Abbington v. Berryhill

Filing 34

MEMORANDUM OPINION AND ORDER that the Commissioner's final decision denying plaintiff's 6/9/14 application for a period of disability, DIB, and SSI are AFFIRMED under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 2/26/19. (srr)

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

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CIVIL ACTION NO. 1:17-00552-N

MEMORANDUM OPINION AND ORDER
Plaintiff Betty A. Abbington 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, 29) and those portions of the
administrative record (Doc. 11) (hereinafter cited as “(R. [page number(s) in lowerright corner of transcript])”) relevant to the issues raised, 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. 19, 20). The parties jointly waived the
opportunity for oral argument. (See Docs. 31, 32).
Abbington also filed a separate motion to remand this action to the
1

I.

Background

Abbington filed applications for a period of disability, DIB, and SSI with the
Social Security Administration (“SSA”) on June 9, 2014. Both applications alleged
disability beginning November 5, 2012. 2

After her applications were initially

denied, Abbington requested a hearing before an Administrative Law Judge (“ALJ”)
with the SSA’s Office of Disability Adjudication and Review, which was held on
March 21, 2016. On October 26, 2016, the ALJ issued an unfavorable decision on
Abbington’s applications, finding her not disabled under the Social Security Act and
thus not entitled to benefits. (See R. 7 – 24).
The Commissioner’s decision on Abbington’s applications became final when
the Appeals Council for the Office of Disability Adjudication and Review denied her
request for review of the ALJ’s decision on October 16, 2017. (R. 1 – 5). Abbington
subsequently filed this action under § 405(g) and § 1383(c)(3) for judicial review of
the Commissioner’s final decision.

See 42 U.S.C. § 1383(c)(3) (“The final

Commissioner on the basis that the Administrative Law Judge who issued the
unfavorable decision on her applications was not constitutionally appointed. (Doc.
18). That motion has been denied by separate order (Doc. 26).
“Title II of the Social Security Act (Act), 49 Stat. 620, as amended, provides for the
payment of insurance benefits to persons who have contributed to the program and
who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1)(D) (1982 ed.,
Supp. III). Title XVI of the Act provides for the payment of disability benefits to
indigent persons under the Supplemental Security Income (SSI) program. §
1382(a).” Bowen v. Yuckert, 482 U.S. 137, 140 (1987). “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

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
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)).
“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

Nevertheless, “[m]aking district courts dig through volumes of documents
and transcripts would shift the burden of sifting from petitioners to the courts.
With a typically heavy caseload and always limited resources, a district court
cannot be expected to do a petitioner’s work for him.” Chavez v. Sec'y Fla. Dep't of
Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (28 U.S.C. § 2254 habeas proceedings).
“[D]istrict court judges are not required to ferret out delectable facts buried in a
massive record,” id., and “ ‘[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)
(Fed. R. Civ. P. 56 motion for summary judgment) (quoting Resolution Trust Corp.
v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc)) (ellipsis added).
Moreover, the Eleventh Circuit Court of Appeals, whose review of Social
Security appeals “is the same as that of the district court[,]” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam), generally deems waived claims of error not
fairly raised in the district court. See Stewart v. Dep’t of Health & Human Servs.,
3

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).
See also McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986) (“We are
constrained to conclude that the administrative agency here…reached the result
that it did by focusing upon one aspect of the evidence and ignoring other parts of
the record. In such circumstances we cannot properly find that the administrative
decision is supported by substantial evidence. It is not enough to discover a piece of
evidence which supports that decision, but to disregard other contrary evidence.
The review must take into account and evaluate the record as a whole.”).
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

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)); Crawford, 363 F.3d at 1161 (same); 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).

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

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.”).
4

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

“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

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).
When the ALJ denies benefits and the Appeals Council denies review of that
decision, the Court “review[s] the ALJ’s decision as the Commissioner’s final
decision.” Doughty, 245 F.3d at 1278. But “when a claimant properly presents new
evidence to the Appeals Council, a reviewing court must consider whether that new
evidence renders the denial of benefits erroneous.” Ingram, 496 F.3d at 1262.
Nevertheless, “when 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).
III.

Summary of the ALJ’s Decision

At Step One, the ALJ determined that Abbington met the applicable insured
status requirements through December 31, 2016,6 and that she had not engaged in

Abbington asserts that the ALJ’s last-insured date is erroneous and should
instead be December 31, 2017, but she does not claim that remand is due on this
issue. (See Doc. 14 at 4).
6

substantial gainful activity since November 5, 2012, the alleged disability onset
date. (R. 12 – 13). At Step Two, the ALJ determined that Abbington had the
following severe impairments: degenerative disc disease, degenerative osteoarthritis
of the cervical and lumbar spine, bilateral carpal tunnel syndrome, and a mood
disorder. (R. 13). At Step Three, the ALJ found that Abbington did not have an
impairment or combination of impairments that met or equaled the severity of a
specified impairment in the Listing of Impairments. (R. 13 – 15).
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).

The ALJ determined that Abbington had the RFC “to perform many elements
of a sedentary level work as defined in 20 CFR 404.1567(a) and 416.967(a),[7] but
not a ‘full range’ of such work (See SSR 83-10). She can lift and carry up to ten
pounds; sit for two hours at a time and at least six hours total but would need to
stand every hour at the work station with no significant interference in
productivity, stand thirty minutes at a time, walk fifteen minutes at a time, and
stand and walk in combination for about three hours total in a day; occasionally
bend, stoop, squat, kneel, and crouch; never climb ladders, ropes, and scaffolds;
push and pull occasionally with the feet and legs but never with the hands and
arms; frequently but not continuously perform fine and gross manipulation such as
grasping, gripping, twisting, and turning; occasionally climb stairs and ramps; and
work in a lower stress, unskilled, routine, and repetitive work environment that
requires no more than occasional decisions made when on the job, no more than
occasional change in the routine, and no more than occasional interaction with the
general public.” (R. 15 – 22).
Based on this RFC and the testimony of a vocational expert, 8 the ALJ

“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.
7

“A vocational expert is an expert on the kinds of jobs an individual can perform
based on his or her capacity and impairments. When the ALJ uses a vocational
expert, the ALJ will pose hypothetical question(s) to the vocational expert to
establish whether someone with the limitations that the ALJ has previously
determined that the claimant has will be able to secure employment in the national
8

determined that Abbington was unable to perform any past relevant work. (R. 22 –
23). At Step Five, based on additional testimony from the vocational expert, the
ALJ found that there exist a significant number of jobs in the national economy that
Abbington could perform given her RFC, age, education, and work experience. (R.
23 – 24). Thus, the ALJ found that Abbington was not disabled under the Social
Security Act. (R. 24).
IV.
Evidence

considered

by

the

Analysis
Commissioner

determination may include medical opinions.

in

making

a

disability

See 20 C.F.R. §§ 404.1527(a)(2),

416.927(a)(2). “ ‘Medical opinions are statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the nature and
severity of [the claimant's] impairment(s), including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and
[the claimant's] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79
(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).

“There are three tiers of

medical opinion sources: (1) treating physicians; (2) nontreating, examining
physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of
Soc. Sec., 585 F. App'x 758, 762 (11th Cir. 2014) (per curiam) (unpublished) (citing
20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2)). “In assessing medical opinions,
the ALJ must consider a number of factors in determining how much weight to give
to each medical opinion, including (1) whether the physician has examined the

economy.” Phillips, 357 F.3d at 1240.

claimant; (2) the length, nature, and extent of a treating physician's relationship
with the claimant; (3) the medical evidence and explanation supporting the
physician’s opinion; (4) how consistent the physician’s opinion is with the record as
a whole; and (5) the physician’s specialization.

These factors apply to both

examining and non-examining physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586
F. App'x 521, 523 (11th Cir. 2014) (per curiam) (unpublished) (internal citations
and quotation marks omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) &
(e)). “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 (citation omitted). While “the ALJ is not required to explicitly address each of
those factors[,]” Lawton v. Comm'r of Soc. Sec., 431 F. App'x 830, 833 (11th Cir.
2011) (per curiam) (unpublished), “the ALJ must state with particularity the weight
given to different medical opinions and the reasons therefor.” Winschel, 631 F.3d at
1179.
“Absent ‘good cause,’ an ALJ is to give the medical opinions of treating
physicians ‘substantial or considerable weight.’ ” Id. (quoting Lewis, 125 F.3d at
1440). 9 “Good cause exists ‘when the: (1) treating physician's opinion was not

On the other hand, the opinions of non-treating physicians “are not entitled to
deference…” McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per curiam).
See also Brock v. Comm'r, Soc. Sec. Admin., No. 17-14600, 2018 WL 6624608, at *4
(11th Cir. Dec. 17, 2018) (per curiam) (unpublished) (“[T]he opinions of non-treating
examiners are not entitled to deference or special consideration. See McSwain v.
Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (per curiam).”); Santos v. Soc. Sec.
Admin., Comm'r, 731 F. App'x 848, 857 (11th Cir. 2018) (per curiam) (unpublished)
(“An ALJ generally gives an opinion from an examining physician greater weight
than a non-examining physician, but the agency’s rules do not provide that an
9

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.’ With good cause, an ALJ may disregard a treating physician’s opinion, but
he ‘must clearly articulate [the] reasons’ for doing so.” Winschel, 631 F.3d at 1179
(quoting Phillips, 357 F.3d at 1240-41) (internal citation omitted). See also, e.g.,
Bloodsworth, 703 F.2d at 1240 (“[T]he opinion of a treating physician may be
rejected when it is so brief and conclusory that it lacks persuasive weight or where
it is unsubstantiated by any clinical or laboratory findings…Further, the
[Commissioner] may reject the opinion of any physician when the evidence supports
a contrary conclusion.”).10 Failure to clearly articulate the reasons for giving less
weight to the opinion of a treating physician “constitutes reversible error.” Lewis,
125 F.3d at 1440. “But if an ALJ articulates specific reasons for declining to give
the opinion of a treating physician controlling weight, and those reasons are
supported by substantial evidence, there is no reversible error.”

Horowitz v.

Comm'r of Soc. Sec., 688 F. App'x 855, 861 (11th Cir. 2017) (per curiam)
(unpublished) (citing Moore, 405 F.3d at 1212). Accord Huigens v. Soc. Sec. Admin.,
Comm'r, 718 F. App'x 841, 844 (11th Cir. 2017) (per curiam) (unpublished).
examining physician’s opinion may receive ‘controlling weight’ as a treating source
might.”); Beegle v. Soc. Sec. Admin., Com'r, 482 F. App'x 483, 489 (11th Cir. 2012)
(per curiam) (unpublished) (“[T]he ALJ was not required to defer to Dr. Jin’s
opinion because he only examined Beegle on a single occasion and did not treat him.
See McSwain, 814 F.2d at 619.”).
On January 18, 2017, the SSA substantially revised the regulations governing
how the Commissioner considers medical opinions. However, those revisions apply
only to claims filed on or after March 27, 2017, and are therefore inapplicable to
Abbington’s present applications. See 20 C.F.R. §§ 404.1520c, 416.920c.
10

A.

Treating Physician’s Opinion

Abbington claims that the ALJ reversibly erred in rejecting the medical
opinions of her treating physician Dr. Mark Roberts, and of consultative examining
physician Dr. Richard Harris. The ALJ addressed Dr. Roberts’s opinion as follows:
In December 2015, Mark Roberts, M.D. completed a “Disability Claim
Questionnaire” and “Physical Capacities and Pain Evaluation.” His
responses to the former were transcribed due to their illegibility. He
reported the claimant’s medical problems included cervical
degenerative disc disease with Arnold Chiari type I malformation,
major depressive disorder, vascular headaches, fibromyalgia, neuralgia
or neuritis, and carpal tunnel; however, he assessed the severity and
impact on the ability to pursue gainful employment of only two of these
problems, cervical degenerative disc disease and major depressive
disorder. He indicated these two were moderately severe and caused a
decreased level of concentration secondary to pain. Her related
treatment had included medication and appointments with neurology
and pain management. Dr. Roberts was asked to assess her ability to
engage in gainful employment “considering age, physical and mental
condition, education and job experience.” He responded, “Patient
would need retraining. However, due to her diagnosis above, patient
probably would be difficult to find gainful employment.” He opined
that her disability had been present for about two years. His prognosis
was that she needed “further treatment & with no job it is difficult to
get the treatment.” Dr. Roberts indicated that in an eight-hour
workday the claimant could sit, stand, and walk for four hours each
“total at one time;” use her hands for repetitive action; and frequently
bend, squat, crawl, and reach. He indicated the claimant had greatly
increased pain and to such a degree as to cause distraction from task
or total abandonment of task and that physical activity would greatly
increase the pain to such a degree as to cause distraction from task or
total abandonment of task. He opined pain and/or drug side effects
could be expected to be severe and to limit effectiveness. (Exhibit 10F).
Dr. Roberts’s opinion has been given little weight because it is not
consistent with or supported by his treatment records. His office notes
do not reflect ongoing concentration limitations. To the contrary, her
attention span was noted to be normal. The physical limitations he

indicated are not supported by clinical findings limited to tenderness.
His assessment of the claimant’s pain and medication side effects is
inconsistent with the conservative nature of his medication
management.
(R. 20 – 21).
Abbington takes issue only with the reasons given for rejecting Dr. Roberts’s
opinion regarding pain and medication side effects, 11 claiming that the ALJ
mischaracterized

Dr.

Roberts’s

medication

management

as

“conservative.”

However, Abbington articulates no compelling reason for this Court to reverse
based on the ALJ’s characterization. 12 The ALJ’s decision contains a thorough

(See Doc. 14 at 16 (“It is respectfully submitted that the ALJ’s description of Dr.
Roberts’ treatment as being conservative does not accurately describe Dr. Roberts’
attempts to manage his patient’s pain.”), 21 (“Although the ALJ’s decision stated
the reason for rejecting the opinions of Dr. Roberts regarding pain and medication
side effects was because the opinions were “inconsistent with the conservative
nature of his medication management” (Tr. 21), Dr. Roberts had referred Ms.
Abbington to both neurologists and pain specialists.”)).
11

For instance, Abbington cites no comparator cases involving an ALJ rejecting
a treating physician’s opinion due to “conservative treatment,” and any consistency
in case law as to what kinds of treatment are sufficiently “conservative” to justify
discounting a treating opinion is, at best, elusive. Compare Horowitz v. Comm'r of
Soc. Sec., 688 F. App'x 855, 861–62 (11th Cir. 2017) (per curiam) (unpublished)
(“Although Dr. Sultana opined that Horowitz’s mental impairments left her unable
to work, the record reflects that Dr. Sultana provided conservative mental health
treatment, which consisted only of 15-minute medication management
appointments. The conservative and routine nature of this treatment plan suggests
that Horowitz's impairments—while significant—were not so severe that she could
not perform any job duties. See Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996)
(recognizing that a physician's conservative medical treatment for a particular
condition may negate a claim of disability).”), Carter v. Comm'r of Soc. Sec., 726 F.
App'x 737, 740–41 (11th Cir. 2018) (per curiam) (unpublished) (Treating physicians’
opinions “were inconsistent with the record as a whole, since doctors repeatedly
told Carter to exercise and use conservative treatments. For instance, while Dr.
Nagender Reddy recommended leg elevation in combination with other conservative
treatment, such as compression stockings or hose, he did not order that she keep
12

her legs elevated during the day; notably, he never said that Carter had to elevate
her legs in order to function nor that she had to refrain from sitting or standing
unless she periodically elevated her legs.”), Womble v. Comm'r of Soc. Sec., 705 F.
App'x 923, 927 (11th Cir. 2017) (per curiam) (unpublished) (“Dr. Fine's opinion was
not supported by his own treatment notes given Womble's conservative and
relatively infrequent treatment. Prior to rendering his opinion regarding Womble's
limitations in April 2012, Dr. Fine had treated Womble for her back disorder only
two times in 2008, once in January 2012, and once in April 2012. In fact, in a
treatment note dated January 24, 2012, Dr. Fine stated that he was seeing Womble
for the first time in three-and-a-half years. On the same day that Dr. Fine
completed the medical source statement opining that Womble was so disabled that
she could not even perform sedentary work, he did not schedule a follow-up
appointment for another ten weeks.”), Parra v. Astrue, 481 F.3d 742, 750–51 (9th
Cir. 2007) (“The ALJ also noted that Parra’s physical ailments were treated with an
over-the-counter pain medication. We have previously indicated that evidence of
‘conservative treatment’ is sufficient to discount a claimant's testimony regarding
severity of an impairment.”), and Doig v. Colvin, No. 8:13-CV-1209-T-17AEP, 2014
WL 4463244, at *4 (M.D. Fla. Sept. 10, 2014) (“The meaning of ‘conservative
treatment’ is well known; it includes any mode of treatment which is short of
surgery. Treatment with medication, whether prescribed or over-the-counter, and
steroid injections is still conservative treatment, i.e. not surgery.”), with Huber v.
Berryhill, 732 F. App'x 451, 456–57 (7th Cir. 2018) (per curiam) (unpublished) (“The
absence of recommendations for back surgery or narcotics does not suggest that
Huber’s treatment was necessarily conservative. Further the ALJ omitted Huber’s
kyphoplasty surgery and radiofrequency ablation when recounting the ‘treatment
regimen’ that he characterized as conservative. The nature of these treatments
bolsters Huber’s pain allegations and suggests that the ALJ’s basis for labeling his
treatment conservative was misguided.” (some quotation marks omitted)), LapeirreGutt v. Astrue, 382 F. App'x 662, 664 (9th Cir. 2010) (per curiam) (unpublished)
(expressing skepticism of ALJ’s determination that claimant’s “regimen of powerful
pain medications and injections” constituted “conservative treatment”), and Moon v.
Colvin, 139 F. Supp. 3d 1211, 1220 (D. Or. 2015) (“The record does not support the
ALJ's finding of a ‘conservative and/or routine’ treatment regimen. Although, as the
ALJ noted, Plaintiff has not been hospitalized during the relevant period, there is
no indication that hospitalization would be a more appropriate treatment than what
she currently receives. Plaintiff has engaged in a considerable amount of regular
mental health counseling and medication management. Plaintiff also takes a
number of medications to treat her symptoms. Plaintiff's counselors report that she
is fully committed to her treatment, citing her regular attendance, full
participation, and compliance with her treatment providers. And although it
appears that Plaintiff experiences some relief from her symptoms as a result of her
medication, such periodic relief of symptoms is not inconsistent with disability. I
conclude that Plaintiff's treatment regimen does not provide a clear and convincing

discussion of Abbington’s treatment history, and Abbington does not claim that the
ALJ ignored relevant record evidence – indeed, the ALJ’s decision largely discusses
the evidence Abbington cites in her brief in support of this claim of error. Rather,
Abbington simply disagrees with how the ALJ interpreted that evidence. At most,
then, Abbington asks the Court to “reweigh the evidence[] or substitute [its]
judgment for that of the Commissioner.” Winschel, 631 F.3d at 1178 (quotation
omitted). See also Hunter v. Soc. Sec. Admin., Comm'r, 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.”); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (per curiam) (“The court need not
determine whether it would have reached a different result based upon the
record.”); Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as amended on
reh'g (Aug. 9, 2001) (“If the evidence is susceptible to more than one rational
interpretation, the court may not substitute its judgment for that of the
Commissioner.”). Longstanding circuit precedent forbids this Court from doing so.
Accordingly, the Court OVERRULES Abbington’s claim of error regarding her
treating physician’s opinion.
B.

Examining Physician’s Opinion

Abbington also claims that the ALJ reversibly erred in his consideration of
the medical opinion of consultative examiner Dr. Harris. The ALJ summarized that

reason for discounting her testimony.” (citations omitted)).
Absent any further assistance from Abbington, the undersigned declines to
further parse the ALJ’s judgment on this issue.

opinion as follows:
After his exam, Dr. Harris completed a “Medical Source Statement of
Ability To Do Work-Related Activities (Physical).” He indicated her
wrist pain limited her to lifting and carrying up to ten pounds
occasionally. He opined she could sit for 30 minutes at one time and a
total of four hours, stand for 35 minutes at one time and a total of two
hours, and walk for ten minutes at one time and a total of one hour.
He indicated she could occasionally operate foot controls due to back
pain and occasionally reach, handle, finger, feel, and push or pull due
to wrist pain. He reported knee pain limited her to occasional
balancing and climbing stairs, ramps, ladders, or scaffolds. He opined
she could never stoop, kneel, crouch, or crawl. He reported wrist and
back pain limited her to occasional exposure to operation of a motor
vehicle, extreme temperatures, vibrations, pulmonary irritants, and
humidity ad [sic] wetness. He opined she could tolerate no exposure to
unprotected heights and moving mechanical parts. (Exhibit 12F).
(R. 22).
The ALJ stated that he had given Dr. Harris’s opinion “some weight, as it is
not fully supported by his examination findings…” (R. 22). Nevertheless, the ALJ
then determined that Dr. Harris’s opinion was “substantially similar to the
claimant’s residual functional capacity and as such supports the findings in his
decision.” (R. 22).

While the ALJ could have better explained his rationale for

giving “some weight” to Dr. Harris’s opinion, 13 the ALJ provided a thorough

In particular, as the undersigned has previously observed, crediting a medical
opinion simply because it is consistent with the RFC the ALJ came up with is a
questionable justification. “[M]edical opinions, which are relevant evidence, see 20
C.F.R. §§ 404.1512(b)(1)(ii), 404.1527(a)(2), are to be examined and weighed as part
of the RFC assessment, rather than as post hoc justification for an RFC
predetermined without consideration of ‘all the relevant evidence.’ In other words,
at Step Four the evidence is supposed to justify the RFC, not vice versa.” Caffey v.
Colvin, Civil Action No. 15-00490-N, 2016 WL 6436564, at *10 (S.D. Ala. Oct. 28,
2016). See also Duffy v. Comm'r of Soc. Sec., 736 F. App’x 834, 836 (11th Cir. 2018)
13

summary of Dr. Harris’s examination notes (see R. 20), which were not particularly
lengthy, prior to weighing his opinion, and the undersigned finds that his
explanation provides a sufficient “measure of clarity” to allow the Court to
determine whether it is “rational and supported by substantial evidence.” Winschel,
631 F.3d at 1179. By finding that Dr. Harris’s opinion was not “fully supported by”
his notes but that it was nevertheless “substantially similar” to the RFC, the ALJ
sufficiently demonstrated that he gave “some,” but less than controlling, weight to
Dr. Harris’s opinion.14 Moreover, since it was from a non-treating physician, Dr.
Harris’s opinion was not entitled to deference. McSwain, 814 F.2d at 619.
Abbington primarily argues that the ALJ failed to clearly explain how he
considered two aspects of Dr. Harris’s opinion. First, she claims that the RFC failed
“to sufficiently account for Dr. Harris’s opinion that Abbington could lift and carry
up to 10 pounds occasionally, since the RFC states only that states that Abbington

(per curiam) (unpublished) (“In determining a claimant’s RFC, the ALJ must
consider all medical opinions in the claimant’s case record together with other
pertinent evidence.” (citing 20 C.F.R. § 404.1520(e), 416.920(e)).
Cf. Colon v. Colvin, 660 F. App'x 867, 870 (11th Cir. 2016) (per curiam)
(unpublished) (“Mr. Colon is correct that the ALJ erred in not stating the particular
weight that was given to Dr. Pothiawala's findings regarding his mental limitations
and in not mentioning the findings of Dr. Keven and Dr. Marino. See Winschel, 631
F.3d at 1179. But based on the record, we find that error was harmless...[W]e are
not left pondering why the ALJ made the decision he made. This is not a case like
Winschel, where the ALJ failed to provide enough information to know how he came
to his decision. See Winschel, 631 F.3d at 1179. We do not ignore the rest of the
opinion merely because of the ALJ’s failure to assign weight as to Dr. Pothiawala
and to mention the other two doctors. The ALJ’s discussion of Dr. Pothiawala's
opinion is in depth and does not leave us wondering how the ALJ came to his
decision. The ALJ’s order demonstrates thoughtful consideration of the findings and
supports the overall conclusion that Mr. Colon is not disabled.”).
14

“can lift and carry up to ten pounds” without any specified limitation as to
frequency.

(R. 15).

Second, Abbington claims that the ALJ should have fully

incorporated into the RFC Dr. Harris’s opinion that she could only occasionally
handle, finger, or feel, instead of determining that she could “frequently but not
continuously perform fine and gross manipulation such as grasping, gripping,
twisting, and turning…” (R. 15).
“At least where the opinion is not from a treating source, the Eleventh Circuit
imposes no rigid requirement that an ALJ, in crediting a medical opinion, must
repeat it word for word in the RFC determination.” Caffey v. Colvin, Civil Action
No. 15-00490-N, 2016 WL 6436564, at *9 (S.D. Ala. Oct. 28, 2016) (footnote omitted)
(citing cases)). See also Beegle v. Soc. Sec. Admin., Com'r, 482 F. App'x 483, 486
(11th Cir. 2012) (per curiam) (unpublished) (“A claimant’s residual functional
capacity is a matter reserved for the ALJ's determination, and while a physician’s
opinion on the matter will be considered, it is not dispositive.”). Moreover, here the
ALJ only gave Dr. Harris’s opinion “some weight,” so the RFC could not be expected
to mirror the opinion.
Abbington’s argument regarding Dr. Harris’s lift-and-carry opinion is largely
a semantic one, and the undersigned is not convinced that reversible error has been
shown on this point. By limiting Abbington to lifting and carrying up to 10 pounds,
the ALJ implicitly indicated that 10 pounds was the maximum she could lift and
carry, and one can reasonably assume that a person could be expected to lift and
carry the maximum weight which she is able only on an infrequent or occasional

basis. As for Dr. Harris’s manipulative limitations opinion, the ALJ expressly noted
that Dr. Harris’s report indicated that, while she “did not lace and unlace well,”
Abbington had “full range of motion of the elbows, wrists, and all finger joints[, her]
grip and pinch strength was 3/5[, and s]he was able to open and close doors, button
and unbutton, and pick up small objects.” (R. 20, 400 – 401). This is substantial
evidence supporting the ALJ’s decision to only give “some” weight to Dr. Harris’s
opinion regarding manipulative limitations.15
In sum, Abbington has failed to show reversible error in the ALJ’s
consideration of Dr. Roberts’s and Dr. Harris’s medical opinions. As explained in
the Court’s prior order (Doc. 26), she has also waived her Appointments Clause
challenge to the ALJ who denied her applications. There being no other claims of
error raised, the Court finds that the Commissioner’s final decision denying
Abbington benefits is therefore due to be AFFIRMED.
V.

Conclusion

In accordance with the foregoing analysis, and the analysis in the Court’s
order denying Abbington’s separate motion for remand (Doc. 26), it is ORDERED
that the Commissioner’s final decision denying Abbington’s June 9, 2014
applications for a period of disability, DIB, and SSI is AFFIRMED under sentence

Abbington claims that the ALJ felt pressured, as “an errant consideration of
judicial economy,” to give only some weight to Dr. Harris’s opinion because it was
rendered two months after the ALJ hearing and did not fully conform to the ALJ’s
hypothetical to the vocational expert at that hearing. This argument can be
rejected solely as being based on pure conjecture. However, even assuming it is
true, Abbington has still failed to show that substantial evidence does not support
the ALJ’s decision to give only some weight to Dr. Harris’s opinion.
15

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 26th day of February 2019.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE