United States District Court, M.D. Alabama, Southern Division
JENNIFER W. ETHRIDGE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM OPINION 
WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE.
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”). 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.
STANDARD OF REVIEW
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
42 U.S.C. § 423(d)(1)(A).
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
(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.
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.
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 (“grids”) or call a
vocational expert (“VE”). Id. at
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.
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.
[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).
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.
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.
Whether the ALJ Erred in Affording Plaintiff's Examining
Physicians Little Weight and Greater Weight to the
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
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
(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
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.
Jarrett v. Comm'r of Soc. Sec., 422 F. App'x
869, 873 (11th Cir. 2011).
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.”).
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.
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.
afforded Dr. Bendinger's opinion “little
weight.” Tr. 20. In so doing, the ALJ provided the
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 ...