflect that
though, at times, Anderson’s diabetes mellitus was uncontrolled it was otherwise
without complication (compare Tr. 373 with Tr. 380);; any thyroid concerns were
exhibited only once and presented no long-term issues (see Tr. 392;; compare id. with
Tr. 373-90 (no additional mention of thyroid problems));; her vascular/migraine
headaches were present but there is no indication that they were either constant or
debilitating (see, e.g., Tr. 238-39, 317-24, & 373-403);; her history of transient
cerebrovascular episodes with residual left hemiparesis was just that, a past history,
with evidence of only mild right-sided weakness (see Tr. 238, 317, 320-23, 380, 384,
386, 389 & 396);; her seizure disorder was under control before Dr. Lopez penned her
November 20, 2015 letter (see, e.g., Tr. 380;; compare id. with Tr. 426);; and though Dr.
Lopez referenced lumbar disc disease with radiculopathy in her November 20, 2015
letter, and her office notes do reference back and hip pain (Tr. 373, 384, 386, 396 &
401), those same office notes also consistently reference that Anderson was in no acute
distress on examination and/or that her x-rays were negative (see Tr. 373 (noting
negative x-rays);; Tr. 380, 384, 386, 389 & 396 (noting no acute distress)). Based on the
foregoing evidence, therefore, the Court finds that the ALJ did not reversibly err in failing
to accord controlling weight to Dr. Lopez’s statement that Plaintiff’s “clinical course is
labile & guarded at best.”10
Additionally, the evidence just set forth from the records of Dr. Lopez, along with
evidence from June of 2014 indicating a normal gait and station and 4+/5 strength in the
right upper and lower extremity (Tr. 327), normal testing of the brain/head and
extremities from April of 2014 through August of 2015 (see, e.g., Tr. 273 (normal EEG
awake and asleep on April 7, 2014);; Tr. 274 (normal nerve conduction study of both
lower extremities on April 7, 2014);; Tr. 298 (normal MRI of the brain);; Tr. 350 (normal
unenhanced MR of the brain on July 24, 2015);; Tr. 371 (normal unenhanced CT of the
head on August 28, 2015)), and evidence from August of 2015 indicating that Plaintiff
had no peripheral edema, moved all extremities well and ambulated without difficulty,
though complaining of right big toe pain (Tr. 363-366), certainly constitutes substantial
evidence supporting the ALJ’s decision to not accord controlling weight to Dr. Lopez’s
“conclusion” that Anderson, as of November of 2015, was “incapacitated w/poor ability
for functional productivity.”
The Court therefore finds that good cause existed for the ALJ to not accord
controlling weight to the various statements/opinions/conclusions of Dr. Lopez. See
Interestingly, no examination accompanied Dr. Lopez’s November 20, 2015
opinion letter (see Tr. 426) and, indeed, the closest examination to that letter occurred on
September 22, 2015, almost two months earlier, an examination that reflects uncontrolled
diabetes mellitus but otherwise does not contain clinical findings suggestive of an individual
encumbered by disabling limitations (see Tr. 373-74).
Hunter v. Social Sec. Admin., Commissioner, 808 F.3d 818, 823 (11th Cir. 2015) (“We
will not second guess the ALJ about the weight the treating physician’s opinion
deserves so long as he articulates a specific justification for it.”), cert. denied, 136 S.Ct.
2487, 195 L.Ed.2d 823 (2016).
Given that Anderson’s assignments of error are properly overruled and Plaintiff
does not otherwise directly challenge the ALJ’s residual functional capacity assessment
or the VE’s identification of light jobs an individual with such residual functional capacity
can perform (compare Doc. 9 with Tr. 29, 37 & 60-61), the Commissioner’s fifth-step
determination is due to be affirmed. See, e.g., Owens v. Commissioner of Social
Security, 508 Fed.Appx. 881, 883 (11th Cir. Jan. 28, 2013) (“The final step asks
whether there are significant numbers of jobs in the national economy that the claimant
can perform, given h[er] RFC, age, education, and work experience. The Commissioner
bears the burden at step five to show the existence of such jobs . . . [and one] avenue
by which the ALJ may determine [that] a claimant has the ability to adjust to other work
in the national economy . . . [is] by the use of a VE[.]”(internal citations omitted));; Land
v. Commissioner of Social Security, 494 Fed.Appx. 47, 50 (11th Cir. Oct. 26, 2012) (“At
step five . . . ‘the burden shifts to the Commissioner to show the existence of other jobs
in the national economy which, given the claimant’s impairments, the claimant can
perform.’ The ALJ may rely solely on the testimony of a VE to meet this burden.”
(internal citations omitted)). In short, substantial evidence supports the ALJ’s
determination that Anderson was not disabled.
It is ORDERED that the decision of the Commissioner of Social Security denying
Plaintiff benefits be affirmed.
DONE and ORDERED this the 15th day of May, 2018.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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