Fritts v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying plaintiff's benefits is AFFIRMED under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 6/24/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JOSEPH FRITTS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 15-00209-N

MEMORANDUM OPINION AND ORDER
Plaintiff Joseph Fritts has brought this action under 42 U.S.C. § 405(g)
seeking judicial review of a final decision of the Defendant Commissioner of Social
Security (“the Commissioner”) denying his application 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. With the consent of the parties, the Court has designated the
undersigned Magistrate Judge to conduct all proceedings and order the entry of
judgment in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of
Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 18, 19).
Upon consideration of the parties’ briefs (Docs. 13, 14, 15) and the
administrative record (Doc. 12) (hereinafter cited as “(R. [page number(s) in lowerright corner of transcript])”),1 the Court finds that the Commissioner’s decision is
due to be AFFIRMED.

With the Court’s consent, the parties jointly waived the opportunity for oral argument.
(See Docs. 17, 20).

1

I.

Background

On September 14, 2011, Fritts filed an application for a period of disability
and DIB with the Social Security Administration (“SSA”), 2 alleging disability
beginning June 29, 2011. 3 After his application was initially denied, Fritts
requested a hearing, which was held before an Administrative Law Judge (“ALJ”)
for the SSA on July 8, 2013. On August 13, 2013, the ALJ issued an unfavorable
decision on Fritts’s application, finding him “not disabled” under the Social Security
Act and thus not entitled to benefits. (See R. 17 – 27).
Fritts requested review of the ALJ’s decision by the Appeals Council for the
SSA’s Office of Disability Adjudication and Review and submitted new evidence for
the Council’s consideration. The Commissioner’s decision on Fritts’s application
became final when the Appeals Council denied his request for review on March 3,
2015. (R. 1 – 6). On April 16, 2015, Fritts filed this action under § 405(g) for
judicial review of the Commissioner’s final decision. (Doc. 1).

See 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

The Social Security Act’s general disability insurance benefits program provides
income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C.
§ 423(a).

2

“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).” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per
curiam).

3

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.

Standard 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].’ ” Winschel,
631 F.3d at 1178 (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, we must affirm if the decision reached is
supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“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.”). “In determining whether substantial evidence exists, [a
court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, the “substantial evidence” “standard of review applies only to
findings

of

fact.

No

similar

presumption

of

validity

attaches

to

the

[Commissioner]’s conclusions of law, including determination of the proper
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) (West Supp. 1982) (emphasis added). 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.” (footnote and some
citations and 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 … requires that the claimant be disabled. 42 U.S.C.
§[] 423(a)(1)(E) … 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)…
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
“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

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

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 no new evidence is presented to the Appeals Council and it denies

review, then the administrative law judge’s decision is necessarily reviewed as the
final decision of the Commissioner, 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.
III.

Claims on Judicial Review

1. “The ALJ’s residual functional capacity assessment is not supported by
substantial evidence of record.”
2. “The Appeals Council erred in failing to remand the case for proper
consideration of evidence submitted to it, consisting of a thorough
examination by a burn surgeon and a vocational expert. The Appeals Council
provided no evidence that it had properly considered the evidence.”
3. “The ALJ conducted a flawed credibility determination based on insignificant
or perceived conflicts in testimony.”
(Doc. 14 at 1).6
IV.

Analysis

At Step One, the ALJ determined that Fritts had “not engaged in substantial
gainful activity since June 29, 2011, the alleged onset date…” (R. 19). At Step Two,
the ALJ determined that Fritts had the following severe impairments: status post
30% total body surface area burns to the left arm, lower back, buttocks, bilateral

Generally, claims of error not raised in the district court are deemed waived. Cf. Stewart
v. Dep’t of Health & Human Servs., 26 F.3d 115, 115 (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.”); Hunter v. Comm’r of Soc. Sec., No. 15-11567, 2016 WL 3159217, at *4
(11th Cir. June 7, 2016) (per curiam) (unpublished) (applying Stewart holding in Social
Security appeal).

6

thighs, bilateral legs, and bilateral feet. (R. 19). At Step Three, the ALJ found that
Fritts did not have an impairment or combination of impairments that meets or
equals the severity of one of the specified impairments in the relevant Listing of
Impairments. (R. 20).
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 Fritts had the RFC “to perform less than the full
range of light work as defined in 20 C.F.R. § 404.1567(b),” with the following
restrictions:

He can lift and/or carry twenty pounds occasionally and ten pounds
frequently. He can stand, walk, and sit for a total of about six hours
each in an eight-hour workday. He can occasionally bend, balance,
stoop, kneel, crouch, and crawl. He can never climb ladders, ropes, or
scaffolds. He must avoid concentrated exposure to extreme cold, heat,
wetness, humidity, vibrations, noise, and pulmonary irritants such as
fumes, odors, dust, and gas. He must avoid all exposure to unprotected
heights, dangerous machinery, uneven surfaces, large bodies of water,
and commercial driving.
He should be expected to take one
unscheduled break during an eight-hour workday. He should be
expected to have one unplanned absence per month.
He can
understand, remember, and carry out no more than simple, short
instructions and make simple work-related decisions with few work
place changes.
(R. 20).
Based on this RFC, the ALJ determined that Fritts was unable to perform
any past relevant work. (R. 25). At Step Five, the ALJ, after taking testimony from
a vocational expert, found that there exist significant numbers of jobs in the
national economy that Fritts can perform given his RFC, age, education, and work
experience. (R. 26). Thus, the ALJ found that Fritts was not disabled under the
Social Security Act. (R. 26).
A.

Claim 3 (Credibility Assessment)

In Holt v. Sullivan, 921 F.2d 1221 (11th Cir. 1991), [the Eleventh
Circuit] articulated the “pain standard,” which applies when a
disability claimant attempts to establish a disability through his own
testimony of pain or other subjective symptoms. 921 F.2d at 1223. The
pain standard requires
(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising 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.

921 F.2d at 1223 (internal citation omitted). If a claimant testifies as to
his subjective complaints of disabling pain and other symptoms … , the
ALJ must clearly “articulate explicit and adequate reasons” for
discrediting the claimant's allegations of completely disabling
symptoms. Foote[ v. Chater], 67 F.3d [1553,] 1561–62[ (11th Cir. 1995)
(per curiam)]. “Although this circuit does not require an explicit
finding as to credibility, ... the implication must be obvious to the
reviewing court.” 67 F.3d at 1562 (quoting Tieniber v. Heckler, 720
F.2d 1251, 1255 (11th Cir. 1983)). The credibility determination does
not need to cite “ ‘particular phrases or formulations' ” but it cannot
merely be a broad rejection which is “ ‘not enough to enable [the
district court or this Court] to conclude that [the ALJ] considered her
medical condition as a whole.’ ” Foote, 67 F.3d at 1561 (quoting
Jamison v. Bowen, 814 F.2d 585, 588–90 (11th Cir. 1987)).
Dyer v. Barnhart, 395 F.3d 1206, 1210-11 (11th Cir. 2005) (per curiam).
“[C]redibility determinations are the province of the ALJ, Moore v. Barnhart, 405
F.3d 1208, 1212 (11th Cir. 2005), and [a court] will not disturb a clearly articulated
credibility finding supported by substantial evidence, Foote v. Chater, 67 F.3d 1553,
1562 (11th Cir. 1995).” Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782
(11th Cir. 2014).
The ALJ gave “little weight” to Fritts’s subjective testimony “for a number of
reasons[,]” explaining as follows:
First, the Claimant’s credibility is undermined by the testimony
regarding his pain. He testified his pain is a level 7/10 without
medication and that medication only reduces his pain to a level 6/10.
However, this stands in sharp contrast to the overall objective
evidence, which shows he reported his pain was, on average, a level
4/10 in July 2011. (Ex. 5F.) He also routinely reported his pain was
well-controlled with pain medication. (Ex. 3F.) In June 2012, he told
his physical therapist that he had no complaints of pain. (Ex. 7F.) The
medical evidence of record does not show that the Claimant has
reported an increase of pain to a level 7/10. It also does not provide
any objective basis for concluding that the Claimant’s pain would
increase, particularly after participation in rehabilitative therapy. The
lack of evidence to support the Claimant’s contention suggests he

exaggerated his pain for secondary gain.
Second, the Claimant’s credibility is diminished by his own statement
to his therapist in January 2012 that he was looking for employment.
(Ex. 5F.) This suggests the Claimant subjectively believes he is capable
of employment. Additionally, it is consistent with his therapist’s
opinion that he is capable of working.
Third and finally, the Claimant’s credibility is undermined by his
inconsistent statements regarding his education. When initially
applying for benefits, the Claimant reported he graduated high school.
(Ex. 3E.) However, he testified that he did not complete the eleventh
grade and never obtained his GED. His education records indicate
that he did not complete high school. (Ex. 1E.) These inconsistencies
raise further questions regarding the veracity of the Claimant’s
allegations.
(R. 24 – 25).
Fritts does not claim that the ALJ failed to make a “clearly articulated
credibility finding,” and the above-quoted passage would easily refute such an
argument.

Thus, the Court’s only remaining duty for Claim 3 is to determine

whether that finding is supported by substantial evidence. In this regard, Fritts
largely quarrels with the ALJ’s view of the evidence and asks the Court to adopt his
own, more favorable interpretation of that evidence, dismissing the inconsistencies
cited by the ALJ as “insignificant” and “perceived.”

However, the “substantial

evidence” standard of review forbids this Court from deciding the facts anew,
reweighing the evidence, or substituting its judgment for that of the Commissioner.
Winschel, 631 F.3d at 1178.
As to the ALJ’s finding that Fritts had inconsistently reported his level of
pain, Fritts complains “there is no … indication in Exhibit 3F” that he “routinely
reported his pain was well-controlled with pain medication.”

(Doc. 14 at 9).

However, as Fritts himself tacitly points out, the ALJ’s citation to Exhibit “3F”
appears to have been a scrivener’s error, since medical records from multiple dates
in Exhibit 2F report that Fritts’s “[p]ain is well controlled with” Lortab and
oxycodone and/or that he “has no serious complaints.”

(R. 277, 278, 280, 291).

Fritts does not challenge the accuracy of the ALJ’s discussion of other evidence on
this point, which further supports the ALJ’s determination that Fritts’s subjective
reports of the intensity of his pain were inconsistent with the objective record
evidence.7
As to the ALJ’s finding that Fritts’s “statement to his therapist in January
2012 that he was looking for employment … suggests [Fritts] subjectively believes
he is capable of employment,” Fritts quibbles that he actually told the therapist “he
is looking at other jobs to do” (R. 375), claiming that “[t]his is not exactly looking for
work[, and f]urthermore, looking for work is not the same as performing and
maintaining work.”

(Doc. 14 at 9).

However, the ALJ’s paraphrasing of this

statement is not an unreasonable interpretation; moreover, the ALJ cited the
statement only as evidence of Fritts’s subjective belief in his ability to do work, thus
further eroding his credibility in claiming that pain rendered him unable to work.

Fritts also asserts that Lortab and oxycodone “are narcotic pain medications used to treat
moderate to severe pain and … are addictive[,]” and “[t]he fact that these risky medications
are required to control his level of pain is proof of the severity of the pain.” (Doc. 14 at 9).
Fritts cites no record evidence or authority to substantiate these medical claims.
Regardless, the ALJ was not required to accept as true Fritts’s testimony of disabling pain
merely because he was taking strong pain medication. When evaluating a claimant's
subjective symptoms, the ALJ considers, inter alia, the “effectiveness” as well as the “type”
of pain medication a claimant is taking. 20 C.F.R. § 404.1529(c)(3)(iv); SSR 96-7P, 1996 WL
374186, at *3 (July 2, 1996). The ALJ found that Fritts’s “pain was well-controlled with
pain medication,” and substantial evidence supports that finding.

7

The ALJ did not purport to find that Fritts could actually work based on this
statement.
Finally, Fritts asserts that the inconsistencies cited by the ALJ regarding
Fritts’s education history are “irrelevant” because “school records show Mr. Fritts
repeated seventh and eleventh grades, so he was in school at least twelve years.”
(Doc. 14 at 10 (citing R. 158 – 160)). While likely not a sufficient reason, standing
alone, to discredit Fritts, the Court disagrees that these discrepancies were
completely “irrelevant,” as they could reasonably be interpreted as calling into
question Fritts’s ability to accurately report information to the SSA. Regardless,
even setting aside the discrepancies in Fritts’s educational history, the ALJ’s other
two reasons for giving little weight to Fritts’s subjective testimony constitute a
clearly articulated credibility finding supported by substantial evidence.

8

Fritts also complains that “[t]he ALJ never indicated whether Mr. Fritts had an
underlying medical condition that could reasonably be expected to produce his pain.” (Doc.
14 at 10). While the ALJ did not explicitly make a statement saying “Condition X could
reasonably be expected to produce pain,” the implication is obvious that he determined such
a medical condition did exist but that Fritts’s testimony as to the severity of his pain was
not supported by the record or otherwise credible. At most, any failure to explicitly
articulate an underlying medical condition was harmless error, as Fritts did not satisfy the
second half of the “pain standard.”
Fritts also argues that consideration of other factors identified in 20 C.F.R. §
404.1529(c)(3) (and restated in SSR 96-7p, 1996 WL 374186, at *3) renders his testimony
more credible. This argument, however, lacks any citation to specific portions of the
administrative record and simply invites the Court to reweigh those factors. The ALJ’s
decision sufficiently demonstrates that he considered Fritts’s medical condition as a whole
in making his credibility determination. See Mitchell, 771 F.3d at 782 (“[C]ontrary to
Mitchell’s contention that the ALJ ignored evidence favorable to Mitchell, ‘there is no rigid
requirement that the ALJ specifically refer to every piece of evidence in his decision, so long
as the ALJ’s decision ... is not a broad rejection which is not enough to enable [a reviewing
court] to conclude that the ALJ considered [the claimant's] medical condition as a whole.’
Dyer, 395 F.3d at 1211 (quotation and brackets omitted). The ALJ’s decision in this case
was not a broad rejection and was sufficient to enable the district court and this Court to
conclude the ALJ considered Mitchell's medical condition as a whole. See id.”).

8

Accordingly, the Court OVERRULES Fritts’s assertions of reversible error in
Claim 3.
B.

Claim 1 (Substantial Evidence Supporting the RFC)

Fritts asserts that, because the “evidence of record before the ALJ contained
only raw medical evidence,” without any “functional abilities” assessment by a
treating physician, the ALJ had a duty to either “order a consultative examination
or seek testimony by a medical expert.” (Doc. 14 at 4). Relatedly, he argues that
substantial evidence does not support the ALJ’s RFC assessment because it is based
on his own uninformed view of the “raw medical evidence” and “is not supported by
the opinion of any treating physician, consultative examiner, reviewing DDS
physician or medical expert.” (Id. at 5).
“It is well-established that the ALJ has a basic duty to develop a full and fair
record.[ 9 ]

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.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam)
(citations omitted). An ALJ “is not required to order a consultative examination as
long as the record contains sufficient evidence for the administrative law judge to
make an informed decision.”

Ingram, 496 F.3d at 1269.

See also 20 C.F.R. §

404.1519a(b) (“We may purchase a consultative examination to try to resolve an
inconsistency in the evidence, or when the evidence as a whole is insufficient to

Fritts devotes a paragraph of his brief to explaining that this duty is heightened for
unrepresented claimants. (See Doc. 14 at 5). However, the record reflects that Fritts was
represented by an attorney (who is also his present counsel) at his hearing before the ALJ
and at the time of the ALJ’s decision.

9

allow us to make a determination or decision on your claim.”).
In his decision, the ALJ considered in detail the treatment notes from
“Steven Thomas, M.D., [Fritts’s] treating physician.” (See R. 21 – 23). Fritts does
not dispute the ALJ’s classification of Dr. Thomas as a treating physician, and he
makes no effort explain why he could not himself obtain an opinion from Dr.
Thomas (indeed, Fritts’s brief omits any specific mention of Dr. Thomas). He also
does not identify any specific deficiencies in the record evidence that prevented the
ALJ from reaching an informed decision, apart from his conclusory assertion that
the ALJ was required to obtain a medical opinion in order to formulate the RFC.
This assertion, however, is meritless.

“[T]he task of determining a claimant’s

residual functional capacity and ability to work rests with the administrative law
judge, not a doctor.” Moore v. Soc. Sec. Admin., Com'r, No. 15-15213, 2016 WL
2909170, at *3 (11th Cir. May 19, 2016) (per curiam) (unpublished) (citing 20 C.F.R.
§ 404.1546(c) (“If your case is at the administrative law judge hearing level ..., the
administrative law judge ... is responsible for assessing your residual functional
capacity.”)). The ALJ carries out this task by assessing “all of the relevant medical
and other evidence[,]” 20 C.F.R. § 404.1545(a)(3),10 which “may contain medical
opinions.” 20 C.F.R. § 404.1527(a)(2) (emphasis added). See also Green v. Soc. Sec.
Admin., 223 F. App'x 915, 923 (11th Cir. 2007) (per curiam) (unpublished)
(“Although a claimant may provide a statement containing a physician’s opinion of

20 C.F.R. § 4014.1545 was amended in 1991 to delete language defining an RFC as a
“medical assessment.” See Langley v. Astrue, 777 F. Supp. 2d 1250, 1252-53 (N.D. Ala.
2011).

10

her remaining capabilities, the ALJ will evaluate such a statement in light of the
other evidence presented and the ultimate determination of disability is reserved
for the ALJ. 20 C.F.R §§ 404.1513, 404.1527, 404.1545.” (emphasis added)).11
Here, the ALJ’s decision sufficiently indicates that he reached his RFC
determination after considering the ample objective medical evidence of record, as
well as opinions from Fritts’s physical therapist, a consultative examining
psychologist, and a non-examining State agency psychological consultant. The ALJ
acted within his authority in doing so. See Kent v. Acting Comm’r of the Social
Security Administration, No. 15-15059, 2016 WL 3159582, at *3 (11th Cir. June 7,
2016) (per curiam) (unpublished) (“There is no merit to Kent's claim that the ALJ
conducted his own ‘psychiatric analysis’ using Dr. Marchese’s treatment notes. The
ALJ properly considered all of the relevant medical and other evidence, including
Dr. Marchese’s treatment notes, and assessed Kent’s RFC, a determination reserved
to the ALJ. See 20 C.F.R. §§ 404.1527(d)(2), 404.1545(a)(3), 404.1546(c).”); Castle v.
Colvin, 557 F. App'x 849, 853-54 (11th Cir. 2014) (per curiam) (unpublished)
(“Contrary to the district court’s reasoning, the ALJ did not ‘play doctor’ in
Fritts argues that an “ALJ is simply not qualified to formulate a residual functional
capacity on his own” where, as here, the ALJ did not find the claimant “could perform a full
range of light work” but instead “added specific limitations to the RFC.” (Doc. 14 at 5 – 6).
“This detailed analysis of medical records[,]” Fritts submits, “is not within [the ALJ’s]
purview[;] such specificity can only be reached by a physician.” (Id. at 6). Fritts cites no
authority to support this argument, and the Court is not aware of any provision in the
Social Security regulations imposing a heightened burden of evidentiary support for RFCs
providing for less than a full range of a certain category of work.
Fritts’s point is not proven by the fact that a physician’s “post-hearing examination”
contradicted parts of the ALJ’s RFC determination, as this argument erroneously presumes
that the ALJ would have been required to accept this evidence as true had it been
presented to him. See, e.g., Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983)
(The Commissioner “may reject the opinion of any physician when the evidence supports a
contrary conclusion.”).

11

assessing Mr. Castle’s RFC, but instead properly carried out his regulatory role as
an adjudicator responsible for assessing Mr. Castle’s RFC. See 20 C.F.R. §
404.1545(a)(3) (‘We will assess your residual functional capacity based on all of the
relevant medical and other evidence.’). Indeed, the pertinent regulations state that
the ALJ has the responsibility for determining a claimant's RFC. 20 C.F.R. §
404.1546(c).”); Ramos v. Barnhart, 119 F. App'x 295, 296 (1st Cir. 2005) (per
curiam) (unpublished) (“To the extent appellant suggests that the ALJ should have
obtained the testimony of a medical expert to resolve any apparent conflicts
between the treating physicians' assessments and the opinions of the state agency
physicians, her argument is unavailing because RFC is not a medical assessment,
but is instead an administrative finding reserved to the Commissioner. 20 C.F.R. §
404.1527(e).”); Simpson v. Comm'r of Soc. Sec., 344 F. App'x 181, 194 (6th Cir. 2009)
(unpublished) (“ ‘The ALJ is not bound to accept the opinion or theory of any
medical expert, but may weigh the evidence and draw his own inferences.’ McCain
v. Dir., OWCP, 58 Fed. Appx. 184, 193 (6th Cir. 2003) (citing Underwood v. Elkay
Mining, 105 F.3d 946, 951 (4th Cir. 1997)).”).12 Thus, the Court OVERRULES
Fritts asserts that an “ALJ cannot act as both judge and physician.” (Doc. 14 at 5).
The (non-binding) authority he cites in support of this statement, however, stands for the
proposition that an ALJ “abuses his discretion when he substitutes his own uninformed
medical evaluations for those of a claimant's treating physician [and] arbitrarily
substitute[s] his own hunch or intuition for the diagnosis of a medical professional.”
Marbury v. Sullivan, 957 F.2d 837, 840-4 (11th Cir. 1992) (Johnson, J., concurring). See
also Jiles v. Comm'r of Soc. Sec., Civil Action No. 05-G-0861-S, 2006 WL 4402937, at *4
(N.D. Ala. Sept. 11, 2006) (“It is an ALJ's ‘uninformed medical evaluations’ that are
prohibited.” (citing Marbury, 957 F.2d at 840-41 (Johnson, J., concurring)). In other words,
these cases simply amplify the unremarkable observation that, when presented with the
opinions of medical professionals, an ALJ may not simply disregard them without a valid
explanation. See Winschel, 631 F.3d at 1179 (“[T]he ALJ must state with particularity the
weight given to different medical opinions and the reasons therefor” to permit “a reviewing

12

Fritts’s assertions of reversible error in Claim 1.
C.

Claim 2 (New Evidence Considered by Appeals Council)

In denying Fritts’s request for review, the Appeals Counsel considered
“additional evidence from Dr. Novack, Dr. Dimick, and Mr. Gurley” submitted by
Fritts but determined “that this information does not provide a basis for changing
the Administrative Law Judge’s decision.” (R. 1 – 2). Fritts argues that remand is
appropriate because the “Appeals Council did not demonstrate that it adequately
evaluated the new evidence, as required.”

(Doc. 14 at 7).

This argument is

foreclosed by Mitchell v. Commissioner, Social Security Administration, 771 F.3d
780, 782-85 (11th Cir. 2014). Recently, in Parks ex rel. D.P. v. Commissioner, Social
Security Administration, 783 F.3d 847 (11th Cir. 2015), the Eleventh Circuit,
applying Mitchell, rejected an identical argument that the Appeals Council “erred
because it failed to make specific findings of fact about the evidence that it added to
the record when it denied [a] request for review[,]” explaining as follows:
“The Appeals Council may deny or dismiss [a] request for review....” 20
C.F.R. § 416.1467. But the Appeals Council is not required to make
specific findings of fact when it denies review. It need only “consider
the additional evidence” that is new, material, and chronologically
relevant. Id. § 416.1470(b). The Appeals Council stated that it
court to determine whether the ultimate decision on the merits of the claim is rational and
supported by substantial evidence.” (quotation omitted)). These cases in no way stand for
the proposition that an ALJ is not competent to consider medical evidence and render an
RFC determination without a medical opinion.
Fritts also asserts that “the ALJ failed to link the evidence to the RFC
determination by describing how the evidence supports each conclusion.” (Doc. 14 at 7).
His argument on this point, however, consists solely of quotes from various district court
cases followed by a conclusory assertion of error. Other than a doctor’s report produced one
day after the ALJ’s decision, Fritts fails to cite anything in the administrative record (e.g.,
inconsistencies in the ALJ’s reasoning; probative record evidence available to the ALJ that
was not considered) that calls the ALJ’s RFC determination into question.

considered the new evidence that Parks submitted, and the Appeals
Council added the evidence to the record. The Appeals Council was
not required to do more.
Our Court recently decided Mitchell v. Commissioner, Social Security
Administration, which controls this question. 771 F.3d 780. In
Mitchell, we held that there is no requirement that “the Appeals
Council ... provide a detailed discussion of a claimant's new evidence
when denying a request for review.” Id. at 783. We explained that,
where “the Appeals Council expressly stated in its letter to [the
claimant] that it had considered his additional evidence, ... we ha[d] no
basis ... to second-guess that assertion.” Id. Parks’s situation is
indistinguishable from that of the claimant in Mitchell. Parks
submitted additional evidence to the Appeals Council, and the Appeals
Council added the evidence to the record, stated that it considered the
evidence, and denied review. As in Mitchell, nothing suggests that the
Appeals Council failed to consider Parks's new evidence.
Parks’s reliance on Epps v. Harris, 624 F.2d 1267 (5th Cir.1980), and
Bowen v. Heckler, 748 F.2d 629 (11th Cir. 1984), is misplaced. In Epps,
our predecessor court found that the Appeals Council had not
“adequately evaluate[d]” new evidence. 624 F.2d at 1273. But as we
explained in Mitchell, the decision in Epps “arose in a different
procedural context,” where the Appeals Council affirmed the decision
of the administrative law judge. Mitchell, 771 F.3d at 783. Epps has
little bearing on a denial of a request for review. Bowen is inapposite
too. In Bowen, our Court “concluded the record established that the
Appeals Council did not adequately evaluate additional evidence
submitted to it because it viewed each of the claimant's impairments in
isolation and did not consider their combined effect.” Mitchell, 771 F.3d
at 784. “Bowen requires the Appeals Council to apply the correct legal
standards in performing its duties,” but it does not require that the
Appeals Council include with every denial of review a “detailed
rationale for why each piece of new evidence submitted to it does not
change the [administrative law judge]’s decision.” Mitchell, 771 F.3d at
784.
783 F.3d 847, 852-53 (emphasis added).
“If [Fritts] had asked [the Court] to reverse the denial of review on the
merits, [the Court] could have examined the new evidence that she presented to the
Appeals Council and reviewed its decision.” Id. at 853. However, Fritts “challenges

only the failure of the Appeals Council to make detailed findings of fact. Because
the Appeals Council is not required to make detailed findings, [the Court] need
examine its decision no further.” Id. Accordingly, the Court OVERRULES Fritts’s
assertions of reversible error in Claim 2 and finds that the Commissioner’s final
decision is due to be AFFIRMED.
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s March 3, 2015 final decision denying Fritts’s application for a
period of disability and DIB benefits is AFFIRMED under sentence four of 42
U.S.C. § 405(g).
Final judgment shall issue separately in accordance with this Order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 24th day of June 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE