McCloud v. Colvin

Filing 29

MEMORANDUM OPINION AND ORDER entered that the Commissioner's final decision issued April 28, 2016, denying McCloud's applications for PoD and DIB is AFFIRMED under 42 U.S.C. § 405(g) and 1383(c)(3). Signed by Magistrate Judge William E. Cassady on 09/12/2017. (nah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
MARY B. McCLOUD,

:

Plaintiff,

:

vs.

:

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1

:
:
:

Defendant.

CA 16-00183-C

:

MEMORANDUM OPINION AND ORDER
Social Security Claimant/Plaintiff Mary B. McCloud brought this
action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a
final decision of the Defendant Commissioner of Social Security (the
“Commissioner”) denying his applications for a period of disability (“PoD”)
and disability insurance benefits (“DIB”) under Title II of the Social Security
Act, 42 U.S.C. § 401, et seq. The parties have consented to the exercise of
jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all
proceedings in this Court. (Doc. 26 (“In accordance with the provisions of 28
U.S.C. § 636(c) and Fed. R. Civ. P. 73, the parties in this case consent to have
a United States Magistrate Judge conduct any and all proceedings in this

Nancy A Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d), Fed. R. Civ. P., Berryhill is substituted for
Carolyn W. Covin as the proper defendant in this case.

1

case, including the trial, order the entry of a final judgment, and conduct all
post-judgment proceedings.”)).
Upon consideration of the briefs of the parties, (Docs. 18 & 23), the
administrative record, (Docs. 14-15), (hereinafter cited as “(R. [page
number(s) in lower-right corner of transcript])”), and the arguments
presented during the hearing held on February 22, 2017, it is determined
that the Commissioner’s decision is due to be AFFIRMED.2
I.

Background

McCloud was born on February 21, 1961, (R. 238 [SSA Ex. 1E]).
McCloud completed two years of college. (R. 248 [SSA Ex. 2E]). McCloud
was employed as a secretary at a business called Country Store, (R. 55), as a
secretary for the Adult Education Division at Wallace Community College,
(R. 56), and as an office administrator for the State of Alabama, Department
of Post-Secondary Education, for approximately thirteen (13) years, from
1998 to 2011, (R. 57; R. 243 [SSA Ex. 3E]).
McCloud filed applications for PoD and DIB with the Social Security
Administration (the “SSA”)3, on February 26, 2013. (R. 27). In McCloud’s

Any appeal taken from this memorandum opinion and order and judgment shall be
made to the Eleventh Circuit Court of Appeals. (See Doc. 26 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States
Court of Appeals for this judicial circuit in the same manner as an appeal from any
other judgment of this district court.”)).

2

“The Social Security Act’s general disability insurance benefits program (‘DIB’)
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.” Sanders v. Astrue, No 11-049-N, 2012 WL 4497733, at *3 (S.D.

3

2

application, she alleged disability beginning on January 1, 2011. 4 (R. 27).
After McCloud’s claim was denied, she requested a hearing, which was held
via videoconference before an Administrative Law Judge (“ALJ”) for the SSA
on April 15, 2015. (R. 27). On July 29, 2015, the ALJ issued an unfavorable
decision on McCloud’s claims, finding her “not disabled” under sections 216(i)
and 223(d) of the Social Security Act. (R. 24-47).
McCloud requested review of the ALJ’s decision by the Appeals Council
for the SSA’s Office of Disability Adjudication and Review. (R. 15-16). The
Appeals Council denied McCloud’s request for review on April 28, 2016,
which made the ALJ’s the final decision of the Commissioner. (R. 1-6). On
May 2, 2016, McCloud filed this action pursuant to § 405(g)5 and § 1383(c)(3)6
to review the final decision of the Commissioner. (Doc. 1, at 1).
II.

Standard of Review

“In Social Security appeals, [the Court] must determine whether the

Ala. Sept. 28, 2012).
“For DIB claims, a claimant is eligible for benefits where she demonstrates
disability on or before the last date for which she [was] insured. 42 U.S.C. §
423(a)(1)(A) (2005).” McCloud v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)
(per curiam).

4

“Any individual, after any final decision of the Commissioner . . . made after a
hearing to which he was a party, irrespective of the amount in controversy, may
obtain a review of such decision by a civil action commenced within sixty days after
the mailing to him of notice of such decision or within such further time as the
Commissioner . . . may allow.” 42 U.S.C. § 405(g).

5

“The final determination of the Commissioner of Social Security after a hearing
under paragraph (1) shall be subject to judicial review as provided in section 405(g)
of this title to the same extent as the Commissioner’s final determinations under
section 405 of this title.” 42 U.S.C. 1383(c)(3).

6

3

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) (citations and internal quotations omitted). The Court “may
not decide the facts anew, reweigh the evidence, or substitute [its] judgment
for that of the [Commissioner].” Id. (citations omitted). “Even if the evidence
preponderates against the Commissioner’s findings, [the Court] must affirm
if the decision reached is supported by substantial evidence.”

Martin v.

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing Sewell v. Bowen, 792
F.2d 1065, 1067 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986); and Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983)). “Yet, within this narrowly circumscribed role, [the Court does] not
‘act as automatons.’”

Bloodsworth, 703 F.2d 1233, 1239 (11th Cir. 1983)

(citing Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981), cert. denied, 455
U.S. 912, 102 S. Ct. 1263, 71 L. Ed. 2d 452 (1982)).

The Court “must

scrutinize the record as a whole, [Ware, 651 F.2d at 411]; Lewis v.
Weinberger, 515 F.2d 584, 586-87 (5th Cir. 1975), to determine if the decision
reached is reasonable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir.
1979), and supported by substantial evidence, Scharlow v. Schweiker, 655
F.2d 645, 648 (5th Cir. 1981).” Bloodsworth, 703 F.2d at 1239.
“In contrast to the deferential review accorded to the [Commissioner’s]

4

findings of fact, the [Commissioner’s] conclusions of law, including applicable
review standards are not presumed valid.” Martin, 894 F.2d at 1529 (citing
MacGregor, 786 F.2d at 1053; Smith v. Heckler, 707 F.2d 1284, 1285 (11th
Cir. 1983), Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982); Smith
v. Schweiker, 646 F.2d 1075, 1076 (5th Cir. Unit A June 1981).

“The

[Commissioner’s] failure to apply the correct legal standard or to provide the
reviewing court with sufficient basis for a determination that proper legal
principles have been followed mandates reversal.” Martin, 894 F.2d at 1529
(citing Gibson v. Heckler, 779 F.2d 619, 622 (11th Cir. 1986); Bowel v.
Heckler, 748 F.2d 629, 635-36 (11th Cir. 1984); Smith, 707 F.2d at 1285;
Wiggins, 679 F.2d at 1389; Ambers v. Heckler, 736 F.2d 1467, 1470 (11th Cir.
1984)).
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 v. Barnhart, 357 F.3d 1232, at 1237-39 (11th Cir.
2004)).

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III.
1.

Claims on Judicial Review

“Ms. McCloud has a ‘severe’ psychological impairment, the [ALJ]

erred in his evaluation[.]” (Doc. 18, at 1).
2.

“The [ALJ] erred in his evaluation of psychological medical

source opinions[.]” (Doc. 18, at 1).
3.

“The [ALJ] did not conduct a full and fair hearing[.]” (Doc. 18,

4.

“The [ALJ]’s [RFC] finding is not rooted in the record[.]” (Doc.

at 1).

18, at 1).
IV.

Analysis

“At the first step, the ALJ must consider the claimant’s current
working situation. If the claimant is ‘doing substantial gainful activity, [the
ALJ] will find that [the claimant is] not disabled.’” Phillips, 357 F.3d at 1237
(alterations in original) (quoting 20 C.F.R. § 404.1520(a)(4)(i) & (b)).

“If

however, the claimant is not currently ‘doing gainful activity’ then the ALJ
moves on to the second step.” Phillips, 357 F.3d at 1237. At the first step,
the ALJ determined McCloud had “not engaged in substantial gainful activity
since January 1, 2011, the alleged onset date.” (R. 29).
At the second step, the ALJ is to “consider the medical
severity of [the claimant’s] impairment(s).”
20 C.F.R. §
404.1520(a)(4)(ii).
When considering the severity of the
claimant’s medical impairments, the ALJ must determine
whether the impairments, alone or in combination, “significantly
limit” the claimant’s “physical or mental ability to do basic work
skills.” 20 C.F.R. § 404.1520(c). If the ALJ concludes that none
of the claimant’s impairments are medically severe, the ALJ is

6

to conclude that the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(ii) & (c). If, however, the ALJ concludes that the
claimant’s impairments are medically severe, then the ALJ
moves on to the third step.
Phillips, 357 F.3d at 1237 (alterations in original). At Step Two, the ALJ
determined McCloud had the following non-severe impairments, which are
severe in combination:
50% (mild) stenosis of the carotid arteries; history of cerebral
congenital abnormality of undeveloped left-sided cerebrum;
mild-to-moderate cardiomegaly; history of placement of drugeluting stent of mid left anterior descending artery; status post
sling implantation secondary to history of stress urinary
incontinence secondary to urethral hypermobility; questionable
reports of chest pain; history of obesity; hypertension, benign;
tobacco abuse; history of anemia; questionable lumbago;
questionable fibromyalgia; mild mixed sensory motor peripheral
neuropathy of bilateral lower extremities; and mild carpal
tunnel syndrome, left, and status post release, right.
(R. 29).
At the third step, the ALJ again considers the “medical
severity of [the claimant’s] impairment(s)” in order to determine
whether the claimant’s impairment(s) “meets or equals” one of
the listed disabilities. 20 C.F.R. § 404.1520(a)(4)(iii). Although
the list is too voluminous to recite here, the idea is that the
listings “streamline[ ] the decision process by identifying those
claimants whose medical impairments are so severe that it is
likely they would be found disabled regardless of their
vocational background.” Bowen v. Yuckert, 482 U.S. 137, 153,
107 S. Ct. 2287, 2297, 96 L. Ed. 2d 119 (1987). If the ALJ
concludes that the claimant’s impairments meet or equal one of
the listed disabilities and meet the duration requirement, the
ALJ will conclude that the claimant is disabled. 20 C.F.R. §
404.1520(a)(4)(iii) & (d). If, however, the ALJ concludes that the
claimant’s impairments do not meet or equal the listed
impairments, then the ALJ will move on to step four.
Phillips, 257 F.3d at 1238 (alterations in original). At Step Three, the ALJ

7

found that McCloud “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments” in 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. (R. 34).
At the fourth step, the ALJ must assess: (1) the claimant's
[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 RFC]
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 (alterations in original) (footnote omitted). At
the fourth step, the ALJ assessed that McCloud had the RFC:
[T]o perform medium work as defined in 20 CFR 404.1567(c)
with the following exceptions and considerations: the claimant
can stand and/or walk at least two hours without interruption
and a total of at least six hours over the course of an eight-hour
workday. The claimant can sit at least two hours without
interruption and a total of at least six hours over the course of
an eight-hour workday. The claimant cannot climb ropes, poles
or scaffolds. The claimant can occasionally climb ladders, ramps

8

and stairs. The claimant can frequently balance, stoop, kneel
and crouch. The claimant can occasionally crawl. The claimant
can frequently work in humidity, wetness and extreme
temperatures.
The claimant cannot work at unprotected
heights. The claimant cannot work with operating hazardous
machinery. The claimant can frequently work while exposed to
vibration. The claimant can frequently operate motorized
vehicles.
(R. 34).

The ALJ determined McCloud is “capable of performing past

relevant work as an administrative clerk (light, semiskilled) Dictionary of
Occupational

Titles

#219.361-010;

and

secretary

(sedentary,

skilled)

Dictionary of Occupational Titles #201.362-030. This work does not require
the performance of work-related activities precluded by the claimant’s
[RFC].” (R. 42). The ALJ concluded McCloud was not “under a disability as
defined in the [SSA], from January 1, 2011, through the date of this decision.”
(R. 42).
A.

Claim 1

At step two of the Social Security Regulations’ five-step, sequential
evaluation process, which is used to determine whether a claimant is
disabled:
[T]he ALJ is to “consider the medical severity of [the claimant’s]
impairment(s).”
20 C.F.R. § 404.1520(a)(4)(ii).
When
considering the severity of the claimant’s medical impairments,
the ALJ must determine whether the impairments, alone or in
combination, “significantly limit” the claimant’s “physical or
mental ability to do basic work skills.” 20 C.F.R. § 404.1520(c).
If the ALJ concludes that none of the claimant’s impairments
are medically severe, the ALJ is to conclude that the claimant is
not disabled. 20 C.F.R. § 404.1520(a)(4)(ii) & (c). If, however,
the ALJ concludes that the claimant’s impairments are
medically severe, then the ALJ moves on to the third step.

9

Phillips, 357 F.3d at 1237 (alterations in original).
Step two is a threshold inquiry. It allows only claims based on
the most trivial impairments to be rejected. The claimant’s
burden at step two is mild. An impairment is not severe only if
the abnormality is so slight and its effect so minimal that it
would clearly not be expected to interfere with the individual’s
ability to work, irrespective of age, education or work
experience. Claimant need show only that her impairment is no
so slight and its effect is not so minimal.
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).
At step two, the ALJ is only tasked with determining whether the
claimant has a severe impairment.

At step two, the ALJ determined

McCloud’s numerous non-severe impairments were severe in combination,
and moved on to the third step. (R. 29). Therefore, the question of whether
the ALJ erred in evaluating McCloud’s psychological impairments, as
McCloud claims, is irrelevant since the ALJ found McCloud’s impairments
were severe.
For these reasons, the Court OVERRULES McCloud’s assertion of
reversible error in Claim 1.
B.

Claim 2

Under Social Security Ruling 96-6p:
[T]he opinions of State agency medical and psychological
consultants and other program physicians and psychologists can
be given weight only insofar as they are supported by evidence
in the case record, considering such factors as the supportability
of the opinion in the evidence including any evidence received at
the Administrative Law Judge and Appeals Council levels that
was not before the State agency, the consistency of the opinion
with the record as a whole, including other medical opinions,

10

and any explanation for the opinion provided by the State
agency medical or psychological consultant or other program
physician or psychologist.
SSR 96-6p, rescinded and replaced by SSR 17-2p.7
On June 3, 2013, McCloud reported to psychologist Richard S.
Reynolds, Ph. D., for a disability determination evaluation. (R. 418-21 [SSA
Ex. 7F]). Dr. Reynolds concluded:
In my opinion, information in the DDS file and patient
presentation do not support deficits in ability to understand
information in a work setting. Ability to remember and carry
out instructions in a work place is currently moderately
impaired. [McCloud] is likely to have mild deficits in ability to
interact appropriately with the public, supervisors, co-workers,
and routine work stressors due to Mood Disorder, NOS. In my
opinion, [ ] McCloud should be scheduled to receive a Wechsler
Memory Scale to further document claims regarding poor
memory.
(R. 421 [SSA Ex. 7F]). On July 10, 2013, McCloud completed the Wechsler
Adult Intelligence Scale, Fourth Edition (the “Wechsler AIS”), which was
administered by Dr. Reynolds. (R. 423-24 [SSA Ex. 8F]). From McCloud’s
results from the Wechsler AIS, Dr. Reynolds concluded:
Test scores on the Wechsler Memory Scale-Fourth Edition are
not sufficient for diagnosis of Cognitive Disorder, NOS.
Problems with memory alleged by the patient at the evaluation
on 06/03/2013 are not substantiated. It is likely that other
diagnoses likely affect the client’s attention and concentration. I
do believe the client is likely to have moderate deficits in ability
to remember and carry[ out] instructions in a work environment
due to Mood Disorder, NOS, Anxiety Disorder, NOS, and
Obsessive Cognitive Disorder.
(R. 424 [SSA Ex. 8F]).
7

Social Security Ruling 17-2p became effective on March 27, 2017.

11

The ALJ assigned Dr. Reynolds’s opinion from the June 3, 2013,
evaluation “no weight” and Dr. Reynolds’s opinion from the July 10, 2013,
evaluation “some, but not great weight” because:
[Dr. Reynolds’s] initial conclusions, as he eventually conceded,
were not supported by medical determination.
His initial
conclusions were clearly based on [McCloud’s] subjective reports
and, although Dr. Reynold[s] was unaware, her subjective reports
were not consistent with the other objective and medical evidence
of record. However, after conceding that his initial conclusions
were inaccurate, the doctor attempted to suggest that limitation
still existed, but that the basis was now emotional as opposed to
cognitive or memory deficit. However, the undersigned carefully
reviewed all of the evidence and concluded that just as his initial
conclusions were void of such findings, the record too is void of
such findings. As discussed [in the following], the record is thin
on any objective evidence of emotional or other mental issue
affecting [McCloud’s] capacity for greater than simple work
activity, social functioning or activities of daily living.
(R. 33).
The evidence of McCloud’s medical problems before her consultative
examination with Dr. Reynolds does not substantiate his opinions. The only
evidence of an inability to remember and carry out instructions due to Mood
Disorder, NOS, Anxiety Disorder, NOS, or Obsessive Cognitive Disorder that
predates McCloud’s examination with Dr. Reynolds were reported by her on
May 9, 2013, during a consultative examination at the Selma Family
Medicine Center at which she complained of “OCD,” “manic depression,”
“insomnia,” and “fatigue” in addition to “carpal tunnel syndrome” and
“bilateral foot pain.” (R. 411 [SSA Ex. 6F]).
The evidence of McCloud’s medical problem after her consultative

12

examination with Dr. Reynolds also does not substantiate his opinions.
McCloud visited the Selma Doctor’s Clinic, P.C., between September 5, 2013,
and January 20, 2015. (See R. 439-53 [SSA. Ex. 11F]). On September 5,
2013, it was noted McCloud’s “[j]udgment and insight appropriate,” she was
“[a]lert and oriented to person, place, and time,” and “[l]ong term and short
term memory intact,” (R. 448 [SSA Ex. 11F]); on October 14, 2013, it was
noted McCloud had “[n]o [a]nhedoia, [f]eelings of [e]xcessive [g]uilt or
[g]randeur, [e]xcesive [a]lcohol or [d]rug use,” she had “[a]ppropriate
[o]ptimism,” and she was “[a]lert and [o]riented,” (R. 446 [SSA Ex. 11F]); on
September 16, 2014, it was, again, noted McCloud had “[n]o [a]nhedoia,
[f]eelings of [e]xcessive [g]uilt or [g]randeur, [e]xcesive [a]lcohol or [d]rug
use,” she had “[a]ppropriate [o]ptimism,” her “[j]udgment and insight [were]
appropriate,” she was “[a]lert and oriented to person, place, and time,” and
her “[l]ong term and short term memory [were] intact,” (R. 443-44 [SSA Ex.
11F]); and on January 20, 2015, it was noted McCloud was “obsessed with
guilt,” she felt “hopeless,” was “[a]lert and [o]riented,” but had “[d]epression,”
“[a]nxiety,” and a “[f]lat effect,” (R. 442 [SSA Ex. 11F]).
Between November 11, 2013, and February 27, 2015, McCloud visited
the Neurology Consultants of Central Alabama where Walid Freij, M.D,
treated her. (See R. 465-80 [SSA Ex. 14F]). On December 11, 2013, Dr. Freij
noted McCloud’s “episodes of zooming out, forgetfulness and erratic behavior
could be related to partial complex seizures,” “encephalomalacia of [her] left

13

frontal temporal and parietal regions,” “[m]ild mixed sensory motor
peripheral neuropathy,” and “left carpal tunnel syndrome affecting the
sensory and motor components without evidence of denervation,” (R. 473
[SSA Ex. 14F]); on December 23, 2014, Dr. Freij assessed McCloud with
forgetfulness, (R. 471 [SSA Ex. 14F]); and on January 3, 2014, an
electroencephalogram (EEG) was performed on McCloud the results of which
were normal, and Dr. Freij noted there were “[n]o focal, diffuse or generalized
abnormalities,” and concluded “[t]he absence of epile[p]tiform discharge
during the EEG recording [did] not rule out the diagnosis of a seizure
disorder,” (R. 469 [SSA Ex. 14F]).
Between January 9, 2015, and July 8, 2015, McCloud visited
Behavioral Health of Selma for treatment with Dr. Reynolds. (See R. 457-64
[SSA Ex. 13F]; R. 481-90 [SSA Ex. 15F]). On January 9, 2015, Dr. Reynolds
diagnosed McCloud with bipolar disorder, NOS, major depression, and
agoraphobia and noted:
McCloud presented as an alert and irritable 53 year old
Caucasian female who is oriented to all spheres. Speech is
mildly pressured. Behavior is unremarkable. Mood is “pretty
bad.” Affect is irritable and dysphoric. [ ]McCloud denies
suicidal or homicidal ideation impulse or plan.
Thought
associations are tight. Thought content is logical. There is no
history of symptoms of psychotic intrusions. Recent memory is
intact by trip to the examination and recent meals. Remote
memory is intact by history of previous events. Insight is rather
shallow and guarded. [ ]McCloud acknowledges mistrust of
others including this writer. History of social judgment is fair.
(R. 459 [SSA Ex. 13F]).

14

On January 28, 2015, Dr. Reynolds’s diagnoses changed to bipolar 1,
current or most recent episode depressed, moderate; agoraphobia; and panic
disorder. Dr. Reynolds noted:
McCloud appears friendly, fully communicative, but tense. Her
speech is pressured with normal volume. There is no difficulty
naming objects or repeating phrases. She is overtalkative.
Affect is appropriate, full range, and congruent with mood.
There are no apparent signs of hallucinations, delusions, bizarre
behaviors, or other indicators of psychotic process. Associations
are intact, thinking is logical, and thought content appears
appropriate. The patient convincingly denies suicidal ideas or
intentions. Homicidal ideas or intentions are denied. Cognitive
functioning and fund of knowledge is intact and age appropriate.
Short and long term memory are intact, as is ability to abstract
and do arithmetic calculations. This patient is fully oriented.
Vocabulary and fund of knowledge indicate cognitive functioning
in the normal range. Insight into problems appears fair.
Judgment appears fair. There are signs of anxiety. [ ]McCloud’s
behavior in the sessions was cooperative and attentive with no
gross behavioral abnormalities. No signs of withdrawal or
intoxication are in evidence.
...
[McCloud] continues to need outpatient treatment. [McCloud]
continues to exhibit symptoms of an emotional disorder that
interfere with [day-to-day] functioning and [McCloud] is unable
to alleviate these symptoms.
(R. 461 [SSA Ex. 13F]).
On February 25, 2015, Dr. Reynolds’s diagnoses remained the same,
and he noted:
McCloud presented as friendly, full communicative, and appears
happy. Her speech is pressured, with normal volume. There is
no difficulty naming objects or repeating phrases. She is
excited. Her affect is congruent with mood. Her associations
are loose. There are no apparent signs of hallucinations,
delusions, bizarre behaviors, or other indicators of psychotic

15

process. Thinking is logical, and thought content appears
appropriate. No suicidal ideas or intentions are present today.
Homicidal ideas or intentions are denied. Cognitive functioning
and fund of knowledge is intact and age appropriate. Short and
long term memory are intact, as is ability to abstract and do
arithmetic calculations.
This patient is fully oriented.
Vocabulary and fund of knowledge indicate cognitive functioning
in the normal range. Insight into problems appears to be poor.
Judgment appears fair. There are no signs of anxiety. [
]McCloud is fidgety. No signs of withdrawal or intoxication are
in evidence.
...
[McCloud] continues to need outpatient treatment. [McCloud]
continues to exhibit symptoms of an emotional disorder that
interfere[s] with [day-to-day] functioning and [McCloud] is
unable to alleviate these symptoms.
(R. 463 [SSA Ex. 13F]).
On March 11, 2015, Dr. Reynolds’s diagnoses remained the same, and
he noted:
McCloud appears angry, fully communicative, and tense. She
exhibits speech that is normal in rate, volume, and articulation
and is coherent and spontaneous. Language skills are intact.
Demeanor is sad. Thought content is depressed. Body posture
and attitude convey an underlying depressed mood. Facial
expression and general demeanor reveal depressed mood. Her
affect is congruent with mood. There are no apparent signs of
hallucinations, delusions, bizarre behaviors, or other indicators
of psychotic process. Associations are intact, thinking is logical,
and thought content appears appropriate. Suicidal ideas are
convincingly denied. Homicidal ideas or memory are intact, as
is ability to abstract and do arithmetic calculations. This
patient is fully oriented. Vocabulary and fund of knowledge
indicate cognitive functioning in the normal range. Insight into
problems appears fair. Judgment appears fair. [ ]McCloud is
fidgety. [ ]McCloud is restless. [ ]McCloud’s behavior in the
session was cooperative. No signs of withdrawal or intoxication
are in evidence.

16

...
[McCloud] continues to need outpatient treatment. [McCloud]
continues to exhibit symptoms of an emotional disorder that
interfere with [day-to-day] functioning and [McCloud] is unable
to alleviate these symptoms.
(R. 481 [SSA Ex. 15F]).
On April 1, 2015, Dr. Reynolds’s diagnoses remained the same, and he
noted:
McCloud appears calm, fully communicative, but tense. She
exhibits speech that is normal in rate, volume, and articulation
and is coherent and spontaneous. Language skills are intact.
She appears downcast. Thought content is depressed. Body
posture and attitude convey an underlying depressed mood. Her
affect is blunted. There are no apparent signs of hallucinations,
delusions, bizarre behaviors, or other indicators of psychotic
process. Associations are intact, thinking is logical, and thought
content appears appropriate. No suicidal ideas or intentions are
present today.
Homicidal ideas or intentions are denied.
[McCloud] correctly gives the current date, name and location
and is situationally aware. Memory for immediate, recent, and
remote events is intact.
[McCloud] presents as alert.
Vocabulary and fund of knowledge indicate cognitive functioning
in the normal range. Insight into problems appears fair.
Judgment appears fair. There are signs of anxiety. There are
no signs of hyperactive or attentional difficulties. [ ]McCloud’s
behavior in the session was cooperative. No signs of withdrawal
or intoxication are in evidence.
...
[McCloud] continues to need outpatient treatment. [McCloud]
continues to exhibit symptoms of an emotional disorder that
interfere with [day-to-day] functioning and [McCloud] is unable
to alleviate these symptoms.
(R. 483 [SSA Ex. 15F]).
On May 13, 2015, Dr. Reynolds’s diagnoses remained the same, and he

17

noted:
McCloud appears glum, communicative, and tense. She exhibits
speech that is normal in rate, volume, and articular and is
coherent and spontaneous. Language skills are intact. She
appears downcast. Thought content is depressed. Her affect is
appropriate to verbal content. There are no apparent signs of
hallucinations, delusions, bizarre behaviors, or other indicators
of psychotic process. Associations are intact, thinking is logical,
and thought content appears appropriate. No suicidal ideas or
intentions are present today. Homicidal ideas or intentions are
denied. [McCloud] correctly gives the current date, name, and
location and is situationally aware. Memory for immediate,
recent, and remote events is intact. [McCloud] presents as alert.
Vocabulary and fund of knowledge indicate cognitive functioning
in the normal range. Insight into problems appears fair.
Judgment appears fair. There are signs of anxiety. There are
no signs of hyperactive or attentional difficulties. [ ]McCloud’s
behavior in the session was cooperative. No signs of withdrawal
or intoxication are in evidence.
...
[McCloud] continues to need outpatient treatment. [McCloud]
continues to exhibit symptoms of an emotional disorder that
interferes with [day-to-day] functioning and [McCloud] is unable
to alleviate these symptoms.
(R. 485 [SSA Ex. 15F]).
On June 10, 2015, Dr. Reynolds’s diagnoses remained the same, and he
noted:
McCloud presents as irritable, distracted, and tense. Her speech
is pressured, with normal volume. There is no difficulty naming
objects or repeating phrases. She is irritable. Her affect is
labile. Her associations are loose. A paranoid manner and other
signs of paranoid process are present. No suicidal ideas or
intentions are present today. Homicidal ideas or intentions are
denied. Cognitive functioning and fund of knowledge are intact
and age appropriate. Short and long term memory are intact, as
is ability to abstract and do arithmetic calculations. This
patient is fully oriented. Vocabulary and fund of knowledge

18

indicate cognitive functioning in the normal range, insight into
problems appears to be poor. Judgment appears fair. There are
signs of anxiety. She is easily distracted. [ ]McCloud displayed
uncooperative behavior during the examination. No signs of
withdrawal of intoxication are in evidence.
...
[McCloud] continues to need outpatient treatment. [McCloud]
continues to exhibit symptoms of an emotional disorder that
interfere[s] with [day-to-day] functioning and [McCloud] is
unable to alleviate these symptoms.
(R. 487 [SSA Ex. 15F]).
Finally, on June 10, 2015, Dr. Reynolds’s diagnoses remained the
same, and he noted:
McCloud appears friendly, attentive, communicative, and
relaxed. She exhibits speech that is normal in rate, volume, and
articulation and is coherent and spontaneous. Language skills
are intact. Mood presents as normal with no signs of either
depression or mood elevation. Affect is appropriate, full range,
and psychotic process. Associations are intact, thinking is
logical, and thought content appears appropriate. [McCloud]
convincingly denies suicidal ideas or intentions. Homicidal
ideas or intentions are denied. Cognitive functioning and fund
of knowledge are intact and age appropriate. Short and long
term memory are intact, as is ability to abstract and do
arithmetic calculations. [McCloud] is fully oriented. Vocabulary
and fund of knowledge indicate cognitive functioning in the
normal range. Insight into problems appears fair. Judgment
appears fair. There are no signs of anxiety. [ ]McCloud is
fidgety. No signs of withdrawal or intoxication are in evidence.
...
[McCloud] continues to need outpatient treatment. [McCloud]
continues to exhibit symptoms of an emotional disorder that
interfere with [day-to-day] functioning and [McCloud] is unable
to alleviate these symptoms.
(R. 489 [SSA Ex. 15F]).

19

The medical evidence does not substantiate Dr. Reynolds’s opinion
McCloud had an inability to remember and carry out instructions due to
Mood Disorder, NOS, Anxiety Disorder, NOS, or Obsessive Cognitive
Disorder. McCloud’s reported daily activities, also, do not substantiate Dr.
Reynolds’s opinions. At McCloud’s examination with Dr. Reynolds on June 3,
2013, he noted:
McCloud conducts activities of daily living autonomously. She
reports that times of awaking and going to sleep varies. She
reports that she eats two meals a day. [ ]McCloud reports that
she does grocery shopping, housework, cooking, and
management of finances together with her husband. [ ]McCloud
reports that she attends church. [ ]McCloud reports that in her
spare time she enjoys sitting outdoors. [ ]McCloud reports that
she previously enjoyed camping and going dancing. She reports
that she no longer does these activities. [ ]McCloud reports that
she maintained some friendships. She reports that she has a
driver’s license and drives.
(R. 420 [SSA Ex. 7F]).
Also, McCloud reported she feeds and waters her dogs; prepares simple
meals; loads the washer, dryer, and dishwasher; sits on the porch to bird and
squirrel watch; drives a vehicle; shops in stores; has an interest in bird
watching; enjoys being outdoors; visits with friends twice a month to cook out
and play cards or board games; attends church; when going to places, she
does not need to be reminded to go places and does not need someone to
accompany her; does not have any problems getting along with family,
friends, neighbors, or others; is able to walk for approximately thirty (30)
minutes; is able to pay attention for thirty (30) minutes; does not have a

20

problem following written instructions; and is able to follow simple spoken
instructions. (R. 265-72 [SSA Ex. 7E]). Substantial evidence supports the
ALJ’s decision to assign little weight to Dr. Reynolds’s opinions.
On July 22, 2013, Harold R. Veits, M.D., a non-examining state agency
consultant, completed a Psychiatric Review Technique Form of McCloud. (R.
98-100 [SSA Ex. 2A]). Dr. Veits assessed McCloud under listings 12.04 and
12.06 for affective disorders anxiety-related disorders, respectively, and
determined McCloud had mild restriction of activities of daily living; mild
difficulties in maintaining social functioning; moderate difficulties in
maintaining concentration, persistence, or pace; and no episodes of
decompensation. (R. 99 [SSA Ex. 2A]). Dr. Veits, also, completed a Mental
Residual Functional Capacity Assessment of McCloud in which he opined she
“has the ability to understand, remember and carry out very short and simple
instructions” and “can attend for two hour periods.” (R. 103-04 [SSA Ex. 2A]).
The ALJ assigned Dr. Veits’s opinions no weight because they were
inconsistent with the remainder of the record. (R. 41).
Dr. Veits’s opinions were, in part, based on the medical evidence
provided by Dr. Reynolds, (R. 98-99 [SSA Ex. 2A]), which the Court found
unsupported by the medical evidence of record, see supra at 11-21, and Dr.
Veits’s opinions are inconsistent with the remainder of the medical evidence
of record, see supra at 12-21. Therefore, the ALJ did not commit error by
assigning no weight to Dr. Veits’s opinions.

21

For these reasons, the Court OVERRULES McCloud’s assertion of
reversible error in Claim 2.
C.

Claim 3

“The contention that the combination of investigative and adjudicative
functions

necessarily

creates

an

unconstitutional

risk

of

bias

in

administrative adjudication has a much more difficult burden of persuasion
to carry.” Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464, 43 L. Ed.
2d 712 (1975). There is a “presumption of honesty and integrity in those
serving as adjudicators.” Id. “[A]n allegation of ALJ unfairness, prejudice,
partiality, or bias . . . [is reviewed] under the abuse of discretion standard.”
SSR 13-1p. An ALJ will be found to have abused her discretion when “there
has been an improper exercise, or a failure to exercise, administrative
authority.” Id. An ALJ abuses her discretion “if the record shows that the
ALJ failed to conduct a full and fair hearing by refusing to allow the claimant
to testify or cross-examine witnesses.” Id.
McCloud takes exception to certain interactions with the ALJ during
the hearing, (see Doc. 18, at 14-15)–those interactions are included in the
hearing transcript excerpt that follows:
Q.
Before you stopped working did any doctor
specifically tell you you could no longer work?
stress.

A.

No, they just kept telling that I was suffering from

Q.
Ma’am, I’m going to ask the questions, and you please try
to keep your answers focused [on] that specific question.

22

Again, your counsel will get to the other thing. I’m trying
to make sure that I have the record straight, then I can give the
mike to your counsel.
At the time you stopped working did a doctor tell you you
could no longer work
A.

No.

Q.

Did you tell your doctor, I can no longer work?

A.

Yes.

Q.

And what did your doctor say?

A.

He put me on an anti-depressant and Xanax for stress.

Q.

But he did not tell you to stop working.

A.

No.

Q.
At any time has it been your testimony that you received
dedicated mental health care from any doctor, as when he put
you on medication any time before or after September 19th? Did
he send you over to see a psychiatrist or psychologist?
A.

No.

Q.

Did you attempt to go see a psychologist or psychiatrist?

A.

Not at that time.

Q.
At what time did you attempt to see a psychiatrist or
psychologist?
A.
When, when I was not, when I had quit my job I went, I
went to my - Q.
Ma’am, you’re doing it again. I need just a chronological
answer to my question. When did you pursue this care?
A.

A year, a year or two after I was no longer working.

Q.
So you stopped working for a year before January 2011.
You [w]ent to seek mental health care a year later.

23

A.

Yes, sir.

Q.
I am going to ask you a logical question, and try to keep
your answer plain and brief.
If you believed you were becoming suicidal, if you believed
you could no longer work, all of these things were coming to a
point where you just had to be out of work, why would you wait
a year instead of immediately seeking mental health care while
you had the insurance, while you had the capability to do so?
A.

It’s part of the disease. I just, I felt like - -

Q.

What disease?

A.

The bipolar disease.

Q.
Ma’am, try to stay with me. Your allegations include
congenital defect, vascular disease, and carpal tunnel syndrome.
There is no mention in your allegations of a mental impairment.
ATTY:
-

Pardon me, Your Honor. There’s medical evidence -

ALJ: That wasn’t my question, counsel.
question. My question was specific.

That wasn’t my

BY THE ADMINISTRATIVE LAW JUDGE:
Q.
I saw no mention of a mental impairment in your
allegation. Why is that?
A.
The mental is, I always had the mental, but it isn’t, it’s
because of the brain damage. My brain doesn’t function
normally. I’ve been on medication since I was 21, but, and I
have - Q.

Okay, so - -

A.

Okay.

Q.
Per your earlier testimony with your congenital defect you
completed high school.

24

A.

Yes, sir.

Q.

You studied –

A.

Uh huh.

Q.
You completed a degree in office administration. And you
have a good work history including, I’m almost sure, that the
vocational expert’s going to tell me all of your work history is at
least semiskilled work.
So we cannot go back now and say the congenital issue 20
years later caused you to function. In fact, just the history that
you’re giving me in your testimony this morning detracts from
what you’re telling me, that that effect is now causing you to be
unable to work. That’s first.
Second. Follow me closely. Per your testimony, it wasn’t
cognitive inability to work, it wasn’t intellectual inability to
work, it was stress. That’s not a factor going back 20 years
based on your history and presentation here today.
So is it these physical things that you allege? Or is it your
mental health that stopped you from working?
A.
They go hand in hand. It was only as I’ve aged, I was able
to control and able to overcome a lot of the problems that I was
battling when I was young. As I’ve aged they’ve become out of
control. It’s only as I’ve gotten older that it’s become out of
control where the medications that I’ve been on and off stopped
working. It’s always been a battle. It’s just that when I was
younger it was a battle easier to fight.
Now in addition to the problems, the mental problem that
I’ve battled, I also have the physical problems which just make
the mental problems worse.
And I did seek help.
ALJ: Counsel, the floor is yours.
(R. 59-63).
The statements to which McCloud directs the Court’s attention, in
context, show the ALJ interrupting McCloud when her answers diverged
from or elaborated on the question the ALJ asked her, but, as the ALJ

25

explained, “Ma’am, I’m going to ask the questions, and you please try to keep
your answers focused [on] that specific question. Again, your counsel will get
to the other thing. I’m trying to make sure that I have the record straight,
then I can give the mike to your counsel.” (R. 59-60). Indeed, McCloud was
able to elaborate on her condition after the ALJ received answers to his
questions, (see R. 63), and counsel for McCloud was able to question McCloud
at length to fully flesh out her condition and complete the record, (see R. 6377). At no point throughout the hearing, did the ALJ express an explicit bias
against McCloud.

(See R. 50-85).

McCloud infers bias from the ALJ’s

interruptions but such does not rise to an abuse of discretion. See Litecky v.
United States, 510 U.S. 540, 555-56, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474
(1994) (“[J]udicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge. They may do so if
they reveal an opinion that derives from an extrajudicial source; and they
will do so if they reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible. . . . Not establishing bias or partiality,
however, are expressions of impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men and women, even
after having been confirmed as federal judges, sometimes display. A judge’s
ordinary efforts at courtroom administration-even a stern and shorttempered judge’s ordinary efforts at courtroom administration-remain

26

immune.”). In sum, the ALJ did not abuse his discretion.
For these reasons, the Court OVERRULES McCloud’s assertion of
reversible error in Claim 3.
D.

Claim 4

In Claim 4, McCloud asserts that, because the ALJ assigned little
weight to Drs. Chittom’s and Freij’s opinions, and failed to assign weight to
the opinions of the state agency single decision maker (“SDM”), Suzanne
Manley, in violation of SSR 96-6p and 96-8, the ALJ’s RFC “was not rooted in
the record.” (Doc. 18, at 8). McCloud, also, argues the ALJ “did not consider
the combined impact of physical and psychological impairments.” (Doc. 18, at
19).
Preliminarily, SSR 96-6p pertains to state agency medical and
psychological consultants and not to SDMs. See SSR 96-6p (“At the [ALJ]
and Appeals Council levels, RFC assessments by State agency medical or
psychological consultants or other program physicians or psychologists are to
be considered and addressed in the decision as medical opinions from
nonexamining sources about what the individual can still do despite his or
her impairment(s).”); Siverio v. Comm’r of Soc. Sec., 461 F. App’x 869, 871
(11th Cir. 2012) (“[T]he ‘SDM’ designation connotes no medical credentials.
See [20 C.F.R.] § 404.906(a), (b)(2). Indeed, the SSA’s Program Operations
Manual System (“POMS”) explicitly distinguishes RFC assessments produced
by an SDM from those produced by a medical consultant, and states that

27

‘SDM-completed forms are not opinions evidence at the appeals level.’”
(citation omitted)). 8

McCloud’s argument the ALJ did not consider her

impairments in combination is without merit since he expressly did so when
he determined her impairments were severe in combination. (R. 29).
The Court construes McCloud’s remaining arguments to assert (1) the
ALJ is required to adopt at least one medical opinion in formulating an RFC,
and (2) the ALJ did not sufficiently show her work in formulating McCloud’s
RFC.
The Court rejects both assertions.

While the Social Security

regulations require ALJs to consider all medical opinions in the record when
making a disability determination, see 20 C.F.R. §§ 404.1527(b) & 416.927(b),
“[n]othing in the regulations requires the ALJ to accept at least one medical
opinion before rendering a decision—indeed, an ALJ may make a disability
determination without any medical opinion in the record.” Hale v. Colvin,
Civil Action No. 14-00222-CG-N, 2015 WL 3397939, at *11 (S.D. Ala. Apr. 24,
2015), report and recommendation adopted, 2015 WL 3397628 (S.D. Ala. May
26, 2015); see also Packer v. Astrue, Civil Action No. 11-0084-CG-N, 2013 WL
593497, at *3 (S.D. Ala. Feb. 14, 2013) (Granade, J.) (“[T]he ALJ is not
precluded from making a proper RFC determination in the absence of an
opinion from an acceptable medical source.” (internal quotation marks and
In this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014).
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.”).

8

28

citation omitted)), aff'd, Packer v. Comm'r, Soc. Sec. Admin., 542 F. App’x
890 (11th Cir. Oct. 29, 2013) (per curiam); Chapo v. Astrue, 682 F.3d 1285,
1288 (10th Cir. 2012) (“[T]here is no requirement in the regulations for a
direct correspondence between an RFC finding and a specific medical opinion
on the functional capacity in question. The ALJ, not a physician, is charged
with determining a claimant's RFC from the medical record.” (internal
quotation marks and citation omitted)); 20 C.F.R. §§ 404.1527(a)(2) &
416.927(a)(2) (“Evidence that you submit or that we obtain may contain
medical opinions.” (emphasis added)); 20 C.F.R. §§ 404.1546 & 416.946 (“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 properly assigned little weight to Drs.

Chittom’s and Freij’s opinions 9 ; no weight to the SDM’s and Dr. Veits’s
opinions10; and no weight and some, but not great weight to Dr. Reynolds’s
opinions. Accordingly, the ALJ was not required to “fully reflect” any of those

The ALJ assigned Dr. Chittom’s opinion “McCloud is disabled and has been for
quite some time,” (R. 451 [SSA Ex. 11F]), “little weight” because it was “inconsistent
with all records, including his records, (R. 41). The ALJ assigned “little weight,” (R.
42), to Dr. Freij’s opinion, found in a “Clinical Assessment of Pain” form, that
McCloud had “[p]ain . . . to such an extent as to be distracting to adequate
performance of daily activities of work;” had “[g]realty increased pain and to such a
degree as to cause distraction from or total abandonment of task;” and “[d]rug side
effects can be expected to be significant and to limit effectiveness due to distraction,
inattention, drowsiness, etc.,” (R. 466 [SSA Ex. 14F), because “[t]he reasoning
behind his assessment [was] unfounded,” (R. 42).

9

Moreover, the opinion of a non-examining physician “is entitled to little weight
and taken alone does not constitute substantial evidence to support an
administrative decision.” E.g., Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir.
1990) (per curiam).

10

29

opinions in the RFC.
“A clear articulation of both fact and law is essential to our ability to
conduct a review that is both limited and meaningful.” Owens v. Heckler, 748
F.2d 1511, 1514-15 (11th Cir. 1984) (per curiam); see also Freeman v.
Barnhart, 220 F. App'x 957, 959-60 (11th Cir. Mar. 23, 2007) (per curiam)
(“The ALJ has a duty to make clear the weight accorded to each item of
evidence and the reasons for the decision so that a reviewing court will be
able to determine whether the ultimate decision is based on substantial
evidence.”

Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)).

Nevertheless, “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 the district court . . . to
conclude that the ALJ considered her medical condition as a whole.” Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam) (internal
quotation marks omitted). In formulating the RFC at Step Four, the ALJ
thoroughly discussed and weighed the evidence of record and drew
conclusions from that evidence. Apart from the weight the ALJ assigned the
above-mentioned medical opinions and the opinion of the SDM, McCloud
points to no evidence the ALJ allegedly incorrectly or insufficiently assessed.
Rather, McCloud appears to assert only that the ALJ failed to adequately
show his work in applying Social Security Ruling 96-8p. However, both this
Circuit and others have repeatedly rejected similar contentions that an ALJ’s

30

failure to expressly show his or her work under SSR 96-8p is automatic
grounds for reversal.

See Freeman, 220 F. App'x at 959-60 (“Freeman

contends that the ALJ failed to identify her functional limitations and workrelated abilities on a function-by-function basis. . . . While the ALJ could have
been more specific and explicit in his findings, he did consider all of the
evidence and found that it did not support the level of disability Freeman
claimed. Only after he determined that she failed to carry her burden of
showing that she had become disabled from performing any of her workrelated activities did he state that she could perform light exertional activity.
Therefore, the ALJ complied with SSR 96–8p by considering Freeman's
functional limitations and restrictions and, only after he found none,
proceeded to express her residual functional limitations in terms of exertional
levels. Furthermore, the ALJ’s analysis of the evidence and statement that
Freeman could perform light work indicated how much work-related activity
she could perform because ‘light work requires standing or walking, off and
on, for a total of approximately 6 hours of an 8–hour workday.’ SSR 83–10.”);
Castel v. Comm'r of Soc. Sec., 355 F. App'x 260, 263 (11th Cir. Nov. 30, 2009)
(“Castel argues that the ALJ reached an RFC determination without going
through a function-by-function analysis. Specifically, Castel claims that the
ALJ did not perform the function-by-function analysis to determine Castel's
ability to handle strength demands. This argument is unfounded. The ALJ
made a determination of Castel's RFC at step four of the function-by-function

31

analysis.

The ALJ considered two disability examiners' reports, Castel's

testimony, and two Disability Determination Services’ (‘DDS’) reports in
arriving at Castel's RFC.

See SSR 96–8p . . . (advising that the RFC

assessment must consider all relevant evidence, including medical history,
medical evaluations, daily activities, and lay evidence). The ALJ ultimately
decided that Castel was capable of medium exertion level work and thus was
capable of performing past relevant work. . . . We do not require the ALJ to
‘specifically refer to every piece of evidence in his decision,’ so long as the
decision is sufficient to allow us to conclude that the ALJ considered the
claimant's medical condition as a whole. Dyer v. Barnhart, 395 F.3d 1206,
1211 (11th Cir. 2005) (per curiam). The ALJ found that the medium level
work determination was consistent with the medical evidence and found
Castel’s RFC to be at a medium level of work. The ALJ performed a proper
RFC function analysis, based on substantial evidence, and we shall defer to
his conclusions.”); Carson v. Comm'r of Soc. Sec., 440 F. App'x 863, 864 (11th
Cir. Sept. 21, 2011) (per curiam) (“Following [SSR 96-8p’s ‘function-byfunction’] rubric, the ALJ fully discussed and evaluated the medical evidence,
Mr. Carson’s testimony, and the effect each impairment has on his daily
activities. While, the ALJ did not specifically refer to Mr. Carson’s ability to
walk or stand, the ALJ did limit Mr. Carson’s exertional level of work to ‘light
work.’ ‘Light work’ by definition limits the amount an individual can walk or
stand for approximately six hours in an eight-hour work day. See SSR 83–10,

32

1983 WL 31251 (S.S.A.). Furthermore, the ALJ’s thorough evaluation of Mr.
Carson’s case led the ALJ to adopt additional limitations to Mr. Carson's
ability to perform light work. Simply because the ALJ chose not to adopt
further limitations on Mr. Carson's ability to walk or stand, does not mean
the ALJ did not properly consider the alleged limitations.”); Cichocki v.
Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (“Where an ALJ’s analysis at Step
Four regarding a claimant’s functional limitations and restrictions affords an
adequate basis for meaningful judicial review, applies the proper legal
standards, and is supported by substantial evidence such that additional
analysis would be unnecessary or superfluous, we agree with our sister
Circuits that remand is not necessary merely because an explicit function-byfunction analysis was not performed.” Zatz v. Astrue, 346 F. App’x 107, 111
(7th Cir. Oct. 5, 2009) (per curiam); Bayliss v. Barnhart, 427 F.3d 1211, 1217
(9th Cir. 2005); Depover v. Barnhart, 349 F.3d 563, 567–68 (8th Cir. 2003);
Delgado v. Comm'r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. Mar. 4, 2002)
(per curiam)); Chavez v. Astrue, 276 F. App'x 627, 627-28 (9th Cir. May 1,
2008) (per curiam) (“Chavez claims that the ALJ committed legal error by
determining his mental residual functional capacity without performing a
function-by-function assessment as required by Social Security Ruling 96-8p,
1996 WL 374184, at *3 (July 2, 1996). This claim fails because the ALJ
considered and noted ‘all of the relevant evidence’ bearing on Chavez's ‘ability
to do work-related activities,’ as required by the function-by-function

33

analysis. See Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *3.”); Hendron v.
Colvin, 767 F.3d 951, 956-57 (10th Cir. 2014) (rejecting claimant’s contention
that the ALJ’s “RFC is not in the proper form” because the ALJ did not
“separately discuss and make findings regarding her abilities to sit, stand,
walk, lift, carry, push, or pull” (citing Keyes–Zachary v. Astrue, 695 F.3d
1156, 1166 (10th Cir. 2012) (“Where, as here, we can follow the adjudicator’s
reasoning in conducting our review, and can determine that correct legal
standards have been applied, merely technical omissions in the ALJ's
reasoning do not dictate reversal.

In conducting our review, we should,

indeed must, exercise common sense. . . . [W]e cannot insist on technical
perfection.”))).
Accordingly,

the

Court

OVERRULES

McCloud’s

assertion

of

reversible error in Claim 4.
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued April 28, 2016, denying McCloud’s
applications for PoD and DIB is AFFIRMED under 42 U.S.C. § 405(g) and
1383(c)(3).
Final judgment shall issue separately in accordance with this Order
and Rule 58, FED. R. CIV. P.
DONE and ORDERED this the 12th day of September 2017.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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