United States District Court, N.D. Alabama, Middle Division
MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE
plaintiff, Kenneth George, appeals from the decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying his application for a
period of disability, disability insurance benefits
(“DIB”), and Supplemental Security Income
(“SSI”). The plaintiff timely pursued and
exhausted his administrative remedies, and the decision of
the Commissioner is ripe for review pursuant to 42 U.S.C.
§§ 405(g), 1383(c)(3). The parties have consented
to the exercise of dispositive jurisdiction by a Magistrate
Judge pursuant to 28 U.S.C. § 636(c). (Doc. 9).
George was 47 years old on the date of the ALJ's opinion,
which occurred on March 10, 2015. (Tr. at 70, 151). Although
he was in special education classes, he completed the twelfth
grade. (Tr. 195, 320). His past work experience includes
employment as a painter, live chicken hanger, oil changer,
groundskeeper/tractor operator, janitor/maintenance, and tire
thrower. (Tr. at 37, 195, 202). Mr. George claims that he
became disabled on January 1, 2013, due to back problems,
high blood pressure, and headaches. (Tr. at 44).
evaluating the disability of individuals over the age of
eighteen, the regulations prescribe a five-step sequential
evaluation process. See 20 C.F.R. §§
404.1520, 416.920; see also Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001). The first step requires a
determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, the claimant
is not disabled and the evaluation stops. (Id.) If
he is not, the Commissioner next considers the effect of all
of the physical and mental impairments combined. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational
requirements before a claimant will be found to be disabled.
(Id.) The decision depends on the medical evidence
in the record. See Hart v. Finch, 440 F.2d 1340,
1341 (5th Cir. 1971). If the claimant's impairments are
not severe, the analysis stops. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the
analysis continues to step three, which is a determination of
whether the claimant's impairments meet or equal the
severity of an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
claimant's impairments fall within this category, he will
be found disabled without further consideration.
(Id.) If they do not, a determination of the
claimant's residual functional capacity will be made and
the analysis proceeds to the fourth step. 20 C.F.R.
§§ 404.1520(e), 416.920(e). Residual functional
capacity (“RFC”) is an assessment, based on all
relevant evidence, of a claimant's remaining ability to
do work despite his or her impairments. 20 C.F.R. §
fourth step requires a determination of whether the
claimant's impairments prevent him or her from returning
to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can
still do his or her past relevant work, the claimant is not
disabled and the evaluation stops. (Id.) If the
claimant cannot do past relevant work, then the analysis
proceeds to the fifth step. (Id.) Step five requires
the court to consider the claimant's RFC, as well as the
claimant's age, education, and past work experience, in
order to determine if he or she can do other work. 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the
claimant can do other work, the claimant is not disabled.
(Id.) The burden is on the Commissioner to
demonstrate that other jobs exist which the claimant can
perform; and, once that burden is met, the claimant must
prove his or her inability to perform those jobs in order to
be found disabled. Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999).
the sequential evaluation process, the ALJ found that Mr.
George was insured through March 31, 2016. (Tr. at 75). He
further determined that Mr. George has not engaged in
substantial gainful activity since the alleged onset of his
disability. (Id.) According to the ALJ, Mr. George
has the following impairments that are considered
“severe” based on the requirements set forth in
the regulations: lumbar degenerative disc disease, obesity,
hypertension, osteoarthritis, mood disorder, and reading and
math disorder. (Id.) However, he found that these
impairments neither meet nor medically equal any of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (20 CFR §§ 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926). (Tr. at 76). The ALJ did
not find Mr. George's allegations entirely credible (Tr.
at 79), and he determined that he has the following residual
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a) with no right side foot
control operation and no climbing of ladders, ropes or
scaffolds. He is precluded from commercial driving and from
exposure to hazardous or moving machinery, unprotected
heights, and uneven terrain. He can sustain no more than
occasional climbing of ramps or stairs, balancing, stooping,
kneeling, crouching and crawling. He requires a handheld
device for ambulation, balancing and standing. He needs work
that requires no more than the understanding, remembering and
carrying out of simple instructions. That activity can be
sustained for two hours at a time and with mid-morning, lunch
and mid-afternoon breaks, can be sustained over an eight-hour
day. The work should require no more than occasional changes
in the work setting and no more than occasional interaction
with the public, co-workers and supervisors.
(Tr. at 78).
to the ALJ, Mr. George is unable to perform any of his past
relevant work, he is a “younger individual, ” and
he has “at least a high school education, ” as
those terms are defined by the regulations. (Tr. at 83-84).
He determined that “[t]ransferability of job skills is
not material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a
finding that the claimant is ‘not disabled, '
whether or not he has transferable job skills.” (Tr. at
84). The ALJ found that Mr. George has the residual
functional capacity to perform sedentary “jobs that
exist in significant numbers in the national economy.”
(Id.). Even though additional limitations impede Mr.
George's “residual functional capacity to perform
the full range of sedentary work, ” the ALJ determined
that Mr. George “would be able to perform the
requirements of representative sedentary, unskilled
occupations with an SVP of 2, such as . . . table worker, . .
. assembler, . . . .and as a[n] inspector.” (Tr. at
84-85). The ALJ concluded his findings by stating that Mr.
George “has not been under a disability, as defined in
the Social Security Act, from January 1, 2013, through the
date of this decision.” (Id.)
Standard of Review
Court's role in reviewing claims brought under the Social
Security Act is a narrow one. The scope of its review is
limited to determining (1) whether there is substantial
evidence in the record as a whole to support the findings of
the Commissioner, and (2) whether the correct legal standards
were applied. See Richardson v. Perales, 402 U.S.
389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The Court approaches the factual
findings of the Commissioner with deference, but applies
close scrutiny to the legal conclusions. See Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court
may not decide facts, weigh evidence, or substitute its
judgment for that of the Commissioner. (Id.)
“The substantial evidence standard permits
administrative decision makers to act with considerable
latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent
an administrative agency's finding from being supported
by substantial evidence.'” Parker v.
Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J.,
dissenting) (quoting Consolo v. Federal Mar.
Comm'n, 383 U.S. 607, 620 (1966)). Indeed, even if
this Court finds that the evidence preponderates against the
Commissioner's decision, the Court must affirm if the
decision is supported by substantial evidence.
Miles, 84 F.3d at 1400. No decision is automatic,
however, for “despite this deferential standard [for
review of claims] it is imperative that the Court scrutinize
the record in its entirety to determine the reasonableness of
the decision reached.” Bridges v. Bowen, 815
F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply
the correct legal standards is grounds for reversal. See
Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
court must keep in mind that opinions such as whether a
claimant is disabled, the nature and extent of a
claimant's residual functional capacity, and the
application of vocational factors “are not medical
opinions, . . . but are, instead, opinions on issues reserved
to the commissioner because they are administrative findings
that are dispositive of a case; i.e., that would direct the
determination or decision of disability.” 20 C.F.R.
§§ 404.1527(e), 416.927(d). Whether the plaintiff
meets the listing and is qualified for Social Security
disability benefits is a question reserved for the ALJ, and
the court “may not decide facts anew, reweigh the
evidence, or substitute [its] judgment for that of the
Commissioner.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005). Thus, even if the court were to
disagree with the ALJ about the significance of certain
facts, the court has no power to reverse that finding as long
as there is substantial evidence in the record supporting it.
George argues that the Commissioner's decision should be
overturned for five reasons. First, he contends that the ALJ
failed to accord proper weight to the opinions of Dr. Nichols
and Dr. Estock, consulting physicians for the Commissioner.
Second, he asserts that the ALJ failed to adequately consider
Mr. George's testimony concerning the side effects of his
pain medication. Third, he contends that the ALJ's
conclusion that Mr. George retains the RFC to perform
sedentary work is not supported by substantial evidence and
that the RFC violates SSR 96-8p. Fourth, he maintains that
the case should be remanded because the ALJ failed to assess
the intensity and persistence of Mr. George's symptoms
pursuant to SSR 16-3p. Finally, he argues that the Appeals
Council failed to show that it had adequately evaluated the
newly submitted evidence.
Consideration of Dr. Nichols and Dr. Estock's
prevailing law, a treating physician's testimony is
entitled to “substantial or considerable weight unless
‘good cause' is shown to the contrary.”
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155,
1159 (11th Cir. 1997) (internal quotations omitted). The
weight to be afforded a medical opinion regarding the nature
and severity of a claimant's impairments depends, among
other things, upon the examining and treating relationship
the medical source had with the claimant, the evidence the
medical source presents to support the opinion, how
consistent the opinion is with the record as a whole, and the
specialty of the medical source. See 20 C.F.R.
§§ 404.1527(d), 416.927(d). “Good
cause” exists for an ALJ to not give a treating
physician's opinion substantial weight when the
“(1) treating physician's opinion was not bolstered
by the evidence; (2) evidence supported a contrary finding;
or (3) . . . was conclusory or inconsistent with the
doctor's own medical records.” Phillips v.
Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) citing
Lewis, 125 F.3d at 1440; see also Edwards v.
Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding
that “good cause” exists where the opinion was
contradicted by other notations in the physician's own
course, neither Dr. Nichols nor Dr. Estock was
plaintiff's treating physician. The great weight
ordinarily accorded the opinions of the claimant's
treating physician simply does not extend to them. Dr.
Nichols performed a consultation based upon an examination,
while Dr. Estock was a non-examining consultant. “The
opinions of nonexamining, reviewing physicians… when
contrary to those of the examining physicians, are entitled
to little weight, and standing alone do not constitute
substantial evidence.” Sharfarz v. Bowen, 825
F.2d 278, 280 (11th Cir. 1987) (citing Spencer ex rel.
Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir.1985)
such as whether a claimant is disabled, the claimant's
residual functional capacity, and the application of
vocational factors “are not medical opinions, . . . but
are, instead, opinions on issues reserved to the
Commissioner;” thus the court “may not decide
facts anew, reweigh the evidence, or substitute [its]
judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The
court instead looks to the doctors' evaluations of the
claimant's condition and the medical consequences
thereof, not their opinions of the legal consequences of his
[or her] condition.” Lewis, 125 F.3d at 1440.
See also 20 C.F.R. § 404.1527(d)(1)(“A
statement by a medical source that you are
‘disabled' or ‘unable to work' does not
mean that we will determine that you are disabled.”).
Such statements by a physician are relevant to the ALJ's
findings, but they are not determinative, because it is the
ALJ who bears the responsibility of assessing a
claimant's residual functional capacity. See,
e.g., 20 C.F.R. § 404.1546(c).
The Weight Given to Dr. Nichols
George argues that the ALJ failed to accord proper weight to
the opinion of Dr. June Nichols, an examining medical
consultant. According to the ALJ, during his consultation
with Dr. Nichols, Mr. George “reported that he no
longer felt like doing things and that his wife had to help
him with things such as bathing and driving him where he
needed to go.” (Tr. at 81). Dr. Nichols noted that Mr.
George's “affect was within normal limits with only
situational anxiety [present]. His mood was mildly
depressed.” (Tr. at 320). She further noted that he had
difficulty with sleeping and that he was fully oriented. (Tr.
at 320-21). However, Mr. George “was unable to compute
Serial Sevens or Serial Threes.” (Tr. at 321). He could
not do multiplication problems, but he could “calculate
simple addition and subtraction” problems.
(Id.). His “recent and remote memory functions
appeared mildly impaired, ” although his “[f]und
of information was fair.” (Id.). His thought
processes and thought content were normal. (Id.).
Dr. Nichols further concluded that Mr. George likely
“functions in the low-average range of intellectual
ability.” (Id.). She diagnosed Mr. George with
“mood disorder directly related to medical condition,
depression[;]” “alcohol abuse in
remission[;]” “reading disorder[;]” and
“disorder of mathematics.” (Id.).
Additionally, she diagnosed Mr. George with high blood
pressure, stomach ulcers, chronic migraines, chronic back
pain, and insomnia. (Tr. at 322). She assigned Mr. George a
global assessment of functioning score of 55. (Id.).
concluded, however, that “the opinion of Dr. Nichols is
given only some weight.” (Tr. at 81). The ALJ found
that Mr. George had “failed to seek formal mental
health treatment[, ] . . . ha[d] not made any significant
complaints of mental health symptoms to his treating
physicians[, ] . . . [and] ha[d] not been prescribed any
psychotropic medications.” (Id.).
Additionally, the ALJ noted that, “[w]hile he testified
at the hearing to anxiety and some problems focusing, [Mr.
George] also testified that he still is not taking any
medications for his alleged mental health symptoms.”
record makes clear that not one of Mr. George's treating
physicians has ever concluded that Mr. George suffered from
mental health symptoms. In fact, the record is replete with
examples to the contrary, where the attending medical
professional noted that Mr. George was “Negative for
anxiety and depression” during office visits ranging
from January 23, 2013 to September 12, 2014 (Tr. at 293, 297,
304, 334, 343, 348, 353, 358). Additionally, Dr. Jimmy
Oguntuyo found Mr. George's psychiatric system
“within normal limits” on four different visits
between September 9, 2014, and November 18, 2014. (Tr. at
364, 368, 382, 388). The ALJ articulated reasons for giving
less than controlling weight to Dr. Nichols' conclusions,
given Mr. George's failure to complain of mental health
symptoms to his treating physicians and to seek treatment.
Dr. Nichols' diagnosis simply was not bolstered by the
other evidence in the record. Accordingly, the ALJ had good
cause for giving Dr. Nichols' diagnosis “little
The Weight Given to Dr. Estock
George further argues that the ALJ failed to accord proper
weight to the opinion of Dr. Robert Estock, a non-examining
consultative physician. Dr. Estock reported that Mr. George
had “moderate” limitations in a few categories of
his mental functioning. However, Dr. Estock ultimately
determined that Mr. George was capable of understanding,
remembering, and carrying “out short and simple
instructions[;]” attending and concentrating for
“2 hour periods on simple tasks with customary breaks
and rest during the ...