Blackmon v. Berryhill
MEMORANDUM AND OPINION entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be AFFIRMED. Signed by Magistrate Judge P. Bradley Murray on 08/07/2018. (srd)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
RITA V. BLACKMON,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff Rita V. Blackmon brings this action, pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a final decision of the Commissioner of Social Security
denying her claim for a period of disability and disability insurance benefits. 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. (Docs. 15 & 17 (“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.”)).
Upon consideration of the administrative record, Plaintiff’s brief, the Commissioner’s
brief, and the parties’ arguments at the July 17, 2018 hearing before the undersigned,
the Court concludes that the Commissioner’s decision denying benefits should be
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 15 & 17 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
I. Procedural Background
Plaintiff protectively filed an application for a period of disability and disability
insurance benefits on July 21, 2014, alleging disability beginning on December 11,
2013. (See Tr. 187-88.) Blackmon’s claim was initially denied on November 12, 2014
(Tr. 75 & 95-100) and, following Plaintiff’s January 5, 2015 written request for a hearing
before an Administrative Law Judge (“ALJ”) (see Tr. 101-02), hearings were conducted
before an ALJ on May 17, 2016 (Tr. 45-56) and November 10, 2016 (Tr. 36-44). On
December 8, 2016, the ALJ issued a decision finding that the claimant was not disabled
and, therefore, not entitled to a period of disability and disability insurance benefits. (Tr.
17-31.) More specifically, the ALJ proceeded to the fifth step of the five-step sequential
evaluation process and determined that Blackmon retains the residual functional
capacity to perform those sedentary jobs identified by the vocational expert (“VE”)
during the administrative hearing (compare id. at 30 with Tr. 42-43). On January 11,
2017, the Plaintiff appealed the ALJ’s unfavorable decision to the Appeals Council (Tr.
186); the Appeals Council denied Blackmon’s request for review on November 2, 2017
(Tr. 1-3). Thus, the hearing decision became the final decision of the Commissioner of
Plaintiff alleges disability due to diabetes with neuropathy, obesity, depression
and panic attacks. The Administrative Law Judge (ALJ) made the following relevant
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of this
The claimant has the following severe impairments: diabetes
with neuropathy, obesity, depression, and panic attacks (20 CFR
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 and 404.1526).
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform sedentary work as defined in 20 CFR 404.1567(a),
except her work is limited to simple, routine and repetitive tasks
involving only simple work-related decisions with few, if any,
workplace changes; and occasional interaction with the public,
coworkers, and supervisors.
The claimant is unable to perform any past relevant work (20
The claimant was born on October 26, 1969 and was 44 years
old, which is defined as a younger individual age 18-44, on the
alleged disability onset date (20 CFR 404.1563).
The claimant has at least a high school education and is able
to communicate in English (20 CFR 404.1564).
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 8241 and 20 CFR 404, Subpart P, Appendix 2).
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 and 404.1569(a)).
The claimant has not been under a disability, as defined in the
Social Security Act, from December 11, 2013, through the date of this
decision (20 CFR 404.1520(g)).
(Tr. 20, 22, 29 & 30 (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)2 (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
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
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
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 sedentary
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).3
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
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).
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, Blackmon 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 assign controlling weight to the RFC
opinion of her treating physician, Dr. Christopher Jenkins, and instead adopting his own
medical opinion; and (2) the ALJ committed reversible in that his RFC determination at
the fifth step of the sequential evaluation process is not supported by substantial
evidence. Since Plaintiff’s first assignment of error has import with respect to the ALJ’s
RFC determination, the undersigned considers all of Plaintiff’s assignment of errors
under the larger “umbrella” of the ALJ’s RFC determination.
The responsibility for making the residual functional capacity determination rests
with the ALJ. Compare 20 C.F.R. § 404.1546(c) (“If your case is at the administrative
law judge hearing level . . ., the administrative law judge . . . is responsible for assessing
your residual functional capacity.”) with, e.g., Packer v. Commissioner, Social Security
Admin., 542 Fed. Appx. 890, 891-892 (11th Cir. Oct. 29, 2013) (per curiam) (“An RFC
determination is an assessment, based on all relevant evidence, of a claimant’s
remaining ability to do work despite her impairments. There is no rigid requirement that
the ALJ specifically refer to every piece of evidence, so long as the ALJ’s decision is not
a broad rejection, i.e., where the ALJ does not provide enough reasoning for a
reviewing court to conclude that the ALJ considered the claimant’s medical condition as
a whole.” (internal citation omitted)). A plaintiff’s RFC—which “includes physical abilities,
such as sitting, standing or walking, and mental abilities, such as the ability to
understand, remember and carry out instructions or to respond appropriately to
supervision, co-workers and work pressure”—“is a[n]  assessment of what the
claimant can do in a work setting despite any mental, physical or environmental
limitations caused by the claimant’s impairments and related symptoms.” Watkins v.
Commissioner of Social Security, 457 Fed. Appx. 868, 870 n.5 (11th Cir. Feb. 9, 2012)
(citing 20 C.F.R. §§ 404.1545(a)-(c), 416.945(a)-(c)); see also 20 C.F.R. §
404.1545(a)(3) (in assessing RFC, the Commissioner is required to consider
“descriptions and observations of [the claimant’s] limitations from  impairments,
including limitations that result from  symptoms, such as pain, provided by [the
claimant] . . . .”).
To find that an ALJ’s RFC determination is supported by substantial evidence, it
must be shown that the ALJ has “’provide[d] a sufficient rationale to link’” substantial
record evidence “’to the legal conclusions reached.’” Ricks v. Astrue, 2012 WL
1020428, *9 (M.D. Fla. Mar. 27, 2012) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345,
1347 (M.D. Fla. 2005)); compare id. with Packer v. Astrue, 2013 WL 593497, *4 (S.D.
Ala. Feb. 14, 2013) (“’[T]he ALJ must link the RFC assessment to specific evidence in
the record bearing upon the claimant’s ability to perform the physical, mental, sensory,
and other requirements of work.’”), aff’d, 542 Fed. Appx. 890 (11th Cir. Oct. 29, 2013);
see also Hanna v. Astrue, 395 Fed. Appx. 634, 636 (11th Cir. Sept. 9, 2010) (per
curiam) (“The ALJ must state the grounds for his decision with clarity to enable us to
conduct meaningful review. . . . Absent such explanation, it is unclear whether
substantial evidence supported the ALJ’s findings; and the decision does not provide a
meaningful basis upon which we can review [a plaintiff’s] case.” (internal citation
omitted)).4 However, in order to find the ALJ’s RFC assessment supported by
substantial evidence, it is not necessary for the ALJ’s assessment to be supported by
the assessment of an examining or treating physician. See, e.g., Packer, supra, 2013
WL 593497, at *3 (“[N]umerous court have upheld ALJs’ RFC determinations
notwithstanding the absence of an assessment performed by an examining or treating
physician.”); McMillian v. Astrue, 2012 WL 1565624, *4 n.5 (S.D. Ala. May 1, 2012)
(noting that decisions of this Court “in which a matter is remanded to the Commissioner
because the ALJ’s RFC determination was not supported by substantial and tangible
evidence still accurately reflect the view of this Court, but not to the extent that such
decisions are interpreted to require that substantial and tangible evidence must—in all
It is the ALJ’s (or, in some cases, the Appeals Council’s) responsibility, not the
responsibility of the Commissioner’s counsel on appeal to this Court, to “state with clarity” the
grounds for an RFC determination. Stated differently, “linkage” may not be manufactured
speculatively by the Commissioner—using “the record as a whole”—on appeal, but rather, must
be clearly set forth in the Commissioner’s decision. See, e.g., Durham v. Astrue, 2010 WL
3825617, *3 (M.D. Ala. Sept. 24, 2010) (rejecting the Commissioner’s request to affirm an ALJ’s
decision because, according to the Commissioner, overall, the decision was “adequately
explained and supported by substantial evidence in the record”; holding that affirming that
decision would require that the court “ignor[e] what the law requires of the ALJ[; t]he court ‘must
reverse [the ALJ’s decision] when the ALJ has failed to provide the reviewing court with
sufficient reasoning for determining that the proper legal analysis has been conducted’” (quoting
Hanna, 395 Fed. Appx. at 636 (internal quotation marks omitted))); see also id. at *3 n.4 (“In his
brief, the Commissioner sets forth the evidence on which the ALJ could have relied . . . . There
may very well be ample reason, supported by the record, for [the ALJ’s ultimate conclusion].
However, because the ALJ did not state his reasons, the court cannot evaluate them for
substantial evidentiary support. Here, the court does not hold that the ALJ’s ultimate conclusion
is unsupportable on the present record; the court holds only that the ALJ did not conduct the
analysis that the law requires him to conduct.” (emphasis in original)); Patterson v. Bowen, 839
F.2d 221, 225 n.1 (4th Cir. 1988) (“We must . . . affirm the ALJ’s decision only upon the reasons
cases—include an RFC or PCE from a physician” (internal punctuation altered and
citation omitted)); but cf. Coleman v. Barnhart, 264 F.Supp.2d 1007 (S.D. Ala. 2003).
In this case, the Court finds that the ALJ linked his RFC assessment—that is,
sedentary work with some mental limitations—to specific evidence in the record bearing
upon Blackmon’s ability to perform the physical, mental, sensory and other
requirements of work. (Compare Tr. 22-29 with generally Tr. 88-90, 214-16, 280-91,
295-300, 302, 305-08, 316, 322-26, 333-40, 348-51, 354-61, 399-402, 416-24 & 42737.) In particular, even though the Plaintiff argues that the ALJ erred in failing to accord
substantial weight to the opinion of her treating psychiatrist, Dr. Christopher Jenkins,
and accorded too much weight to the consultative evaluation of Dr. Aaron Mates, and,
as a consequence of both errors, improperly determined that she can perform sedentary
work with mild to moderate mental limitations only, this Court finds that the ALJ
committed no such errors.
Before addressing the Plaintiff’s specific arguments, the undersigned notes that
“[w]eighing 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
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).
Dr. Christopher Jenkins, a psychiatrist who initially treated Blackmon beginning
on October 7, 2002 and then began treating her again on April 16, 2015 after a fouryear cessation in treatment (see Tr. 338), completed a Mental Residual Functional
Capacity questionnaire on February 8, 2016 on which he indicated that Plaintiff had a
moderate restriction of activities of daily living, marked difficulty in maintaining social
functioning, constant deficiencies in concentration, persistence and pace, and had
experienced 4 or more episodes of decompensation in work or work-like settings
causing her to withdraw from that situation or experience exacerbation of signs or
symptoms for a period of at least 2 weeks (Tr. 341). In addition, Dr. Jenkins specifically
noted on the form that Blackmon would experience the following limitations in her ability
to perform the following activities on a sustained basis in a routine work setting: (1)
marked limitations in (a) understanding, carrying out and remembering instructions, (b)
responding appropriately to supervision, (c) responding appropriately to coworkers, (d)
responding appropriately to customary work pressures, (e) performing simple tasks, and
(f) and performing repetitive tasks; and (2) extreme limitations in the ability to complete
work-related activities in a normal workday or workweek. (Tr. 341-42.) And although this
form, in bold print, requested an explanation of limitation ratings of moderate or greater
in the Comments section (see Tr. 341), Dr. Jenkins did not provide any explanation
regarding his marked and extreme ratings (see Tr. 342). In addition, while Dr. Jenkins
indicated that the noted limitations had lasted or could be expected to last for 12 months
or longer, he did not indicate the earliest date to which the limitations applied. (See id.)
Finally, Dr. Jenkins indicated that a psychological evaluation was not obtained on the
date he completed the form. (See id.)
The ALJ accorded little weight to Dr. Jenkins’s mental assessment because, “for
the reasons” set forth in this section of his decision, it was “inconsistent with the
evidence[.]” (Tr. 28.) Given the contents of the ALJ’s prior discussion (see Tr. 22-28), it
is clear that the ALJ accorded little weight to Dr. Jenkins’s February 8, 2016 mental
RFC assessment on the basis that it was both inconsistent with the other evidence
(including, medical evidence) of record as well as with Dr. Jenkins’s own medical
records (compare id. with Tr. 28 (ALJ’s weighing of Dr. Jenkins’s mental assessment)).
For her part, Plaintiff argues that the ALJ erred to reversal in failing to accord controlling
weight to Dr. Jenkins’s mental RFC assessment because that assessment is, in fact,
consistent with the medical evidence of record, and, along the way, contends that the
ALJ accorded too much weight to the opinions of consultative examiners Dr. John Davis
and Dr. Jack Carney.
The Court begins its analysis by observing that the ALJ’s finding that Dr.
Jenkins’s mental RFC assessment was “inconsistent with the evidence” (Tr. 28), which
as previously indicated means inconsistent with all evidence of record (inclusive of all
the medical—that provided by Dr. Jenkins and all other medical providers—and other
evidence of record), if accurate, constitutes a valid reason (or reasons) for failing to
accord Dr. Jenkins’s mental RFC assessment controlling weight. See 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,
the opinion is not bolstered by the evidence, and that the evidence supports a contrary
finding). In this case, the undersigned disagrees with Plaintiff’s view of the evidence and
finds that the ALJ’s decision to accord Dr. Jenkins’s mental RFC assessment little
weight is supported by substantial evidence of record. First, Dr. Jenkins’s own treatment
records do not support the marked and extreme limitations reflected on the mental RFC
form,5 those records reflecting the following: (1) on April 16, 2015, Blackmon’s judgment
and insight were normal, she was oriented x3, her recent and remote memory were
normal, her attention and concentration were normal, her language was normal, her
fund of knowledge was intact, her mood and affect was mixed bipolar, her speech was
normal in all spheres, her thought processes were normal in all spheres, her
associations were normal, suicidal and homicidal ideation and irritability were absent,
although she did have auditory hallucinations at times, and her GAF score was 55 (Tr.
338-40); (2) on July 30, 2015, the only items different from the examination on April 16,
2015 are that this report contains no mention of auditory hallucinations, Plaintiff’s mood
and affect were noted as being depressed, and her GAF score was 60 (see Tr. 333-35);
(3) on February 11, 2016, the only difference noted is that Plaintiff’s GAF score
increased to 65 (see Tr. 355-57); and (4) on April 19, 2016, the treating psychiatrist
indicated that the psychiatric examination was “ok,” with the only specific notation being
This certainly helps explain, at least in part, why Dr. Jenkins did not follow the
form instruction to explain in the Comments section the basis for limitation ratings “of moderate
or greater[.]” (Compare Tr. 341 with Tr. 342.)
that Blackmon’s mood and affect were depressed, and her GAF score had again
increased, this time to 70 (see Tr. 349-51). The foregoing relatively mild examination
findings simply cannot be “squared” with the marked to extreme limitations noted by Dr.
Jenkins on February 8, 2016, a date he did not even examine Blackmon, particularly
when the GAF scores given by Jenkins on actual examination of Plaintiff—ranging from
55 to 70—indicate moderate to mild symptoms and levels of functioning (compare Tr.
335, 340, 349 & 357 with http://www.rattler-firebird.org/va/gafchart.php (reflecting that
GAF scores of 51-60 indicate moderate symptoms and moderate difficulty in social,
occupational, or school functioning, while GAF scores of 61-70 indicate some mild
symptoms, with some difficulty in social, occupational or school functioning but
generally functioning pretty well with some meaningful interpersonal relationships)).
Indeed, given that Blackmon’s GAF score increased on every visit with Dr. Jenkins, and
were such that Plaintiff was only having mild symptoms and was functioning pretty well
some three days after Dr. Jenkins filled out the mental RFC assessment (compare Tr.
355-57 with Tr. 341-42), that assessment stands in stunning contrast to Dr. Jenkins’s
examination findings and, therefore, was properly eschewed by the ALJ. See Gilabert,
supra, 396 Fed.Appx. at 655 (“It is undisputed that the GAF scores Thebaud assigned
to Gilabert indicated only moderate difficulty in functioning and were therefore
inconsistent with the severe limitations that Thebaud outlined in his RFC assessment.”).
In addition, the remaining medical and non-medical evidence of record is
consistent with Dr. Jenkins’s examination findings, as opposed to the opinions reflected
on the mental RFC assessment, and likewise serve as a proper basis for the ALJ to
accord less than controlling weight to the treating psychiatrist’s RFC assessment. On
October 2, 2014, Dr. John Davis, a clinical psychologist, evaluated Blackmon and
reported the following on mental status examination: (1) overall satisfactory general
appearance and behavior; (2) no abnormalities of speech; (3) mood and affect reflected
some anxiety and depression but she did have the capacity for a full range of emotional
qualities, with emotional responses being appropriate to thought, content, and situation;
(4) she was oriented to person, place and time; (5) no indications of deficits in overall
concentration or attention; (6) no indications of deficits in remote, recent or immediate
memory; (7) an adequate fund of information; (8) abstract thoughts appeared intact; (9)
no loose associations, tangential or circumstantial thinking; (10) no indications of
hallucinations or delusions; (11) fair judgment and insight; and (12) normal relationships
with her family and peers. (Tr. 288-90.) Dr. Davis concluded that Plaintiff’s ability to
understand, remember and carry out simple instructions, and to make judgments on
simple work-related decisions, is mildly impaired; and that her ability to interact
appropriately with the public, co-workers and supervisors, as well as respond
appropriately to usual work situations and to changes in a routine work setting, is
moderately impaired. (Tr. 291.) This consultative examination from Dr. Davis is
consistent with the examination findings of Dr. Jenkins6 and fully supportive of the RFC
determination of the ALJ (compare id. with Tr. 22) and, as a consequence, it
substantially supports the ALJ’s decision to accord little weight to Dr. Jenkins’s mental
The Plaintiff’s suggestion that Dr. Davis’s opinion should not be accorded the
significant given to it by the ALJ since hat opinion was rendered before she received treatment
from Dr. Jenkins and was properly diagnosed (see Doc. 9, at 6), ignores the consistency
between Dr. Davis’s mental status findings with those of Dr. Jenkins and the consistency
between Dr. Davis’s noted mental limitations and the GAF scores diagnosed by Dr. Jenkins
(compare Tr. 288-91 with Tr. 333-35, 338-40, 349-51 & 355-57).
RFC assessment. See, e.g., Poellnitz v. Astrue, 349 Fed.Appx. 500, 503 (11th Cir. Oct.
21, 2009) (“[T]he opinions of the non-examining physicians were consistent with the
medical evidence in the record, including information contained in Dr. Tocci’s
examination report, which assigned Poellnitz a Global Assessment of Functioning
(‘GAF’) score of 55, as well as Poellnitz’s reports regarding her daily functioning. So,
while the overall assessments of the non-examining physicians conflict with Dr. Tocci’s
ultimate conclusion of severe limitations, they are actually supported by Dr. Tocci’s
more specific findings.”). Moreover, while Plaintiff correctly notes that Dr. Jack Carney
offered no diagnostic impression of Plaintiff and did not acknowledge any mental
limitations (see Tr. 416-24), contrary to the ALJ’s own conclusions (compare id. with Tr.
20 & 22), any error by the ALJ in according Dr. Carney’s opinion significant weight is
harmless, particularly since the mental status findings of Dr. Carney (Tr. 417-19) are
inherently consistent with those of both Dr. Davis and Dr. Jenkins (compare id. with Tr.
288-91, 333-35, 338-40, 349-51 & 355-57) and such mild to moderate mental status
findings are inherently inconsistent with—and do not support—the marked and extreme
limitations found by Dr. Jenkins on the mental RFC assessment. And, finally, Plaintiff’s
documented and reported daily activities—including, doing schoolwork on her laptop,
running errands, reading, watching television, handling money, spending time with
family, texting, accessing Facebook, playing games on her Kindle Fire, etc. (see, e.g.,
Tr. 215-16, 290 & 419)—simply do not support the marked and extreme limitations
found by Dr. Jenkins on the mental RFC assessment he completed on February 8,
2016; therefore, the ALJ properly accorded Dr. Jenkins’s RFC assessment little weight
as being inconsistent with evidence of Plaintiff’s own daily activities.
In light of the foregoing, the Court finds that good cause existed for the ALJ to not
accord controlling weight to the mental RFC assessment completed by Dr. Jenkins. See
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). Finally, any suggestion by Plaintiff that the ALJ
improperly substituted his own opinion for that of Dr. Jenkins is belied by the record, a
record which establishes good cause for the ALJ’s failure to assign controlling weight to
Dr. Jenkins’s mental RFC assessment, while at the same time supplying substantial
evidence to support the ALJ’s mental RFC determination. Stated somewhat differently,
this Court finds that “the ALJ did not ‘play doctor’ in assessing [Plaintiff’s] RFC, but
instead properly carried out his regulatory role as an adjudicator responsible for
assessing [Plaintiff’s] RFC.” Castle v. Colvin, 557 Fed.Appx. 849, 853 (11th Cir. Feb.
18, 2014) (citation omitted).
Turning to Plaintiff’s other assignment of error, it is clear that Blackmon stakes
the position that the ALJ not only erred with respect to respect to her mental RFC but,
as well, improperly concluded that she retains the physical RFC to perform sedentary
work. (See Doc. 9, at 6-10.) In particular, Plaintiff takes aim at Dr. Aaron Mates’
consultative report and RFC assessment dated June 18, 2016, contending that both are
inconsistent with the other evidence in the record documenting her diabetic neuropathy
problems, particularly the consultative examination and report of Dr. Brandon Taylor.
(See id. at 9-10.)
It is clear that “[a]lthough a sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.” 20 C.F.R. § 404.1567(a). Indeed, “[s]ince being on one’s feet
is required ‘occasionally’ at the sedentary level of exertion, periods of standing or
walking should generally total no more than about 2 hours of an 8-hour workday, and
sitting should generally total approximately 6 hours of an 8-hour workday.” SSR 83-10.
And while there is certainly evidence in the record reflecting that Plaintiff, at times, has
experienced an abnormal and neuropathic gait and, as a consequence, has had
difficulty in performing certain actions related to walking, squatting, bending, etc.
(compare Tr. 324-26 (“The claimant ambulates with difficulty, but she is able to do so
without an assistive device. The claimant is able to get up and out of the chair without
difficulty. The claimant is able to get on and off the examination table without difficulty.
Gait is abnormal and markedly neuropathic. . . . The claimant was able to walk on the
toes. The claimant was not able to walk on the heels. The claimant had difficulty
squatting. The claimant had difficulty doing tandem heel walk. [P]oor balance and poor
proprioception noted on exam. The claimant had difficulty bending over and touching
her toes. . . . The claimant exhibited normal mentation. Motor strength was 5/5 in all
extremities. The Claimant did not have muscle atrophy. Sensation was normal,
decreased sensation to light touch B feet in SPN/DPN/Saphenous nerves. The claimant
had difficulty doing finger-to-nose with both hand(s)[,] poor proprioception of finger to
nose.”) with, e.g., Tr. 277 (decreased sensation to light touch in lateral thighs and legs)
and Tr. 280-81, 285, 361 (neuropathy noted)), there are also notations in the record
referencing a normal gait (see, e.g., Tr. 306 (“Normal ambulatory status.”) & Tr. 435
(“Gait is normal.”)), and normal strength and range of motion, with no swelling or
tenderness (see, e.g., Tr. 297, 307, 400 & 436-37).
More importantly, while Dr. Taylor certainly concluded that Plaintiff’s neuropathy
“causes her to have limitations with standing or walking long periods of time[,]” (Tr. 326),
he also concluded that Blackmon was limited to “standing occasionally in an 8[-]hour
work day” and “walking occasionally in an 8[-]hour work day[,]” (id.), with occasionally
being defined as “very little up to 1/3 total of a[n] 8[-]hour work day[.]” (Id.) And since the
full range of sedentary work can be accomplished with occasional walking and standing,
compare 20 C.F.R. § 404.1567(a) with SSR 83-10, the evidence from Dr. Taylor, either
alone (Tr. 322—27) or combined with all other evidence of record (compare id. with Tr.
276-85, 295-308, 399-414 & 427-37), clearly supports the ALJ’s RFC determination that
“claimant has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a)[.]” (Tr. 22 (emphasis in original)). Thus, Blackmon’s
second assignment of error is not well taken.
Given that Blackmon’s assignments of error are properly overruled and Plaintiff
does not challenge the VE’s identification of sedentary jobs an individual with the
residual functional capacity reflected in the decision can perform (compare Doc. 9 with
Tr. 22, 30 & 42-43), 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 Blackmon 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 7th day of August, 2018.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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