Wimberley v. Berryhill

Filing 20

Order re: 1 Complaint filed by Troy Crandall Wimberley stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability, disability insurance benefits, and supplementalsecurity income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/29/19. (mpp) Copies to counsel

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TROY CRANDALL WIMBERLEY,

*
*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 17-00558-B

ORDER
Plaintiff Troy Crandall Wimberley (hereinafter “Plaintiff”)
seeks judicial review of a final decision of the Commissioner of
Social Security denying his claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et seq., and 1381, et seq.

On October 23, 2018, the parties

consented to have the undersigned conduct any and all proceedings
in this case.

(Doc. 16).

Thus, the action was referred to the

undersigned to conduct all proceedings and order the entry of
judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of
Civil Procedure 73.

(Doc. 17).

Upon careful consideration of the

administrative record and the memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner be AFFIRMED.

I.

Procedural History1
Plaintiff protectively filed his application for benefits on

March 26, 2015.

(Doc. 10-5 at 2).

Subsequently, he filed an

application for benefits on March 30, 2015, alleging disability
beginning February 7, 2014, based on lower back and neck disorders
and spina bifida.

(Id. at 4, 8; Doc. 10-6 at 15).

Plaintiff’s

application was denied and upon timely request, he was granted an
administrative hearing before Administrative Law Judge Ben E.
Sheely (hereinafter “ALJ”) on November 22, 2016.
41; Doc. 10-4 at 2).

(Doc. 10-2 at

Plaintiff, who was represented by counsel,

appeared by video from Evergreen, Alabama at the hearing and
provided testimony related to his claims.
59).

(Doc. 10-2 at 12, 44-

A vocational expert (“VE”) also appeared at the hearing and

provided testimony.

(Id. at 59-62).

On February 9, 2017, the ALJ

issued an unfavorable decision finding that Plaintiff is not
disabled.

(Id. at 9).

The Appeals Council denied Plaintiff’s

request for review on October 24, 2017.
the

ALJ’s

decision

dated

February

decision of the Commissioner.
Having

exhausted

his

9,

(Id. at 2).
2017,

became

Therefore,
the

final

(Id.).
administrative

timely filed the present civil action.

1

remedies,

(Doc. 1).

Plaintiff

Oral argument

The Court’s citations to the transcript in this order refer
to the pagination assigned in CM/ECF.

2

was conducted on November 27, 2018, and the parties agree that
this case is now ripe for judicial review and is properly before
this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.

Issues on Appeal
1. Whether the ALJ reversibly erred by failing
to weigh all the medical evidence of record
and failing to state the particular weight
he gave different medical opinions and the
reasons therefor?
2. Whether the ALJ erred in failing to develop
a full and fair record by ordering a
consultative orthopedic examination?
3. Whether the ALJ erred by failing to adequately
evaluate Plaintiff’s subjective complaints
of pain?

III. Factual Background
Plaintiff was born on September 9, 1971, and was forty-five
years of age at the time of his administrative hearing on November
22, 2016.

(Doc. 10-2 at 44; Doc. 10-5 at 8).

Plaintiff has a

tenth or eleventh grade education and can read and write.
10-2 at 44; Doc. 10-6 at 16).

(Doc.

Plaintiff last worked from 2010 to

February 2014 at Walmart, first in the garden center, then in
sporting goods, and finally in security.
Doc. 10-6 at 5, 33).

(Doc. 10-2 at 45-46;

Plaintiff was terminated from that job due

to poor job performance, which he attributed to his physical
condition.

(Doc. 10-2 at 47; Doc. 10-6 at 15).

Prior to that,

Plaintiff prepared concrete pipes from 2006 to 2008 and worked as
a wood stacker at a sawmill from 2005 to 2006.

3

(Doc. 10-2 at 46-

47; Doc. 10-6 at 33).

From 1999 to 2005, Plaintiff worked as a

barge crane and forklift operator.

(Doc. 10-2 at 47; Doc. 10-6 at

33).
At his hearing, Plaintiff testified he is no longer able to
perform his security job because of pain in his lower back, neck,
and legs.

(Doc. 10-2 at 47).

His medical treatment for neck and

lower back problems has consisted of taking medications, physical
therapy, and multiple injections.
50, 60, 64).

(Id. at 48-50; Doc. 10-7 at 46,

Plaintiff also reported headaches, which have been

treated with medication, including Topamax and Trokendi.

(Doc.

10-2 at 58; Doc. 10-7 at 128).
IV.

Standard of Review
In reviewing claims brought under the Act, this Court’s role

is a limited one.

The Court’s review is limited to determining

(1) whether the decision of the Commissioner is supported by
substantial evidence and (2) whether the correct legal standards
were applied.2
1990).

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.

A court may not decide the facts anew, reweigh the

evidence, or substitute its judgment for that of the Commissioner.
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

The

Commissioner’s findings of fact must be affirmed if they are based

2

This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).

4

upon substantial evidence.
(11th Cir. 1991).

Brown v. Sullivan, 921 F.2d 1233, 1235

“Substantial evidence is more than a scintilla,

but less than a preponderance” and consists of “such relevant
evidence as a reasonable person would accept as adequate to support
a conclusion.”
Cir. 1983).

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

In determining whether substantial evidence exists,

a reviewing court must consider the record as a whole, taking into
account

evidence

both

favorable

and

unfavorable

to

the

Commissioner’s decision. Chester v. Bowen, 792 F.2d 129, 131 (11th
Cir. 1986) (per curiam); Short v. Apfel, 1999 U.S. Dist. LEXIS
10163, at *4 (S.D. Ala. June 14, 1999).
V.

Statutory and Regulatory Framework
An individual who applies for Social Security disability

benefits must prove his or her disability.
416.912.

20 C.F.R. §§ 404.1512,

Disability is defined as the “inability to engage in any

substantial

gainful

activity

by

reason

of

any

medically

determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months[.]”

42 U.S.C.

§ 423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).
The Social Security regulations provide a five-step sequential
evaluation process for determining whether a claimant has proven
his or her disability.

See 20 C.F.R. §§ 404.1520, 416.920.

The claimant must first prove that he or she is not engaged

5

in substantial gainful activity. Carpenter v. Comm’r of Soc. Sec.,
614 F. App’x 482, 486 (11th Cir. 2015) (per curiam).

The second

step requires the claimant to prove that he or she has a severe
impairment or combination of impairments.

Id.

If, at the third

step, the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the claimant
is automatically found disabled regardless of age, education, or
work experience.

Id.

If the claimant cannot prevail at the third

step, the ALJ must determine the claimant’s residual functional
capacity (“RFC”) before proceeding to step four. Id. A claimant’s
RFC is an assessment, based on all relevant medical and other
evidence, of a claimant’s remaining ability to work despite his or
her impairments.
Cir. 1997).

Lewis v. Callahan, 125 F.3d 1436, 1440 (llth

Once a claimant’s RFC is determined, the evaluation

proceeds to the fourth step, where the claimant must prove an
inability to perform his or her past relevant work.

Carpenter,

614 F. App’x at 486.
If a claimant meets his or her burden at the fourth step, it
then becomes the Commissioner’s burden to prove at the fifth step
that the claimant is capable of engaging in another kind of
substantial gainful employment which exists in significant numbers
in the national economy, given the claimant’s RFC, age, education,
and work history.

Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.

1985) (per curiam). If the Commissioner can demonstrate that there

6

are such jobs the claimant can perform, the burden then shifts
back to the claimant to prove his or her inability to perform those
jobs in order to be found disabled.

Hale v. Bowen, 831 F.2d 1007,

1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562,
1564 (11th Cir. 1985)).
VI.

The ALJ’s Findings
In the case sub judice, the ALJ found that Plaintiff has the

severe impairments of degenerative disc disease and degenerative
joint disease.

(Doc. 10-2 at 14).

The ALJ also found that

Plaintiff’s headaches are non-severe because they cause no more
than a minimal limitation in Plaintiff’s ability to perform basic
work activities.

(Id. at 14-15).

The ALJ found that Plaintiff’s

impairments, when considered individually and in combination, do
not meet or medically equal any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
15).

(Id. at

The ALJ further found that Plaintiff has the RFC to perform

light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),
with

the

occasionally

following
climb

additional

ramps

and

limitations:

stairs,

balance,

Plaintiff
stoop,

can

kneel,

crouch, and crawl, and he can never climb ladders, ropes, or
scaffolds.

(Id.).

The ALJ concluded that Plaintiff is able to

perform his past relevant work as a security guard, cashier, and
barge crane operator, and that there are also other jobs in the

7

national economy that he is able to perform, such as airline
security representative and poultry dresser.

(Id. at 18-19).

Thus, the ALJ found that Plaintiff is not disabled.

(Id. at 19).

VII. Discussion
A. The ALJ properly weighed and discussed the
medical evidence of record, and substantial
evidence supports the ALJ’s Residual
Functional Capacity for a range of light
work with the stated restrictions.
Plaintiff argues that the ALJ failed to properly weigh all
the medical evidence of record and to state with particularity the
weight he gave to different medical opinions provided in this case
and the reasons therefor.

(Doc. 12 at 6).

The Commissioner

counters that Plaintiff’s arguments fail because he has not shown
that the ALJ’s findings as to his functional limitations were not
supported by substantial evidence.

(Doc. 13 at 5).

Based on a

careful review of the record, the Court finds that Plaintiff’s
arguments are without merit.
1.

Medical Evidence.

The record reflects that on November 10, 2014, Plaintiff
presented for treatment to his family medicine physician, Dr.
Charles M. Eddins, M.D.

(Doc. 10-7 at 18).

Plaintiff reported

neck pain and low back pain and radiating symptoms.

(Id.).

On

November 17, 2014, Dr. Eddins noted that Plaintiff’s lumbosacral
spine x-rays showed severe degenerative changes at L5-S1, while
his cervical spine x-rays were within normal limits.

8

(Id. at 17).

Dr.

Eddins

referred

Plaintiff

to

William

J.

orthopedist, who saw Plaintiff on two occasions.
13, 17).

M.D.,

an

(See id. at 10-

Dr. Bose sent Plaintiff for cervical and lumbar spine

MRIs on December 10, 2014.
spine

Bose,

MRI

was

(Id. at 13).

negative, while

his

Plaintiff’s cervical

lumbar

spine

MRI

revealed

discogenic disease at L5-S1 including a small central broad-based
protrusion, and left asymmetric bulging laterally encroaching on
the exiting L5 nerve root, as well as mild facet arthropathy.
at

5-6).

Dr.

Bose

assessed

Plaintiff

with

(Id.

cervical

pain/cervicalgia, lumbar degenerative disc disease, and occipital
neuralgia and recommended referral to a neurologist for work up
and treatment of occipital neuralgia.

(Id. at 10-11).

On January 6, 2015, Plaintiff was examined by Donald R. Tyler,
M.D.,

a

neurosurgeon

at

Coastal

Neurological

Institute,

for

complaints of neck pain, bilateral arm pain, bilateral arm and
hand numbness, low back pain, and left leg pain and numbness.
at

37).

Dr.

Tyler

diagnosed

Plaintiff

with

low

back

(Id.
pain,

cervicalgia, and lumbar and cervical degenerative disc disease.
(Id. at 40).
At Dr. Tyler’s request, Plaintiff first presented to Jonathan
C. Rainer, M.D. at Coastal Neurological Institute on January 14,
2015.

(Id. at 52).

This was the beginning of a treatment

relationship that would involve frequent visits and last more than
a year.

At the initial visit, Dr. Rainer diagnosed Plaintiff with

9

myalgia/arthromyalgia/myositis,

cervicalgia,

lumbar

spine

degenerative disc disease, unspecified musculoskeletal disorder of
the neck, and low back pain.

(Id. at 56).

Dr. Rainer prescribed

Gabapentin and Tizanidine and noted there were no surgical plans.
(Id.).

He

Plaintiff’s

recommended
lumbar

an

epidural

steroid

pain 3 and

physical

therapy

injection
and

for

medication

changes for Plaintiff’s “myofascial cervical symptoms and facet
generated pain[.]” (Id.). In March 2015, after Plaintiff reported
continuing lower back and neck pain with radicular symptoms, Dr.
Rainer recommended a right occipital block4 and ordered physical
therapy.

(Id. at 42, 45-46).

The next month, Plaintiff told Dr.

Rainer that his right occipital block had provided partial relief
for a few days before his radicular cervical spine pain returned.
(Id. at 70).
Plaintiff had MRIs of the lumbar spine, cervical spine, and
brain done on May 20, 2015.

(Id. at 86-89).

The lumbar spine MRI

3

Plaintiff underwent right L5-S1 lumbar interlaminar epidural
steroid injections on January 20, 2015, March 3, 2015, and February
25, 2016, a bilateral L5-S1 transforaminal epidural injection on
August 4, 2015, and a caudal epidural steroid injection on
September 10, 2015.
(Doc. 10-7 at 42, 47, 108, 129, 136).
Plaintiff typically reported partial and temporary pain relief
from these injections. (See id. at 42, 47, 103, 119).
4

Plaintiff underwent a right occipital block on April 1, 2015.
(Doc. 10-7 at 70). He also had medial branch blocks on the left
at C4-C6 and on the right at C2-C4 performed on May 7, 2015 and on
February 25, 2016. (Id. at 65, 137).

10

showed Grade 1 retrolisthesis at L5 on S1 and a right paracentral
disc osteophyte complex with facet arthropathy and mild bilateral
neuroforaminal stenosis.

(Id. at 87).

The MRI of the cervical

spine showed no acute findings, but the brain MRI showed minimal
pansinusitis and scattered foci of increased intensity on FLAIR
within the white matter including the centrum semiovale, which was
noted to be “nonspecific but can be seen with migraines[.]”5

(Id.

at 89).
On July 1, 2015, Plaintiff returned to Dr. Rainer and reported
neck pain radiating to the right shoulder and anterior bicep and
headaches.

(Id. at 60).

He also reported that his medications

were helping to make his pain tolerable.

(Id.).

Plaintiff showed

positive impingement signs in his right shoulder and a positive
Speed’s test on the right, but Dr. Rainer noted “[t]here were
certainly

no

impingement.”
subacromial

pathology

on

his

2014

(Id. at 63-64).
bursa

impingement/biceps

injection
tendinitis,”

5

MRI

indicative

of

neural

Dr. Rainer performed a right
for
from

Plaintiff’s
which

Plaintiff

“shoulder
reported

On July 29, 2015, Dr. Rainer reviewed the May 2015 MRI images.
(Id. at 130). He noted that the cervical spine was “essentially
unchanged from 2014 MRI.” (Id.). He found the new lumbar MRI
significant for mild L4-L5 and L5-S1 facet arthropathy with severe
L5-S1 disc degeneration including foraminal stenosis bilaterally
and noted that Plaintiff’s other lumbar discs appeared in good
condition, his alignment was normal, and there was no evidence of
fracture. (Id.).

11

temporary forty percent relief.

(Id. at 64, 130).

On July 17, 2015, Plaintiff saw neurology resident Jordan
Combs, M.D. at the University of South Alabama Hospital with a
chief complaint of chronic back pain.

(Id. at 90).

Dr. Combs’

physical examination of Plaintiff showed normal gait, decreased
range of motion of the bilateral upper and lower extremities, and
reproducible numbness with crossing of legs.

(Id. at 91).

Dr.

Combs referred Plaintiff to neurosurgery for possible surgical
management or epidural block.

(Id.).

On September 3, 2015, Plaintiff presented to neurosurgeon
Anthony M.

Martino,

M.D.

at

the

University

of

South

Alabama

Department of Neurosurgery for evaluation of his lower back, neck,
and shoulder pain.

(Id. at 94).

Dr. Martino’s neurological

examination of Plaintiff was normal.

(Id. at 94-95).

Dr. Martino

reviewed Plaintiff’s recent MRIs and noted that the cervical MRI
was stable and the lumbar MRI revealed degenerative changes but
“no significant evidence of nerve root compression.”

(Id. at 95).

Dr. Martino recommended physical therapy and stated that no further
neurosurgical intervention was recommended, as Plaintiff “is not
a surgical candidate.”
After

reviewing

(Id.).
Plaintiff’s

May

2015

MRIs,

Dr.

Rainer

referred Plaintiff to neurologist Charles S. Markle, M.D. at
Coastal

Neurological

Institute

for

and

cervical

complaints, because they “may all stem from migraine.”

(Id. at

12

his

headache

130, 134).

Plaintiff first saw Dr. Markle on August 7, 2015.

at 124).

He reported having headaches for eight months with

associated dizziness, visual aura, and photophobia.

(Id.

(Id.).

Dr.

Markle noted that Plaintiff’s brain MRI “did show some white matter
changes consistent with migraine or ischemic changes.”

(Id.).

He

prescribed medication for Plaintiff’s headaches and recommended
that Plaintiff quit smoking.

(Id. at 128).

In a follow-up visit

twelve days later, Plaintiff reported having less headaches with
the Topamax but getting a “brief ‘sharp pain’ in the head” every
time he took the medication. (Id. at 114). Dr. Markle changed
Plaintiff’s headache medication to Trokendi 50 mg.
On October

1,

2015,

Plaintiff

told

Dr.

(Id. at 118).

Markle

that

headaches were less severe and less frequent with Trokendi.
at 98).

his
(Id.

Dr. Markle stated that “last time [Plaintiff] seemed to

have some hand numbness but he really denies that now.”

(Id.).

Dr. Markle increased Plaintiff’s dosage of Trokendi to 100 mg
daily.

(Id.

at

102).

In

January

2016,

Plaintiff

reported

radiating neck and lower back pain and headaches to Dr. Rainer.
(Id. at 138).
injections

and

However, he also reported getting relief from
medications,

which

“allow[ed]

him

to

function

daily[,]” and Dr. Rainer noted that Plaintiff’s medications were
helping “to a significant degree[.]”

(Id.).

Thereafter, the record reflects that Plaintiff visited Dr.
Eddins for a check-up on May 30, 2016.

13

(Doc. 10-8 at 19).

Dr.

Eddins’ notes reflect that he had not seen Plaintiff since 2014.
(Id.).

He

assessed

Plaintiff

with

abdominal

pain,

gastroesophageal reflux disease, and weight loss, which Plaintiff
attributed to being more active and “working on his diet.”
2.

The ALJ’s Findings.

The

ALJ

(Id.).6

amply

examination findings.

summarized

Plaintiff’s

relevant

clinical

Examinations of Plaintiff performed during

the dates of treatment summarized above yielded the following
findings: bilateral cervical and lumbar muscle spasm; decreased
cervical range of motion; cervical tenderness; positive cervical
compression distraction; increased cervical paraspinal tone with
a forward deviated posture; positive Spurling’s test; positive
impingement signs in the right shoulder and positive Speed’s test
on the right; positive Tinel’s sign; decreased range of motion of
the upper and lower extremities; tenderness to palpation over the
right occipital protuberance; lumbar tenderness with decreased
flexion and pain with extension; reduced range of motion in the
lower back; decreased light touch sensation in the bilateral C6
distribution versus median nerve but otherwise normal sensation;
pain caused by walking on toes and heels; numbness caused by

6

Dr. Eddins’ subsequent records from June, July, and October
2016 show that he prescribed various medications for Plaintiff,
including diclofenac, Horizant, Effexor, Tramadol, and Trokendi.
(Doc. 10-8 at 16-18).

14

crossing of legs; and positive straight leg raise.

(See Doc. 10-

7 at 10, 13, 17-18, 40, 44, 49-50, 55, 63, 68, 72-73, 77, 82-83,
91, 100, 106, 112, 116-17, 122, 126-27, 133, 141).

Other physical

examination findings during this same period reflect full and painfree

range

of

motion

in

the

shoulders

and

upper

and

lower

extremities; no spinal deformity or scoliosis; no motor or sensory
deficits;

negative

Spurling’s

results;

no

deformity

in

the

extremities with normal, full, or functional range of motion of
all joints; full or normal strength in both upper and lower limbs;
negative

Hoffman’s

sign

bilaterally;

negative

Tinel’s

sign;

negative Babinski’s sign bilaterally; negative Romberg’s test;
good

grip

strength

bilaterally;

full

and

functional

muscle

strength and tone; normal reflexes; normal gait; normal posture;
and normal neurological exam results.

(See id. at 10, 13, 17-18,

39-40, 44-45, 49-50, 55, 63, 68, 72-73, 77-78, 82-83, 91, 94-95,
100-01, 106, 112, 116-17, 122, 126-27, 133, 141).
In addition to Dr. Martino’s statement that Plaintiff is not
a

surgical

candidate,

the

Plaintiff’s

neck

back-related

consistently

noted

and
that

physician

conservative

who

primarily

complaints,
management

Dr.

treated
Rainer,

options

were

explained and that “[t]here are no surgical plans at present.”7

7

Dr. Tyler also noted that “[c]onservative (non-surgical)
management options were explained” and that “[t]here are no
surgical plans.” (Doc. 10-7 at 41). However, on the same page of
his treatment record, Dr. Tyler wrote: “Details and possible
15

(See, e.g., id. at 56).
Dr.

Markle

show

that

Further, the records of Dr. Rainer and
Plaintiff’s

pain

was

relieved,

albeit

partially and generally temporarily, by medication and injections.
(See id. at 42, 47, 60, 65, 70, 98, 103, 114, 119, 138).
As part of the disability determination process, the ALJ is
tasked

with

weighing

the

opinions

and

examining, and non-examining physicians.

findings

of

treating,

In reaching a decision,

the ALJ must specify the weight given to different medical opinions
and the reasons for doing so.

See Winschel v. Comm’r of Soc. Sec.,

631 F.3d 1176, 1179 (11th Cir. 2011).
reversible error.

The failure to do so is

See Williams v. Astrue, 2009 U.S. Dist. LEXIS

12010, at *4, 2009 WL 413541, at *1 (M.D. Fla. Feb. 18, 2009).
The ALJ must give “substantial weight” to the opinion of a
claimant’s treating physician, unless “good cause” exists for not
doing so.

Costigan v. Comm’r, Soc. Sec. Admin., 603 F. App’x 783,

788 (11th Cir. 2015) (per curiam) (citing Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (per curiam)).
“The opinion of a one-time examining physician” is not entitled to
the same deference as that of a treating physician.

Petty v.

Astrue, 2010 U.S. Dist. LEXIS 24516, at *50, 2010 WL 989605, at
*14 (N.D. Fla. Feb. 18, 2010) (citing Crawford, 363 F.3d at 1160).

complications of the proposed surgery were discussed.” (See id.).
Thus, it appears that surgery was discussed and ruled out.

16

Also, an “ALJ is required to consider the opinions of non-examining
state agency medical and psychological consultants because they
‘are highly qualified physicians and psychologists who are also
experts in Social Security disability evaluation.’”

Milner v.

Barnhart, 275 F. App’x 947, 948 (11th Cir. 2008) (per curiam)
(citing 20 C.F.R. § 404.1527(f)(2)(i)).

“The ALJ may rely on

opinions of non-examining sources when they do not conflict with
those of examining sources.”

Id. (citing Edwards v. Sullivan, 937

F.2d 580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining physicians, good cause to discredit the testimony of
any medical source exists when it is contrary to or unsupported by
the evidence of record.
(11th Cir. 2004).

Phillips v. Barnhart, 357 F.3d 1232, 1240

“Good cause may also exist where a doctor’s

opinions are merely conclusory, inconsistent with the doctor’s
medical records, or unsupported by objective medical evidence.”
Hogan v. Astrue, 2012 U.S. Dist. LEXIS 108512, at *8, 2012 WL
3155570, at *3 (M.D. Ala. Aug. 3, 2012).

The ALJ is “free to

reject the opinion of any physician when the evidence supports a
contrary conclusion.”

Sryock, 764 F.2d at 835 (citation omitted);

Adamo v. Comm’r of Soc. Sec., 365 F. App’x 209, 212 (11th Cir.
2010) (per curiam) (“The ALJ may reject any medical opinion if the
evidence supports a contrary finding.”).
Although

an

ALJ's

explanation

17

of

his

decision

must

sufficiently

explain

the

weight

given

to

obviously

probative

exhibits, an ALJ need not discuss every piece of evidence, so long
as the decision enables the reviewing court to conclude that the
ALJ considered the claimant’s medical condition as a whole.

See

Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per
curiam).8
Plaintiff first complains that the ALJ “did not discuss the
opinion” of his “primary pain specialist, Dr. Donald Tyler, other
than to state that the treatment consisted of physical therapy,
injection therapy, anti-inflammatory, muscle relaxant and pain
medications.”
number

of

(Doc. 12 at 6).

reasons.

First,

This argument lacks merit for a
the

record

flatly

contradicts

Plaintiff’s characterization of Dr. Tyler as his “primary pain

8

Plaintiff cites the unpublished decision in Baez v. Comm'r of
Soc. Sec., 657 F. App’x 864 (11th Cir. 2016) (per curiam), in
support of his contention that the ALJ reversibly erred by failing
to weigh and address with the requisite particularity several
medical “opinions” contained in the record. (See Doc. 12 at 78).
In Baez, the court vacated and remanded a case to the
Commissioner for further proceedings because the ALJ failed to
assign weight to the diagnosis made by a treating physician whose
records,
even
without
a
medical
source
statement,
were
“comprehensive[,]” and because the ALJ failed to discuss the
opinion of an examining physician. See Baez, 657 F. App’x at 870.
The panel in Baez noted that “[m]edical reports should include
medical source statements that discuss what a claimant can still
do despite any impairment” but found that the absence of such a
statement by a treating doctor did not “relieve the ALJ from the
duty to assign substantial or controlling weight to the opinion of
a treating physician absent good cause to the contrary.” Id. at
870. For the reasons stated infra, the Court does not find the
result in Baez to be controlling in this case.

18

specialist.”

Dr. Tyler examined Plaintiff only once, during his

initial evaluation at Coastal Neurological Institute.

The record

reflects that all of Plaintiff’s subsequent treatment at Coastal
Neurological Institute was with Dr. Rainer, who primarily treated
Plaintiff’s complaints relating to his neck and back, and with Dr.
Markle, who primarily treated Plaintiff for headaches.

According

to Social Security regulations, a treating source is an acceptable
medical source that provides a claimant “with medical treatment or
evaluation and has, or has had, an ongoing treatment relationship
with [the claimant].”

20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).

Dr. Tyler was not a treating provider whose opinion the ALJ was
required to accord to substantial weight absent good cause shown,
because

he

only

examined

Plaintiff

treatment relationship with him.

once

and

had

no

ongoing

See Medina v. Soc. Sec. Admin.,

636 F. App’x 490, 493 (11th Cir. 2016) (per curiam).
Further, Plaintiff fails to specify any relevant medical
opinion that was offered by Dr. Tyler and not considered by the
ALJ. 9

The

records

from

Coastal

Neurological

Institute

were

unaccompanied by a medical source statement, and the only notations

9

“Medical opinions are statements from 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 and mental
restrictions.” 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1).

19

from Dr. Tyler that could be construed as “medical opinions” were
his diagnoses of Plaintiff with low back pain, cervicalgia, lumbar
spine degenerative disc disease, and cervical spine degenerative
disc disease, which Dr. Tyler did not expand upon.
7 at 37-41).

(See Doc. 10-

Although the ALJ did not mention Dr. Tyler by name

in his decision, he found Plaintiff’s degenerative disc disease to
be

a

severe

impairment,

and

his

decision

cited

Plaintiff’s

complaints of neck pain, cervical radiculopathy, low back pain,
and lumbar radiculopathy that were documented by Dr. Tyler, as
well as Dr. Tyler’s examination findings of muscle spasm, normal
range of motion in the upper and lower extremities, normal gait
and posture, and normal strength.
7 at 39-40).
in

his

(See Doc. 10-2 at 16; Doc. 10-

Dr. Tyler’s diagnoses are not in dispute, and nowhere

notes

did

Dr.

Tyler

suggest

that

Plaintiff

had

functional limitations beyond than those found by the ALJ.

any
See

Harry v. Colvin, 2016 U.S. Dist. LEXIS 121084, at *44, 2016 WL
4708009, at *15 (N.D. Ga. Sept. 8, 2016) (“Unlike the facts of
Baez, the lack of a definitive diagnosis is not a concern in this
case since Ms. Harry’s BPD diagnosis is not being questioned and
was considered by the ALJ.

In addition, the treating physician in

Baez had ‘comprehensive’ treatment records that the ALJ assigned
no weight.

Here, Dr. Sandhu’s original diagnosis is found within

a two-page document.”); Figueroa v. Comm’r of Soc. Sec., 2017 U.S.
Dist. LEXIS 181734, at *16, 2017 WL 4992021, at *6 (M.D. Fla. Nov.

20

2, 2017) (“[A] diagnosis of a condition does not establish that
Plaintiff has additional work-related limitations.”).
Even assuming arguendo that the ALJ should have expressly
discussed

Dr.

Tyler’s

evaluation

of

Plaintiff

and

expressly

assigned his diagnoses some weight, it would not have changed the
decision in any way.

Accordingly, any error by the ALJ in failing

to specifically discuss and assign weight to Dr. Tyler’s diagnoses
was harmless.

See Wright v. Barnhart, 153 F. App’x 678, 684 (11th

Cir. 2005) (per curiam) (“Although the ALJ did not explicitly state
what weight he afforded the opinions of Hahn, Fritz, Shivashankara,
and Gornisiewicz, none of their opinions directly contradicted the
ALJ's findings, and, therefore, any error regarding their opinions
is harmless.

That is, while each of these doctors found that

Wright suffered from chronic pain or conditions associated with
chronic pain, not one of these doctors indicated that Wright is
unable to perform sedentary work as a result of that pain.”)
(internal citation omitted); Gosline v. Berryhill, 2017 U.S. Dist.
LEXIS 219256, at *18, 2017 WL 8222661, at *6 (M.D. Ga. Dec. 5,
2017) (“Where the failure to articulate and assign weight to
medical

opinions

determination,

would

however,

not
the

change
error

is

or

contradict

harmless.”),

the

ALJ’s

report

and

recommendation adopted, 2018 U.S. Dist. LEXIS 41395, 2018 WL
1321039 (M.D. Ga. Mar. 14, 2018); Tillman v. Comm’r, Soc. Sec.
Admin., 559 F. App’x 975, 975-76 (11th Cir. 2014) (per curiam)

21

(finding the ALJ's failure to expressly weigh two medical opinions
harmless because the ALJ expressly considered and discussed the
evidence on which the doctors based their opinions).
Of

course,

Dr.

Rainer

and

Dr.

Markle

both

had

ongoing

treatment relationships with Plaintiff and were therefore treating
sources whose medical opinions the ALJ was required to assign
controlling
contrary.
Markle

by

or

substantial

weight

absent

good

cause

to

the

The ALJ’s decision fails to mention Dr. Rainer and Dr.
name,

but

it

does

include

multiple

citations

references to the Coastal Neurological Institute records.
Doc. 10-2 at 14, 16-17).

and
(See

Indeed, the ALJ’s decision documents the

complaints made by Plaintiff to his treating doctors at Coastal
Neurological Institute, their relevant examination findings, and
their treatment of Plaintiff with medications and injections. (See
id.).
The undersigned is satisfied that the ALJ thoroughly reviewed
the records from Coastal Neurological Institute and adequately
referenced the relevant portions thereof.

Neither Dr. Rainer nor

Dr. Markle submitted a medical source statement discussing what
Plaintiff is able to do despite his diagnosed impairments.

Thus,

any medical opinions offered by Dr. Rainer and Dr. Markle consisted
primarily of their diagnoses, which are not at issue, and the Court
can find no opinion from either doctor indicating that Plaintiff’s
functional limitations exceed those found by the ALJ. Accordingly,

22

the ALJ’s failure to articulate the weight assigned to any medical
opinions

contained

in

the

treatment

records

from

Coastal

Neurological Institute did not materially impact his decision, and
any

error

in

failing

to

assign

weight

to

such

opinions

was

harmless.
Likewise, Plaintiff’s allegation that the ALJ did not discuss
the “opinions” of his treating orthopedist, Dr. Bose, is not welltaken.

Similar to Dr. Rainer and Dr. Markle, the only statements

in Dr. Bose’s notes that were arguably “medical opinions” were his
interpretations

of

radiological

studies

and

his

diagnoses

of

cervical pain/cervicalgia, lumbar degenerative disc disease, and
occipital neuralgia.

(See Doc. 10-7 at 10-13).

Although the ALJ

did not mention Dr. Bose by name, he cited and referenced Dr.
Bose’s brief office notes from Plaintiff’s two dates of treatment
multiple times in his decision.

(See Doc. 10-2 at 16-17).

Thus,

assuming arguendo that the ALJ erred in not expressly assigning
weight to Dr. Bose’s diagnoses, any such error was harmless.
Plaintiff further complains that the ALJ did not discuss the
opinion of orthopedist Guy Rutledge III, M.D., who saw Plaintiff
for low back pain on September 1, 2011, more than two years before
the alleged onset date of his disability.
10-7 at 4).

(See Doc. 12 at 8; Doc.

However, in addition to the fact that Dr. Rutledge

did not treat or examine Plaintiff during the relevant period, his
opinions, to the extent he offered any, were consistent with the

23

ALJ’s findings and with the medical evidence discussed by the ALJ.
Dr. Rutledge reviewed lumbar spine x-rays, which showed disc
narrowing at L5-S1 with a traction spur at L5, and diagnosed
Plaintiff

with

lumbar

spondylosis.

(Doc.

10-7

at

4).

Dr.

Rutledge’s physical examination was normal, revealing no local
tenderness, free hip range, negative straight leg raise, intact
pulses, and normal reflexes.

(Id.).

Dr. Rutledge told Plaintiff

his underlying condition was “not caused by his work but could be
aggravated by his work” and gave Plaintiff a slip to return to
work.

(Id.). Based on the foregoing, the undersigned is satisfied

that nothing in Dr. Rutledge’s 2011 office note required reference
in the ALJ’s decision, and Dr. Rutledge’s office note certainly
does not suggest that Plaintiff had any additional or more severe
impairments or limitations than those found by the ALJ.
Plaintiff also faults the ALJ for not discussing the August
24, 2011 radiology report of Carl Blunck, M.D.

(Doc. 12 at 8).

Dr. Blunck’s impression from a lumbar spine series of x-rays was
as follows: “Moderate diffuse spondylitic and degenerative disc
changes which have a more severe accelerated degenerative disc
change at L5-S1.
listed

age.

These findings are accelerated for clinically

There

is

otherwise

no

evidence

of

significant

alignment abnormality or vertebral body compression. No other
acute changes.”

(Doc. 10-7 at 27).

However, as the ALJ discussed,

the record contains more recent radiology reports from the alleged

24

disability period, including lumbar spine x-rays and MRIs from
2014 and 2015.

There was no reason for the ALJ to discuss findings

from a series of x-rays done more than two years before the onset
of Plaintiff’s alleged disability which, in any event, were similar
to the results of the more recent studies.
Although
discussed

Plaintiff

the

opinions

concedes
of

Dr.

that

the

Martino

ALJ

with

weighed
the

and

requisite

particularity, he nevertheless argues that the ALJ failed to
properly characterize Dr. Martino’s records.

(Doc. 12 at 6).

As

noted above, Dr. Martino found Plaintiff’s 2015 cervical spine MRI
to be stable and his 2015 lumbar spine MRI to show degenerative
changes at L5/S1 with grade I spondylolisthesis and no significant
evidence of nerve root compression.

(Id. at 95).

Dr. Martino

recommended no further neurosurgical intervention, stated that
Plaintiff was not a surgical candidate, and recommended that
Plaintiff begin physical therapy for his neck and low back. (Id.).
Dr.

Martino

offered

no

opinion

limitations Plaintiff may have.

pertaining

to

any

functional

(See id. at 94-95).

Plaintiff

asserts that the ALJ “failed to state that Dr. Marino’s [sic]
neurological recommendation against surgery applied only to the
plaintiff’s cervical (neck) problems.”
a

fair

review

of

Dr.

Martino’s

(Doc. 12 at 6).
records

shows

However,
that

his

recommendation against surgery clearly applied to both Plaintiff’s
neck and lower back, and the Court can find no error in the ALJ’s

25

characterization of Dr. Martino’s findings.
While Dr. Bose, Dr. Tyler, Dr. Rainer, Dr. Martino, and Dr.
Markle all did not offer opinions as to Plaintiff’s functional
capacity and limitations, the record contains medical opinions
concerning Plaintiff’s ability to function, the first provided by
a non-examining State agency reviewer and the second furnished by
Plaintiff’s family medicine physician, Dr. Eddins.

The record

shows that on June 10, 2015, a State agency medical reviewer,
Eugene Saiter, M.D., reviewed Plaintiff’s medical records and
completed

a

Physical

RFC

assessment,

wherein

he

opined

that

Plaintiff is able to perform light work, except that he can
occasionally climb ramps and stairs, stoop, kneel, crouch, and
crawl, never climb ladders, ropes, or scaffolds, and should avoid
concentrated exposure to unenclosed heights.
16).

The

ALJ

accorded

substantial

weight

(Doc. 10-3 at 14to

Dr.

Saiter’s

assessment because his opinions were generally consistent with the
record as a whole.

(Doc. 10-2 at 17).

Based on the evidence detailed above, the Court finds that
Dr. Saiter’s opinions are consistent with the substantial medical
evidence in this case and do not conflict with the credible
opinions of any treating or examining sources.
properly accorded them substantial weight.

Therefore, the ALJ

See Harris v. Colvin,

2014 U.S. Dist. LEXIS 159749, at *25, 2014 WL 5844240, at *8 (S.D.
Ala. Nov. 12, 2014).

26

The record further reflects that Dr. Eddins submitted a
Clinical Assessment of Pain (“CAP”) form dated December 2, 2016,
wherein he opined that Plaintiff’s “[p]ain is present to such an
extent as to be distracting to adequate performance of daily
activities or work[,]” and that physical activity would greatly
increase Plaintiff’s level of pain “to such a degree as to cause
distraction from task or total abandonment of task.”
at 26).

(Doc. 10-8

Beneath his signature, Dr. Eddins added the following

handwritten qualification: “I am not the physician who is primarily
treating this patient’s musculoskeletal pain.

I was asked for my

opinion based on his appointments with me in the past – the above
represents this limited evaluation by me.”

(Id. at 27).

The ALJ

stated that he gave Dr. Eddins’ “overly restrictive” assessment
little weight, because although Dr. Eddins was a treating source,
Dr. Saiter’s assessment was more consistent with the record as a
whole, and because Dr. Eddins acknowledged that his assessment was
based on limited information since he was not the primary treater
of Plaintiff’s musculoskeletal complaints.

(Doc. 10-2 at 17-18).

The Court agrees that the ALJ had good cause to discount Dr.
Eddins’

opinions

Plaintiff’s pain.

as

to

the

degree

and

limiting

effects

of

First, Dr. Eddins himself characterized his

evaluation as “limited” because of his very minor role in treating
and evaluating Plaintiff’s musculoskeletal complaints.

Further,

the objective medical evidence, and in particular the relevant x-

27

rays

and

MRIs,

restrictive

assessment

Plaintiff’s
treatment

simply

medical
plan,

does
of

support

Plaintiff’s

records

no

not

document

a

hospitalizations,

physical examination findings.

Dr.

Eddins’

ability

to

uniformly
and

highly

function.

conservative

frequently

normal

Moreover, Plaintiff’s treatment

records show that the medications and injections provided by his
treating physicians at Coastal Neurological Institute provided
partial relief and allowed him to function daily.

And, Dr. Eddins

indicated on the CAP form that while Plaintiff would experience
some side effects from his prescribed medications, they would not
be

to

such

instances.
evidence

a

degree

as

to

create

(Doc. 10-8 at 26).
is

inconsistent

serious

problems

in

most

In sum, the foregoing substantial

with

the

opinions

of

severe

pain

limitations offered by Dr. Eddins.
Based on all of the foregoing, the Court is also satisfied
that substantial evidence supports the ALJ’s RFC determination
that Plaintiff can perform a range of light work with the stated
restrictions.

Therefore, Plaintiff’s claim must fail.10

10

Although Plaintiff has cited evidence in the record which he
claims supports a finding that he is disabled, that is, at best,
a contention that the record evidence supports a different finding.
That is not the standard on review. The issue is not whether there
is evidence in the record that would support a different finding,
but whether the ALJ’s finding is supported by substantial evidence.
See Figueroa, 2017 U.S. Dist. LEXIS 181734, at *15, 2017 WL
4992021, at *5 (“Although Plaintiff cites to certain test results,
notes, and physical therapy findings as support for her contention
that ‘there were objective medical findings that support the
28

B. The ALJ did not err in failing to develop
the record by not ordering a consultative
orthopedic examination.
Plaintiff next argues that the ALJ failed to develop a full
and

fair

record

examination.

by

not

ordering

(Doc. 12 at 8).

a

consultative

orthopedic

The Commissioner counters that it

was Plaintiff’s own burden to produce evidence of his disability
and that, in any event, the record contained sufficient medical
evidence and other evidence of Plaintiff’s functional limitations.
(Doc. 13 at 9).

Having reviewed the record at length, the Court

finds that Plaintiff’s claim is without merit.
It is well-established that a hearing before an ALJ in a
social security case is inquisitorial and not adversarial.

Ingram

v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir.
2007).

A claimant bears the burden of proving disability and of

producing evidence in support of his claim, while the ALJ has “a
basic duty to develop a full and fair record.”

Ellison v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam); see
also Ingram, 496 F.3d at 1269.
In fulfilling the duty to conduct a full and fair inquiry,
the ALJ is required to order a consultative examination where the

doctor’s opinions about [her] limitations’ . . ., this is, at best,
a contention that the record could support a different finding.
This is not the standard on review. The issue is not whether a
different finding could be supported by substantial evidence, but
whether this finding is.”) (emphasis in original).

29

record establishes that such an examination is necessary to enable
the ALJ to render a decision.
1210 (11th Cir. 1988).

Holladay v. Bowen, 848 F.2d 1206,

However, the ALJ is not required to order

a consultative examination where the record contains sufficient
evidence to permit the ALJ to make an informed decision.
496 F.3d at 1269.

Ingram,

Further, “there must be a showing of prejudice

before [the court] will find that the claimant’s right to due
process has been violated to such a degree that the case must be
remanded to the Secretary for further development of the record.”
Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (per curiam).
In evaluating the necessity for a remand, the Court is guided by
“whether the record reveals evidentiary gaps which result in
unfairness or clear prejudice.”

Id. (citations and internal

quotation marks omitted).
In the instant case, the record before the ALJ included the
medical records from the physicians who treated and evaluated
Plaintiff for his musculoskeletal complaints and headaches, and
the record contains no discernible evidentiary gaps related to
those

impairments.

neurological
Additionally,

The

examination
the

record

record

includes

findings

from

contains

the

many

physical

various
results

and

providers.
of

multiple

radiology studies, including x-rays of Plaintiff’s cervical and
lumbar spine and MRIs of Plaintiff’s lumbar spine, cervical spine,
and brain, some of which were reviewed by multiple doctors.

30

The

ALJ also had before him the evaluation by the State agency medical
reviewer.
The ALJ provided an accurate summary of Plaintiff’s medical
treatment, including Plaintiff’s treatment or evaluation by Dr.
Eddins, Dr. Bose, Dr. Tyler, Dr. Rainer, Dr. Combs, Dr. Markle,
and Dr. Martino.

Contrary to Plaintiff’s assertion, the ALJ did

not “disregard[] medical opinions of orthopedists in the record.”
(See Doc. 12 at 8).

The ALJ referenced the findings of Dr. Bose,

the orthopedist who treated Plaintiff during the relevant period,
more than once.

(See Doc. 10-2 at 16-17).

In view of the robust record of treatment and examinations,
including x-ray and MRI evidence, the undersigned finds that the
evidence before the ALJ was more than sufficient to allow him to
render an informed decision.

Indeed, the undersigned can detect

no conflict, ambiguity, evidentiary gap, or other insufficiency in
the medical evidence that would have required a consultative
orthopedic examination for the ALJ to make an informed decision.
Thus, the ALJ was not required to order a consultative orthopedic
examination,

and

accordingly,

Plaintiff’s

claim

that

the

ALJ

failed to develop the record must fail.
C.

The ALJ did not err in his evaluation of
Plaintiff’s
subjective
symptoms,
including pain.

Last, Plaintiff argues that the ALJ failed to adequately
evaluate his subjective complaints of pain.

31

(Doc. 12 at 9).

Specifically, Plaintiff argues that the ALJ failed to fully review
and consider the entire record and only selectively referred to
medical records, and that the ALJ failed to comply with Social
Security Ruling 16-3p (“SSR 16-3p”) in evaluating the intensity,
persistence,

and

limiting

complaints of pain.11

effects

(Id. at 9-12).

of

Plaintiff’s

subjective

The Commissioner counters

that the ALJ adequately considered Plaintiff’s complaints of pain
and “properly found Plaintiff’s allegations to be unreliable.”
(Doc. 13 at 10-11).

Having reviewed the record at length, the

Court finds that Plaintiff’s claim is without merit.
When a claimant attempts to establish disability based on his
pain or other subjective symptoms, he must satisfy two parts of a
three-part “pain standard” that requires
(1) evidence of an underlying medical condition and
either (2) objective medical evidence that confirms the
severity of the alleged pain [or other symptoms] arising
11

SSR 16-3p, which superseded SSR 96-7p, was enacted to provide
“guidance
about
how [the Social Security Administration]
evaluate[s] statements regarding the intensity, persistence, and
limiting effects of symptoms in disability claims under Titles II
and XVI of the Social Security Act . . . . SSR 16-3p, 81 Fed.
Reg. 14166, 14166 (Mar. 9, 2016). SSR 16-3p eliminated the use of
the term “credibility” in the sub-regulatory policy and stressed
that, when evaluating a claimant’s symptoms, the adjudicator will
“not assess an individual’s overall character or truthfulness” but
will instead focus on whether the evidence establishes a medically
determinable impairment that could reasonably be expected to
produce a claimant’s symptoms and, given the adjudicator’s
assessment of the claimant’s symptoms, whether the intensity and
persistence of those symptoms limit the claimant’s ability to work.
Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d 1302, 1308 (11th
Cir. 2018) (per curiam) (citing SSR 16-3p, 81 Fed. Reg. 14166 at
14167, 14171).
32

from that condition or (3) that the objectively
determined medical condition is of such a severity that
it can be reasonably expected to give rise to the alleged
pain [or other symptoms].
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per
curiam).

“If the objective medical evidence does not confirm the

severity of the claimant’s alleged symptoms but the claimant
establishes that he has an impairment that could reasonably be
expected to produce her alleged symptoms, the ALJ must evaluate
the intensity and persistence of the claimant’s alleged symptoms
and their effect on his ability to work.”12

12

Spears v. Berryhill,

SSR 16-3p provides:
Consistent with our regulations, we instruct our
adjudicators to consider all of the evidence in an
individual’s record when they evaluate the intensity and
persistence of symptoms after they find that the
individual has a medically determinable impairment(s)
that could reasonably be expected to produce those
symptoms. We evaluate the intensity and persistence of
an individual’s symptoms so we can determine how
symptoms
limit
ability
to
perform
work-related
activities for an adult . . . .
. . .
In evaluating an individual’s symptoms, our adjudicators
will not assess an individual’s overall character or
truthfulness in the manner typically used during an
adversarial court litigation.
The focus of the
evaluation of an individual’s symptoms should not be to
determine whether he or she is a truthful person.
Rather, our adjudicators will focus on whether the
evidence establishes a medically determinable impairment
that could reasonably be expected to produce the
individual’s symptoms and given the adjudicator’s
evaluation of the individual’s symptoms, whether the
intensity and persistence of the symptoms limit the
33

2017 U.S. Dist. LEXIS 160385, at *16, 2017 WL 4340508, at *6 (N.D.
Ala. Sept. 29, 2017) (citing 20 C.F.R. § 416.929(c)-(d); Wilson v.
Barnhart, 284 F.3d 1219, 1225-26 (11th Cir. 2002) (per curiam)).
“In doing so, the ALJ considers all of the record, including
the

objective

medical

evidence,

the

claimant’s

statements of the claimant and [his] doctors.”

history,

and

Strickland v.

Comm’r of Soc. Sec., 516 F. App’x 829, 831 (11th Cir. 2013) (per
curiam) (citing 20 C.F.R. § 404.1529(c)(1)-(2)); see also SSR 163p, 81 Fed. Reg. 14166 at 14168 (“In considering the intensity,
persistence, and limiting effects of an individual’s symptoms, we
examine the entire case record, including the objective medical
evidence;

an

individual’s

statements

about

the

intensity,

persistence, and limiting effects of symptoms; statements and
other information provided by medical sources and other persons;
and any other relevant evidence in the individual’s case record.”).
The ALJ also considers other factors set forth in the regulations,
including a claimant’s daily activities; the location, duration,
frequency,

and

precipitating

intensity
or

of

pain

aggravating

or

factors;

other
the

symptoms;
type,

any

dosage,

effectiveness, and side effects of medication; any treatment other

individual’s ability to perform work-related activities
. . . .
SSR 16-3p, 81 Fed. Reg. 14166 at 14167, 14171.

34

than medication; other measures used by the claimant to relieve
pain or other symptoms; and any other factors concerning the
claimant’s functional limitations and restrictions due to pain or
other symptoms.

Strickland, 516 F. App’x at 831-32 (citing 20

C.F.R. § 404.1529(c)(3)); see also SSR 16-3p, 81 Fed. Reg. 14166
at 14169-70.

The ALJ then will examine the claimant’s statements

about the intensity, persistence, and limiting effects of symptoms
in relation to all other evidence and consider whether there are
any inconsistencies or conflicts between those statements and the
record.

Strickland, 516 F. App’x at 832 (citing 20 C.F.R. §

404.1529(c)(4)); see also SSR 16-3p, 81 Fed. Reg. 14166 at 14170.
The ALJ is not required to accept a claimant’s allegations of
pain or other symptoms.

Spears, 2017 U.S. Dist. LEXIS 160385, at

*16, 2017 WL 4340508, at *6.

However, if the ALJ decides not to

credit a claimant’s statements about his pain or other subjective
symptoms, “the ALJ must articulate explicit and adequate reasons
for doing so or the record must be obvious” as to the finding.
Strickland, 516 F. App’x at 832 (citing Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995) (per curiam)).

Failure to articulate

the reasons for discrediting testimony related to pain or other
subjective

symptoms

requires,

testimony be accepted as true.

as

a

matter

of

law,

Holt, 921 F.2d at 1223.

that

the

When the

ALJ’s reasons for discrediting a claimant’s statements about pain
or

other

symptoms

are

clearly

35

articulated

and

supported

by

substantial evidence in the record, a reviewing court will not
disturb the ALJ’s findings.

Foote, 67 F.3d at 1562.

After a thorough review of both the ALJ’s decision and the
administrative

record,

the

undersigned

is

satisfied

that,

in

counter to Plaintiff’s argument, the ALJ’s decision is based upon
a careful review of the record in its entirety.

Indeed, while the

ALJ’s decision generally does not chronicle Plaintiff’s individual
dates

of

treatment,

it

nevertheless

fairly

and

accurately

documents Plaintiff’s relevant subjective complaints, diagnoses,
treatment and results thereof, radiology studies, and clinical
findings.

Further, contrary to Plaintiff’s complaint that the ALJ

selectively cited the record to support his findings regarding the
intensity, persistence, and limiting effects of Plaintiff’s pain,
the

decision

cites

multiple

findings

both

favorable

and

unfavorable to Plaintiff’s claim of disability.
In

evaluating

Plaintiff’s

subjective

symptoms,

the

ALJ

followed the process outlined in SSR 16-3p, which required him to
first determine whether Plaintiff had a medically determinable
impairment that could reasonably be expected to produce his alleged
symptoms and, if so, to evaluate the intensity, persistence, and
limiting effects of Plaintiff’s symptoms and determine the extent
to which Plaintiff’s symptoms limit his ability to perform workrelated activities.
68.

See SSR 16-3p, 81 Fed. Reg. 14166 at 14167-

The ALJ described Plaintiff’s statements of his symptoms,

36

including, inter alia, neck pain and cervical radiculopathy and
lower back pain and lumbar radiculopathy that are a seven or eight
on a ten-point scale, even with medication, along with an inability
to lift five pounds, sit for more than ten minutes at a time or
two hours in a day, stand for more than five minutes at a time or
one hour in a day, and walk for more than ten minutes at a time or
one hour in a day.

(Doc. 10-2 at 16).

The ALJ found that

Plaintiff’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms, but that his “statements
concerning the intensity, persistence, and limiting effects of
these symptoms were not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained
in this decision.”
subsequent

(Id. at 16).

paragraphs

to

The ALJ then devoted several

discussing

Plaintiff’s

medical

complaints, clinical examination results, radiology findings, and
treatment.

(Id. at 16-17).

There is no question that Plaintiff’s statements concerning
the intensity, persistence, and limiting effects of his pain and
other symptoms were not fully supported by the objective medical
evidence in the record.13

As the ALJ noted, Plaintiff’s treating

13

“Objective medical evidence is evidence obtained from the
application of medically acceptable clinical and laboratory
diagnostic techniques, such as evidence of reduced joint motion,
muscle spasm, sensory deficit or motor disruption.”
20 C.F.R. §§
404.1529(c)(2), 416.929(c)(2).

37

or examining physicians recorded many normal musculoskeletal and
neurological examination findings.

(See Doc. 10-2 at 16-17; Doc.

10-7 at 10, 13, 17-18, 39-40, 44-45, 49-50, 55, 63, 68, 72-73, 7778, 82-83, 91, 94-95, 100-01, 106, 112, 116-17, 122, 126-27, 133,
141).

The ALJ also cited the results of the 2014 x-rays of

Plaintiff’s cervical spine and lumbar spine and the results of
MRIs performed in December 2014 and May 2015.
17).

(Doc. 10-2 at 16-

Of note, both of Plaintiff’s cervical spine MRIs produced no

acute findings, and although Plaintiff’s lumbar spine MRIs showed
degenerative changes and nerve root encroachment at L5-S1, Dr.
Martino stated that Plaintiff’s May 2015 lumbar MRI showed no real
evidence of nerve root compression.

(Doc. 10-7 at 6, 88-89, 95).

The ALJ properly considered the above objective medical evidence
in

evaluating

the

intensity

and

persistence

of

Plaintiff’s

symptoms and determining the extent to which Plaintiff’s symptoms
limited his ability to perform work-related activities. 14

In

addition, the ALJ explained that he did not find Plaintiff’s

14

See 20 C.F.R. § 404.1529(c)(2) (“Objective medical evidence
. . . is a useful indicator to assist us in making reasonable
conclusions about the intensity and persistence of your symptoms
and the effect those symptoms, such as pain, may have on your
ability to work.
We must always attempt to obtain objective
medical evidence and, when it is obtained, we will consider it in
reaching a conclusion as to whether you are disabled. However, we
will not reject your statements about the intensity and persistence
of your pain or other symptoms or about the effect your symptoms
have on your ability to work solely because the available objective
medical evidence does not substantiate your statements.”).

38

allegations of disabling symptoms to be fully consistent with the
evidence

of

Plaintiff’s

conservative

treatment,

hospitalizations or surgery recommendations.15

with

no

(Doc. 10-2 at 17).

Further, Dr. Saiter, a State agency medical reviewer, offered
findings that conflicted with Plaintiff’s alleged symptoms, which
the ALJ discussed and accorded substantial weight.

(See Doc. 10-

2 at 16-17). Contrary to Plaintiff’s statements about his symptoms
and

related

functional

limitations,

Dr.

Saiter

opined

that

Plaintiff is able to occasionally lift and/or carry twenty pounds,
frequently lift or carry ten pounds, stand and/or walk for about
six hours in an eight-hour workday, sit for about six hours in an
eight-hour workday, and can occasionally stoop, crouch, and crawl.
(Doc. 10-3 at 14-15).16

15

See
20
C.F.R.
§§
404.1529(c)(3)(v),
416.929(c)(3)(v)
(“Factors relevant to your symptoms, such as pain, which we will
consider include: . . . (v) Treatment, other than medication, an
individual receives or has received for relief of pain or other
symptoms.”).
16

See SSR 16-3p, 81 Fed. Reg. 14166 at 14169 (“Medical evidence
from medical sources that have not treated or examined the
individual is also important in the adjudicator's evaluation of an
individual’s statements about pain or other symptoms. For example,
State agency medical and psychological consultants and other
program physicians and psychologists may offer findings about the
existence and severity of an individual’s symptoms.
We will
consider these findings in evaluating the intensity, persistence,
and limiting effects of the individual's symptoms. Adjudicators
at the hearing level or at the Appeals Council level must consider
the findings from these medical sources even though they are not
bound by them.”).

39

Based on the foregoing, substantial evidence supports the
ALJ’s determination that Plaintiff’s statements regarding his pain
and other symptoms were not entirely consistent with the evidence
of record.

Further, the ALJ adequately articulated his reasons

for not fully crediting Plaintiff’s statements about his pain and
other symptoms, which specifically included a discussion of the
objective medical evidence that was inconsistent with Plaintiff’s
testimony

about

the

severity

of

his

alleged

Plaintiff’s conservative course of treatment.
16-17).

symptoms

and

(See Doc. 10-2 at

Thus, the ALJ did not err in evaluating Plaintiff’s

allegations of pain and other subjective symptoms, and Plaintiff’s
claim must fail.
VIII. Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties, it is hereby ORDERED that the decision of the Commissioner
of Social Security denying Plaintiff’s claim for a period of
disability,

disability

insurance

benefits,

and

supplemental

security income be AFFIRMED.
DONE this 29th day of March, 2019.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

40