United States District Court, N.D. Alabama, Middle Division
MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.
plaintiff, Richard Martin Dean, appeals from the decision of
the Commissioner of the Social Security Administration
(“Commissioner”) denying his application for a
period of disability and Disability Insurance Benefits
(“DIB”). Mr. Dean 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. 17).
plaintiff was 38 years old on the date of the ALJ's
opinion. (Tr. at 55). His past work experience includes
employment as a ranch hand, truck driver, and materials
handler. (Tr. at 58). The plaintiff claims that he became
disabled on July 6, 2011, due to chronic shoulder pain, high
blood pressure, decreased range of motion in left shoulder,
respiratory problems, and mental problems. (Tr. at 20, 24).
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 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 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 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; once that burden is
met, the claimant must prove his 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 the
plaintiff last met the insured status requirements of the
Social Security Act on March 31, 2014. (Tr. at 21). He
further determined that the plaintiff did not engage in
substantial gainful activity from the onset date of July 6,
2011, through March 31, 2014, when plaintiff was last
insured. Id. According to the ALJ, the plaintiff has
the following impairments that are considered
“severe” based on the requirements set forth in
the regulations: “panic disorder; major depression
disorder, recurrent; cannabis abuse; bilateral carpal tunnel;
chronic airway obstruction, NOS; history of polysubstance abuse;
degenerative joint disease of the shoulders; status post left
shoulder superior glenoid labrum lesion (“SLAP”)
repair; and, history of minimal distal acromial impingement
on rotator cuff, right shoulder.” Id. He also
determined that the plaintiff's hyperlipidemia and
hypertension are non-severe. Id. He determined that
the plaintiff's chronic obstructive pulmonary disease
“COPD” and restless leg syndrome were not
supported by evidence of a medically determinable physical or
mental condition (Tr. at 22). The ALJ found that the
plaintiff's severe and non-severe impairments, separately
and in combination, neither meet nor medically equal any of
the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id. The ALJ found the plaintiff to have
moderate restriction in activities of daily life, moderate
difficulties in social functioning, and moderate difficulties
with regard to concentration. (Tr. at 23). The ALJ determined
that the plaintiff has the residual functional capacity to
perform work at a light level of exertion as defined in 20
CFR 404.1567(b), except that he could use bilateral hand
controls on occasion. Id. The ALJ further
He can occasionally reach overhead with his left non-dominant
hand but can frequently reach overhead with his right
dominant hand. He can occasionally reach in all other
directions with his left non-dominant hand but can frequently
reach in all other directions with his right dominant hand.
He can frequently hand, finger, and feel bilaterally. He can
occasionally climb ramps and stairs but never climb ladders
or scaffolds. He can occasionally crouch but never crawl. He
should never be exposed to unprotected heights, dangerous
machinery, dangerous tools, hazardous processes or operate
commercial vehicles. He would be limited to routine and
repetitive tasks and simple work-related decisions. He would
be unable to perform at a production rate pace but could
perform other goal oriented work. He should have no more than
occasional interaction with the general public but could have
frequent interaction with co-workers and supervisors. He
would be able to accept constructive non-confrontational
criticism, work in small group settings and be able to accept
changes in the work place setting if introduced gradually and
infrequently. In addition to normal breaks, he would be
off-task approximately five percent of an eight-hour workday,
in non-consecutive minutes.
(Tr. at 24).
to the ALJ, the plaintiff is unable to perform any of his
past relevant work, he is a “younger individual,
” and has “at least a high school education,
” as those terms are defined by the regulations. (Tr.
at 33). 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 the claimant has transferable
job skills.” Id. Even though the plaintiff
cannot perform the full range of light work, the ALJ
determined that there are a significant number of jobs in the
national economy that he is capable of performing, such as
price marker, surveillance system monitor, and final
assembler of optical goods. (Tr. at 34). The ALJ concluded
his findings by stating that Plaintiff “has not been
under a disability, as defined in the Social Security Act,
from July 6, 2011, through March 31, 2014, the date last
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.
Dean argues that the ALJ's decision should be remanded
for any of eight reasons. (Doc. 10, p. 2). First, he contends
that the ALJ, without good cause, afforded only “some
weight” to the opinions of Dr. Adam Alterman, who is
the plaintiff's treating physician. Id. Second,
plaintiff asserts that the ALJ substituted his own opinion
for that of a medical provider when he failed to give
sufficient weight to the opinion of examining psychologist
Dr. David Wilson. Id. The third error claimed by the
plaintiff is that the ALJ did not accord proper weight to Dr.
Iyer's opinion. Id. Fourth, Mr. Dean argues that
he meets the criteria for Listing 12.04 and/or 12.06, and
thus would be disabled. Id. Fifth, plaintiff alleges
that the ALJ improperly drew negative inferences from his
lack of medical treatment. Id. Sixth, plaintiff
claims that the ALJ's RFC finding is conclusory,
violative of SSR-96-8a, and not supported by substantial
evidence. Id. The plaintiff's seventh claim of
error is that the ALJ failed to give reasons why he found the
plaintiff not credible. Id. Eighth, Dean claims that
the ALJ did not adequately develop the record regarding his
medications and the side effects of that medication.
Id. The addresses each of these in turn.
Dr. Adam Alterman
plaintiff first argues that the ALJ failed to give the
opinion of his treating physician, Dr. Adam Alterman,
sufficient weight and failed to articulate good cause for
doing so. (Doc. 10, pp. 19-20). The Commissioner argues that
the ALJ's articulated reasons demonstrate good cause for
only giving “some weight to the opinions of Dr. Adam
Alterman” despite his treatment of plaintiff. (Doc. 13,
p. 6). The ALJ stated that Dr. Alterman's opinion was not
entitled to substantial or controlling weight because: (1)
“his own longitudinal record does not support many of
his conclusions, ” (2) he was not treating the
plaintiff in 2011, when the disability allegedly began, and
thus, cannot provide any information about plaintiff's
condition at that time, (3) his opinion fails to account for
the plaintiff's ability to work as a truck driver during
the time he was diagnosed as having crippling limitations,
and (4) his opinions about the plaintiff's mental
limitations in terms of attention and concentration are
without foundation in the medical reports. (Tr. at 32).
treating physician's testimony is entitled to
“substantial or considerable weight unless ‘good
cause' is shown to the contrary.” Crawford v.
Commissioner of Social Security, 363 F.3d 1155, 1159
(11th Cir. 2004) (quoting Lewis v. Callahan, 125
F.3d 1436, 1440 (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).
Furthermore, “good cause” exists for an ALJ not
to 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) 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) (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” existed where the opinion was contradicted by
other notations in the physician's own record).
Court must also be aware of the fact that opinions 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
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). The Court is interested in 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. Such
statements by a physician are relevant to the ALJ's
findings, but they are not determinative, as it is the ALJ
who bears the responsibility for assessing a claimant's
residual functional capacity. See, e.g., 20 C.F.R.
2014 Clinical Assessment of Pain (Tr. 389), Dr. Alterman
opined that plaintiff (1) could sit for eight hours, (2)
could stand for one hour, (3) could walk for less than 30
minutes, (4) would need to lie down, sleep, or prop up his
legs for five out of eight day time hours, (5) could perform
a task without a break for less than 30 minutes, and (6)
could maintain attention and concentration for less than 15
minutes. (Tr. at 391). Dr. Alterman also opined that the
limitations dated to July 6, 2011, when plaintiff alleges he
became disabled. Id. The ALJ afforded these opinions
“some weight.” (Tr. at 32).
Commissioner has pointed out that Dr. Alterman's
treatment notes from 2012 to 2014 demonstrate some
limitations in the plaintiff's use of his shoulders,
including a finding of reduced range of motion in January
2012, improved strength and range of motion in March 2012,
new aching pain in July 2012, and crepitus and tenderness
with palpation in 2014. (Doc. 13, p. 7). However, Dr.
Alterman's records do not support his opinion that
plaintiff is limited in his ability to sit or stand.
Id. There is no reference in his treatment notes
whatsoever that Mr. Dean is unable to stand or walk. (Tr. at
pp. 342-383). Further, even as to Mr. Dean's shoulder
pain, which on some occasions Dr. Alterman found tenderness
and/or limited range of motion (Tr. at pp. 349, 352, 354,
356, 358, 367, and 370), his treatment notes repeatedly
recorded that the plaintiff's neurological examination
found “motor strength normal upper and lower
extremities.” (Tr. at pp. 358, 361, 364, 367, 370, 374,
and 379). Additionally, the claimant testified at the hearing
before the ALJ that he could use his right arm above his
head, could lift a gallon of milk with his right arm, and can
use his left arm for tasks at or below eye level. (Tr. at pp.
Dr. Alterman noted that the claimant had generalized anxiety
disorder, he was treated successfully with medication.
Indeed, in treatment notes dated August 19, 2013, there is no
mention at all of anxiety or depression. (Tr. at pp.
377-380). Therefore, the mental limitations that Dr. Alterman
opined to exist in 2014 were not supported by his own
treatment notes. Id. Additionally, Mr. Dean
testified that while he has problems with short-term memory,
he has no problems following instructions or making
decisions. (Tr. at pp. 71-72).
court finds that there was “good cause” for the
ALJ's decision to afford the opinion of Dr. Adam Alterman
“some weight.” As an initial matter, Dr. Alterman
was not treating the patient in 2011. (Tr. at 342). Thus, the
opinion that plaintiff's disabling limitations dated to
2011 is not based on his diagnosis as a treating physician.
Id. Additionally, Dr. Alterman's medical records
and progress notes do not support his assertion that
plaintiff is limited in his capacity to sit, stand, or walk,
or that plaintiff would need to lie down or otherwise rest
for five out of eight daytime hours. (Tr. at 342-82).
Plaintiff's complaints most commonly relate to shoulder
pain. See, e.g., id. at 342, 353-4, 356, 359, 361.
In fact, Mr. Dean only reported musculoskeletal pain, other
than that in his shoulders, on his first visit with Dr.
Alterman on January 27, 2012, and on August 19, 2013. (Tr. at
342, 377). Plaintiff was diagnosed with restless leg syndrome
on April 22, 2013. (Tr. at 365). However, the court finds no
testing or other examination that resulted in this diagnosis,
nor does it appear that the diagnosis was the result of any
new complaint of the plaintiff because the purpose of this
visit was a four week follow- up. Id. Therefore, the
court can find nothing in the medical records to support this
diagnosis or indicate that it is severely limiting or affects
plaintiff's ability to sit, stand, or walk. Id.
at 365, 367, 370-1, 374, 377, 382. Additionally, the
plaintiff reported ankle pain on August 19, 2013, but, on
November 15, 2013, he no longer reported the pain.
Id. at 377, 382. The court can find no support in
the records for the opinion that plaintiff had disabling
physical limitations except with regard to his shoulders.
Dr. Alterman never diagnosed the plaintiff with a condition
or referred him to treatment for a condition that would
explain his opinion that plaintiff had such serious
limitations in his ability to concentrate or maintain
attention. See id. at 342-82. On February 6, 2012,
Mr. Dean saw Dr. Alterman, and his primary complaint at that
visit was anxiety. (Tr. at 346). Plaintiff was started on
Clonazepam and Paroxetine Hydrochloride. After starting these
medications, plaintiff did not complain of further issues.
Dr. Alterman either noted that plaintiff was
“negative” for psychiatric problems; oriented to
person, place, and time; or no remarks or notations were made
about his psychiatric issues. See id. at 342-82. The
court agrees with the ALJ that many of Dr. Alterman's
findings appear to be wholly incongruous with the
doctor's treatment notes. The court also has confirmed
that the patient did not establish care with Dr. Alterman
until 2012. (Tr. at 342). Therefore, good cause exists to
afford lesser weight to this opinion than is normally
afforded to a treating physician.
addressed previously, the ALJ must consider several factors
in determining the weight to be given to a medical opinion.
20 C.F.R. § 404.1527(c). Different types of medical
sources are entitled to differing weights. The opinion of a
treating physician, who has an ongoing relationship with the
patient, is entitled to the greatest weight. 20 C.F.R. §
404.1502. A non-treating physician or psychologist, who has
examined the patient but does not treat the patient, is
entitled to less weight. Id. The least weight is
given to a non-examining medical source, who may provide an
opinion based on the record but who has not examined the
patient. Id. Even so, any medical source's
opinion can be rejected where the evidence supports a
contrary conclusion. See, e.g., McCloud v.
Barnhart, 166 Fed. App'x 410, 418-19 (11th Cir.
Dr. David Wilson
gave little weight to the opinion of Dr. David Wilson. (Tr.
at 32). Plaintiff asserts that this is reversible error
because the ALJ has substituted his opinion for the opinion
of the medical expert. (Doc. 10, p. 23). The Commissioner
argues that the ALJ's decision to afford little weight to
the 2015 opinion of Dr. Wilson was supported by substantial
evidence. (Doc. 13, pp. 9-10). The ALJ gave the following
explanation for his decision to afford little weight to the
opinion of Dr. Wilson:
The undersigned afforded little weight to the opinions of Dr.
Wilson as seen in Exhibit 13F, as only two of the records
provided to him existed prior to 2014; the claimant was not
taking any medication at the time of his examination unlike
his past history of reported compliance; his opinions, in any
event, are wholly inconsistent with the great weight of the
medical evidence of record, which does not reveal the
presence of such persistently serious limitations.
(Tr. at 35).
Wilson was not a treating physician, so his opinion was not
entitled to the greatest weight unless it was bolstered by
the evidence. See 20 C.F.R. § 404.1502. Dr.
Wilson reviewed medical records from Doctor's Medical
Care of Gadsden, Rainbow Healthcare, Riverview Regional
Medical Center, Jack Bentley PhD, Marshall Medical Center
South, and Dr. Kevin Lackey. (Tr. at 484). Only two of these
records, Doctor's Medical Care of Gadsden and Rainbow
Healthcare, relate to plaintiff's treatment before March
31, 2014, when plaintiff last met the insured status
requirements. Id. Plaintiff drove himself to his
appointment with Dr. Wilson, arrived on time, and was dressed
appropriately. Id. at 487-8. Plaintiff's
“thought processes were intact, ” “his
speech was clear and normal in rate, ” and “he
was cooperative and respectful.” Id. at 488.
He reported anxiety attacks and depression, but also stated
that those were helped by Klonopin. Id. Plaintiff
reported he was not currently taking the Klonopin or the
Wilson described the plaintiff as having “very poor
mental control and attention, ” “problems with
short term and working memory, ” and a prorated Verbal
Comprehension Index of 90. Id. On a Mental Health
Source Statement, Dr. Wilson opined that the plaintiff would
miss 30 out of 30 days of work due to his psychological
symptoms. Id. at 490. Dr. Wilson also opined that
these limitations dated back to July 6, 2011. Id.
only way that Dr. Wilson could have determined that
plaintiff's disabling limitations dated to 2011 is
through his review of the records since his evaluation did
not occur until 2015. (Tr. at 484). However, those records do
not support a finding of such severe mental impairment. As
discussed supra, plaintiff reported depression and
anxiety to Dr. Alterman in 2012 and 2013, was given
psychiatric medications, and had minimal complaints after
that. (Tr. at 342-82). The records from Doctor's Medical
Care of Gadsden show that plaintiff complained of depression
in 2010, but by 2011, plaintiff no longer complained of the
depression. (Tr. at 325-6).
the court agrees that Dr. Wilson was unable to obtain an
accurate assessment of plaintiff's mental limitations
since the plaintiff was not taking his medication at the time
of the assessment. (Tr. at 488). Plaintiff admitted that the
medication significantly improved his anxiety and depression
symptoms. Id. Dr. Wilson's opinion also is
inconsistent with his reports about plaintiff's
condition, orientation, and disposition during the
assessment. Id. at 487-8. The fact that plaintiff
drove himself, arrived on time, was cooperative and
respectful, and was dressed and oriented appropriately
indicates a much higher level of mental functioning than was
described in Dr. Wilson's opinion. Id. As such,
the court finds that the ALJ's decision to afford little
weight to Dr. Wilson's opinion is supported by
substantial evidence in the record, including Dr.
Wilson's own notations made at the assessment.
Dr. Sathyan Iyer
afforded some weight to the medical opinion of Dr. Iyer that
was provided in the Medical Statement Form. (Tr. at 32). The
plaintiff asserts that the ALJ did not afford sufficient
weight to this medical opinion. (Doc. 10, p. 28). The
Commissioner argues that the ALJ decision was supported by
substantial evidence. (Doc. 13, p. 15). The ALJ gave only
some weight to Dr. Iyer's opinion that the plaintiff
could perform only a restricted range of sedentary work. (Tr.
at 32). The ALJ gave the following justifications for his
decision: (1) inconsistencies in the doctor's opinion on
the Medical Statement Form, initial opinion, and objective
findings; (2) inconsistency between his opinion and the great
weight of medical evidence; (3) and that the ALJ believed
that the opinion was based upon the plaintiff's
subjective pain complaints rather than medical diagnosis or
Iyer opined that the plaintiff could occasionally carry or
lift up to 10 pounds, but never carry or lift weights heavier
than 10 pounds. (Tr. at 398). He also opined that the
plaintiff could sit, stand, or walk continuously for one hour
or less and that the plaintiff could sit for four hours,
stand two hours, and walk for two hours in an eight hour work
day. (Tr. at 399). This opinion was dated October 20, 2014,
almost seven months after the date Mr. Dean was last insured
(March 31, 2014). (Tr. at 403). Yet, just two days earlier,
Dr. Iyer completed a physical examination of the plaintiff
and found he had full range of motion and strength in all of
his joints except his shoulders. Id. at 396-7. In a
comment at the end of that examination Dr. Iyer concluded the
following about the plaintiff: “In his current
condition because of the bilateral shoulder problems, he will
have impairment of functions of both upper extremities in
such activities such as pushing, pulling, carrying heavy
weights, and overhead activities. He does not appear to have
any other physical limitation.” Id. at 395.
court finds that there was substantial evidence for the ALJ
to assign only some weight to the opinion of Dr. Iyer. The
ALJ's determination that the opinion was based largely
upon the subjective pain complaints of the plaintiff is
exactly the type of factual conclusion that this court is not
to second guess. Additionally, the court agrees that Dr.
Iyer's opinion is inconsistent with his own findings.
(Tr. at 396-9). The results of his physical examination do
not support a finding that plaintiff is so severely limited
and restricted to sedentary work. In addition to being
inconsistent with his own physical examination, Dr.
Iyer's opinion is inconsistent with plaintiff's
medical records from Dr. Alterman where the plaintiff rarely
had any complaints unrelated to his shoulders. Id.
at 342-82. Further, as noted above, these limitations are
inconsistent with the claimants' testimony at the
ALJ's hearing, where he agreed that he could lift his
right arm above his head, could lift a gallon of milk with
his right arm, and can use his left arm for activities not
involving weight at or below eye level. It is clear to the
court that the ALJ weighed the evidence, noted the
inconsistencies, and decided to assign only “some
weight” to the opinion.
Listings 12.04 and 12.06
did not find that the plaintiff met the criteria for Listing
12.04 or 12.06. (Tr. at 22). The plaintiff
asserts that he meets the criteria for the Listings and for
the ALJ to find otherwise is reversible error. (Doc. 10, p.
30). The Commissioner, on the other hand, contends that the
ALJ's decision that the plaintiff did not meet the
criteria in Listings 12.04 or 12.06 is supported by
substantial evidence. (Doc. 13, p. 20).
burden of proving that he meets or equals a Listing is on the
plaintiff. Davenport v. Astrue, 403 Fed.Appx. 352,
353 (11th Cir. 2010) (citing Barron v. Sullivan, 924
F.2d 227, 229 (11th Cir. 1991). In order to meet a listing, a
plaintiff must meet all of the specific criteria for that
Listing. Sullivan v. Zebley, 493 U.S. 521, 530
(1990). It is not sufficient for plaintiff to demonstrate
that he has an ailment that manifests only a few or even most
of the criteria, even if the ailment manifests those criteria
in an especially severe way. Id. Plaintiff must
carry the burden by presenting evidence of a diagnosis of a
condition covered by the Listings and a treatment history
demonstrating that the durational requirements are met.
Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir.
2002). If plaintiff is instead asserting that he has an
ailment which equals a listing, he must show that the
ailment(s), either singularly or in combination, equal the
Listing in terms of severity. Id.
focused on whether the plaintiff met the requirements of
Paragraph B of the Listings but found that the plaintiff had
at most moderate, not marked or extreme, difficulties in
areas specified and had experienced no episodes of
decompensation of extended duration. (Tr. at 23). Therefore,
the requirements of Paragraph B were not satisfied, and,
accordingly, the plaintiff could not meet the criteria of
either Listing 12.04 or 12.06. Id. The ALJ also
reviewed whether the plaintiff met the requirements of
Paragraph C under each Listing. Id. The ALJ found
that the plaintiff did not meet the requirements because he
had not experienced repeated episodes of decompensation,
there was no residual disease process which would be thought
to result in episodes of decompensation with an increase in
mental demand, and Plaintiff had not shown that he needed a
highly supportive environment or was unable to function
outside of his home. Id.
wife reported that they were married and living together in
2013. (Tr. at 242). Plaintiff reported that he fed, watered,
and bathed his dogs by himself. (Tr. at 227). He reported
that he was able to prepare his own meals, sweep the floors,
dust furniture, wash dishes, do laundry, and make the bed.
(Tr. at 228). Plaintiff reported that he was able to leave
the house alone, was able to drive, and shopped in stores.
(Tr. at 229). He also reported the ability to pay bills,
count change, manage a savings account, and use a checkbook
and money orders. Id. Plaintiff reported physical
limitations and that he “would rather stay at home by
[himself].” (Tr. at 231). Plaintiff's wife reported
that he had no troubles with personal care, needed a reminder
to take his medication, prepared his own foods, performed