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Ethridge v. Berryhill

United States District Court, M.D. Alabama, Southern Division

October 23, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.




         Jennifer W. Ethridge (“Plaintiff”) filed an application for disability and disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401, et seq., on August 5, 2013, alleging disability beginning on April 21, 2010. Plaintiff's application for benefits was denied at the initial administrative level. Plaintiff then requested and received a hearing before an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a decision finding Plaintiff had not been under a disability, as defined in the Social Security Act, from April 21, 2010, through the date of the decision on March 31, 2015. Plaintiff appealed to the Appeals Council on M a y 8, 2015 . T h e A p p e a l s Council denied review on July 25, 2016. Accordingly, the ALJ's decision consequently became the final decision of the Commissioner of Social Security (“Commissioner”).[3] See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry of a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. 12); Def.'s Consent to Jurisdiction (Doc. 13). Based on the court's review of the record and the briefs of the parties, the court AFFIRMS the decision of the Commissioner.


         Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to benefits when the person is unable to

engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

42 U.S.C. § 423(d)(1)(A).[4]

         To make this determination, the Commissioner employs a five-step, sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.

(1) Is the person presently unemployed?

(2) Is the person's impairment severe?

(3) Does the person's impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of Impairments]?

(4) Is the person unable to perform his or her former occupation?

(5) Is the person unable to perform any other work within the economy? An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).[5]

         The burden of proof rests on a claimant through Step Four. See Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying disability once they have carried the burden of proof from Step One through Step Four. At Step Five, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform. Id.

         To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual Functional Capacity (“RFC”). Id. at 1238-39. The RFC is what the claimant is still able to do despite the claimant's impairments and is based on all relevant medical and other evidence. Id. It may contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines[6] (“grids”) or call a vocational expert (“VE”). Id. at 1239-40.

         The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id.

         The court's review of the Commissioner's decision is a limited one. This court must find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the Commissioner's findings, [a reviewing court] must affirm if the decision reached is supported by substantial evidence.”). A reviewing court may not look only to those parts of the record which support the decision of the ALJ, but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).

[The court must] . . . scrutinize the record in its entirety to determine the reasonableness of the [Commissioner's] . . . factual findings. . . . No similar presumption of validity attaches to the [Commissioner's] . . . legal conclusions, including determination of the proper standards to be applied in evaluating claims.

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).


         Plaintiff was 42 years old on the date of the hearing before the ALJ, and had completed high school, with some college. Tr. 34-35. Following the administrative hearing, and employing the five-step process, the ALJ found at Step One that Plaintiff “has not engaged in substantial gainful activity since April 21, 2010, the alleged onset date.” Tr. 14. At Step Two, the ALJ found that Plaintiff suffers from the following severe impairments: “degenerative disc diseases, fibromyalgia, asthma, migraine headaches, obesity and affective disorder[.]” Tr. 14. At Step Three, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the impairments listed” in the Social Security Act. Tr. 15. Next, the ALJ articulated Plaintiff's RFC, stating that Plaintiff

has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit for six hours in an eight-hour workday; stand and/or walk for six hours in an eight-hour workday; and push and/or pull as much as she can lift and/or carry. She can occasionally climb ramps or stairs; never climb ladders or scaffolds; and occasionally balance, stoop, kneel, crouch, or crawl. The claimant can never be exposed to unprotected heights or moving mechanical parts. The claimant can occasionally be exposed to dust, fumes, gases, and pulmonary irritants and extreme cold. The claimant can perform simple, routine, repetitive tasks.

Tr. 17. Having consulted with a VE at the hearing, the ALJ concluded at Step Four that Plaintiff is “unable to perform any past relevant work[.]” Tr. 21. After consulting with the VE, the ALJ determined that “[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform[.]” Tr. 22. Finally, at Step Five, and based upon the testimony of the VE, the ALJ determined that Plaintiff “has not been under a disability, as defined in the Social Security Act, from April 21, 2010, through the date of this decision[.]” Tr. 23.


         Plaintiff presents two issues for the court to consider in its review of the Commissioner's decision. First, Plaintiff argues “the ALJ erred by according little weight to [Plaintiff's] examining physicians and greater weight to non-examining physicians.” Doc. 9 at 1. Second, Plaintiff argues “the ALJ's finding of [Plaintiff's] residual functional capacity (RFC) is not based on substantial evidence.” Id.

         V. DISCUSSION

         A. Whether the ALJ Erred in Affording Plaintiff's Examining Physicians Little Weight and Greater Weight to the Non-Examining Physicians.

         “Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Absent “good cause, ” an ALJ is to give the medical opinions of treating physicians “substantial or considerable weight.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause to discount a treating physician's opinion exists “when the: (1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). With good cause, an ALJ may disregard a treating physician's opinion, but he “must clearly articulate [the] reasons” for doing so. Id. at 1240-41. The Eleventh Circuit has emphasized that courts “will not second guess the ALJ about the weight the treating physician's opinion deserves so long as he articulates a specific justification for it.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 823 (11th Cir. 2015) (citing Moore, 405 F.3d at 1212).

         Unless a treating source's medical opinion is afforded controlling weight, the Commissioner will consider all of the following factors in deciding the weight we give to any medical opinion.

(1) Examining relationship. Generally, more weight is given to the medical opinion of a source who has examined a claimant than to the medical opinion of a medical source who has not examined the claimant.

(2) Treatment relationship. Generally, more weight is given to medical opinions from a claimant's treating sources, since those sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of a claimant's medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If a treating source's medical opinion on the issue(s) of the nature and severity of a claimant's impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the claimant's case record, it will be given controlling weight. When a treating source is not given controlling weight, the Commissioner must apply the factors below in assigning a particular weight to the opinion of the treating source.

(i) Length of the treatment relationship and the frequency of examination. Generally, the longer a treating source has treated a claimant and the more times the claimant has been seen by a treating source, the more weight will be given to the source's medical opinion.
(ii) Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has about a claimant's impairment(s) the more weight will be given to the source's medical opinion.

(3) Supportability. The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight that opinion will be given.

(4) Consistency. Generally, the more consistent a medical opinion is with the record as a whole, the more weight it will be given.

(5) Specialization. The Commissioner generally gives more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist.

(6) Other factors. When considering how much weight to give to a medical opinion, the Commissioner will also consider any factors the claimant or others bring to the Commissioner's attention, or of which the Commissioner is aware, which tend to support or contradict the medical opinion.

20 C.F.R. § 404.1527(c).

With regards to the ALJ's consideration of non-examining physicians, then, [r]egulations require that an ALJ consider the opinions of nonexamining physicians, including state agency [medical] consultants. 20 C.F.R. § 404.1527(f). The weight due to a non-examining physician's opinion depends, among other things, on the extent to which it is supported by clinical findings and is consistent with other evidence. See Id. § 404.1527(d)(3)-(4); see also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158, 1160 (11th Cir. 2004) (holding that the ALJ did not err in relying on a consulting physician's opinion where it was consistent with the medical evidence and findings of the examining physician). Generally, the more consistent a physician's opinion is with the record as a whole, the more weight an ALJ should place on that opinion. 20 C.F.R. § 404.1527(d)(4).

Jarrett v. Comm'r of Soc. Sec., 422 F. App'x 869, 873 (11th Cir. 2011).[7]

         If an ALJ has shown good cause to reject the opinion of a treating or examining physician, the ALJ may then properly rely on the opinion of a non-examining medical source if it is consistent with the objective evidence of record. See Flowers v. Comm'r of Soc. Sec., 441 F. App'x 735, 743 (11th Cir. Sept. 30, 2011) (per curiam) (unpublished) (“In sum, because the ALJ articulated good cause for discounting the opinions of Flowers's treating and examining doctors and because the consulting doctor's opinion was consistent with the medical record, including the treating and examining doctors's [sic] own clinical findings, the ALJ did not err in giving more weight to the consulting doctor's opinion.”); Davis v. Astrue, Civil Action No. 2:08CV631-SRW, 2010 WL 1381004, at *5 (M.D. Ala. Mar. 31, 2010) (holding that “the ALJ properly assigned ‘great weight' to the opinion a non-examining physician because that opinion was supported by and consistent with the record as a whole[, ] unlike the opinion of plaintiff's treating sources”); Lewis v. Astrue, (S.D. Ala. Nov. 20, 2012) (“[W]here the ALJ has discounted the opinion of an examining source properly, the ALJ may rely on the contrary opinions of non-examining sources); Wainright v. Comm'r of Soc. Sec. Admin., No. 06-15638, 2007 WL 708971, at *10 (11th Cir. Mar. 9, 2007) (per curiam) (holding that the ALJ properly assigned substantial weight to non-examining sources when he rejected examining psychologist's opinion, clearly articulated his reasons for doing so, and the decision was supported by substantial evidence); Osborn v. Barnhart, 194 F. App'x 654, 667 (11th Cir. Aug. 24, 2006) (per curiam) (holding that it was proper for the ALJ to give more weight to the non-examining physician and only minimal weight to the treating physician because the treating physician's opinion was not supported by objective medical evidence); see also SSR 96-6P (S.S.A. July 2, 1996) (“[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, and any explanation for the opinion provided by the State agency medical or psychological consultant or other program physician or psychologist. The adjudicator must also consider all other factors that could have a bearing on the weight to which an opinion is entitled, including any specialization of the State agency medical or psychological consultant. [ ]In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.”).

         Here, Plaintiff argues the ALJ committed reversible error by giving little weight to the opinions of Plaintiff's treating physicians, and greater weight to a non-examining, reviewing physician, and a consultative physician. Particularly, Plaintiff challenges the ALJ's rejection of the opinions of her treating physicians-Dr. Richard Bendinger and Dr. David Ghostley-and the significant weight afforded to the state agency non-examining and consultative physicians-Dr. Richard Whitney and Dr. Arnold Mindingall. As best the undersigned can tell, she raises two specific arguments. First, relying upon Lamb v. Bowen, 847 F.2d 698 (11th Cir. 1986), Plaintiff argues that the opinions of non-examining physicians are entitled to little weight when they are contrary to those of the examining physician. Thus, Plaintiff asserts the ALJ erred when affording Dr. Whitney significant weight and Dr. Bendinger little weight because the opinion of Dr. Whitney was contrary to that of Dr. Bendinger. Second, relying upon Johnson v. Barnhart, 138 F. App'x 266 (11th Cir. 2005), Plaintiff argues that the ALJ had an affirmative duty to further develop the record after she rejected the opinions of Plaintiff's treating physicians. Thus, Plaintiff asserts the ALJ erred by relying upon the opinions of the non-examining physicians to determine whether Plaintiff is disabled.

         Dr. Bendinger's Opinion

         On December 10, 2014, Dr. Bendinger, Plaintiff's treating physician, completed a Medical Source Statement (“MSS”) in which he opined that Plaintiff could lift five pounds occasionally, one pound frequently, and could sit, stand, and/or walk for one hour during an eight-hour workday. Tr. 578. He also opined that Plaintiff would require at least a one-hour break in addition to a morning, lunch, and afternoon break. Tr. 578. He concluded that Plaintiff could rarely push and pull, climb and balance, bend and stoop, or reach, but could occasionally perform manipulations, such as grasping, twisting, and handling. Tr. 578. He found Plaintiff rarely able to operate a motor vehicle or work with or around hazardous machinery, and noted that she should not be exposed to dust, fumes, gases, extreme temperatures, humidity, or other pollutants because of her asthma. Tr. 578. Dr. Bendinger opined that Plaintiff would be absent more than four days per month due to chronic back pain as a result of degenerative disc disease. Tr. 579.

         The ALJ afforded Dr. Bendinger's opinion “little weight.” Tr. 20. In so doing, the ALJ provided the following reasoning:

Dr. Bendinger's opinions are largely inconsistent with the medical evidence of record as a whole. Although the claimant has been treated for the impairments to which he referred in his statement, physical examinations and laboratory findings ...

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