McLeod v. Saul (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

ADRIAN MCLEOD, )

)

Plaintiff, )

)

v. ) CASE NO. 1:19-CV-191-KFP

)

ANDREW SAUL,1 )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

I. INTRODUCTION

On April 23, 2015, Plaintiff protectively filed a Title II application for a period of

disability and disability insurance alleging disability beginning February 23, 2015. Doc. 11

at 1. The claim was denied on July 30, 2015. Id. After a hearing before an Administrative

Law Judge (ALJ) on December 9, 2016, and a supplemental hearing on October 6, 2017,

Plaintiff received an unfavorable decision on February 29, 2018. Id. He sought review of

the decision from the Appeals Council, which denied his request. R. 1. Thus, the ALJ’s

decision became a final decision of the Commissioner. See Chester v. Bowen, 792 F.2d

129, 131 (11th Cir. 1986). The case is now before the Court for review of that decision

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

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1 Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a party

pursuant to Fed. R. Civ. Proc. 25(d). See also § 205(g) of the Social Security, 42 U.S.C. § 405(g) (action

survives regardless of any change in the person occupying the office of Commissioner of Social Security).

States Magistrate Judge. Docs. 14 and 15. Based on a review of the record and the briefs

of the parties, the Court finds that the ALJ’s decision was based on substantial evidence

and employed proper legal standards. Accordingly, the Commissioner’s decision is

AFFIRMED.

II. STANDARD OF REVIEW

The Court’s review of the Commissioner’s decision is a limited one. The Court’s

sole function is to determine whether the ALJ’s opinion is supported by substantial

evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d

1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983). “The Social Security Act mandates that ‘findings of the Secretary as to any fact, if

supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,

1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the

Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.

Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla

— i.e., the evidence must do more than merely create a suspicion of the existence of a fact

and must include such relevant evidence as a reasonable person would accept as adequate

to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing

Richardson v. Perales, 402 U.S. 389 (1971)); Foote, 67 F.3d at 1560 (citing Walden v.

Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).

If the Commissioner’s decision is supported by substantial evidence, the district

court will affirm, even if the court would have reached a contrary result as finder of fact

and even if the evidence preponderates against the Commissioner’s findings. Ellison v.

Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584

n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)).

The Court must view the evidence as a whole, taking into account evidence favorable as

well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792

F.2d 129, 131 (11th Cir. 1986). The Court “may not decide facts anew, reweigh the

evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “must

defer to the Commissioner’s decision if it is supported by substantial evidence.” Miles v.

Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth, 703 F.2d at 1239).

The Court will also reverse a Commissioner’s decision on plenary review if the

decision applies incorrect law or if the decision fails to provide the district court with

sufficient reasoning to determine that the Commissioner properly applied the law. Keeton

v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius

v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption that the

Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236

(11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).

III. STATUTORY AND REGULATORY FRAMEWORK

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(a). The Social Security Act’s Supplemental Security Income (SSI) is a separate and

distinct program. SSI is a general public assistance measure providing an additional

resource to the aged, blind, and disabled to assure that their income does not fall below the

poverty line. Eligibility for SSI is based on proof of indigence and disability. See 42 U.S.C.

§§ 1382(a), 1382c(a)(3)(A)–(C). However, despite the fact they are separate programs, the

law and regulations governing a claim for DIB and a claim for SSI are identical; therefore,

claims for DIB and SSI are treated identically for the purpose of determining whether a

claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir. 1986).

Applicants under DIB and SSI must prove “disability” within the meaning of the

Social Security Act, which defines disability in virtually identical language for both

programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§

404.1505(a), 416.905(a). A person is entitled to disability benefits when the person is

unable to do the following:

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), 1382c(a)(3)(A). A “physical or mental impairment” is one

resulting from anatomical, physiological, or psychological abnormalities that are

demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42

U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

The Commissioner of Social Security uses a five-step, sequential evaluation process

to determine if a claimant is entitled to benefits:

(1) Is the person currently unemployed?

(2) Is the person’s impairment(s) severe?

(3) Does the person’s impairment(s) meet or equal one of the specific

impairments set forth in Listing of Impairments in Appendix I of 20 C.F.R.

Pt. 404, Subpt. P?

(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?

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20 C.F.R. §§ 404.1520, 416.920

(2010). An affirmative answer to any question leads either to the next question or, on Steps

3 and 5, to a finding of disability. A negative answer to any question except Step 3 leads

to a determination of not disabled. McDaniel v. Bowen, 800 F.2d at 1030; 20 C.F.R. §

416.920(a)–(f).

The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,

357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of

qualifying for disability once they meet the burden of proof from Step 1 through Step 4. At

Step 5, 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 Steps 4 and 5, the ALJ must first determine the claimant’s Residual

Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still able to do

despite his impairments and is based on all relevant medical and other evidence. Id. It also

can contain both exertional and non-exertional limitations. Id. at 1242–43. At Step 5, 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 hear testimony

from 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.

IV. ADMINISTRATIVE PROCEEDINGS

Following the administrative hearing and employing the five-step process, the ALJ

found at Step One that Plaintiff had engaged in substantial gainful activity that may have

risen to the level of substantial gainful activity after the alleged onset date in February

2015. R. 20. However, the ALJ also found there had been a continuous 12-month period

during which the claimant did not engage in substantial gainful activity. Id. At Step Two,

the ALJ found Plaintiff has the following severe impairments: pancreatitis, bilateral hip

degenerative joint disease, sacroiliitis, peripheral neuropathy, and lumbar curvature with

degenerative endplate changes and osteophytosis. Id. However, at Step 3, the ALJ

concluded that Plaintiff did not have an impairment or combination of impairments that

meets or medically equaled the severity of one of the listed impairments in 20 CFR Part

404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526). Id. at 21.

Because the ALJ found that Plaintiff’s impairments did not meet any of the listings,

he assessed Plaintiff’s residual functional capacity, which he articulated as follows:

[T]he claimant has the residual functional capacity to perform a restricted

range of light work. . . . The claimant can lift and/or carry up to 20 pounds

occasionally and 10 pounds frequently. The claimant can stand and/or walk

four hours, no more than thirty minutes at a time. The claimant can sit six

hours, no more than two hours at a time. The claimant can occasionally push

and/or pull with the upper extremities, bilaterally; and occasionally push

and/or pull with the lower extremities, bilaterally. The claimant can

occasionally balance, occasionally stoop, occasionally kneel, occasionally

crouch, occasionally crawl, and occasionally climb ramps and stairs. The

claimant cannot climb ladders, ropes and scaffolds. The claimant can

frequently reach, bilaterally; frequently handle, bilaterally; continuously

finger, bilaterally; and continuously feel, bilaterally. The claimant can

tolerate occasional exposure to extreme heat; occasional exposure to extreme

cold, occasional exposure to humidity, and occasional exposure to

pulmonary irritants. The claimant must avoid all exposure to unprotected

heights and avoid all exposure to dangerous machinery. The claimant is able

to sustain attention for two-hour periods with customary breaks.

Id. The ALJ stated that he considered all Plaintiff’s symptoms and the extent to which the

symptoms can reasonably be accepted as consistent with the objective medical evidence

and other evidence, based on the requirements of 20 C.F.R. §§ 404.1529 and SSR 16-3p.

Id. at 22. The ALJ also stated that he considered opinion evidence in accordance with 20

C.F.R. §§ 404.1527. Id.

At Step Four, the ALJ found Plaintiff unable to perform any past relevant work as

actually or generally performed. Id. at 26. Next, based on the testimony of a vocational

expert and considering the Plaintiff’s age, education, work experience, and residual

functional capacity, he concluded that the claimant is capable of making a successful

adjustment to other work that exists in significant numbers in the national economy,

specifically the light, unskilled jobs of router, electrical assembler, and cashier II. Id. at 27.

Thus, the ALJ concluded that Plaintiff was not under a disability as defined by the Social

Security Act from February 23, 2015, through the date of his decision. Id.

V. PLAINTIFF’S ARGUMENT

The only issue Plaintiff raises is whether the ALJ erred in assigning “no substantial

weight” to the opinions of Dr. Caudill Miller and Dr. Richard Meadows, two consultative

examining physicians. Doc. 11 at 4. Specifically, he argues the ALJ continued the initial

hearing so Plaintiff could be examined by the additional doctors, “explicitly stat[ing] a

need for further objective testing,” and then “ignore[d] the very objective testing that [he]

previously felt was necessary to determine the case.” Id.

VI. DISCUSSION

At the initial hearing, Plaintiff testified that his daily activities include helping his

mother by cooking, washing dishes, and washing his clothes. R. 54. He makes his bed,

cleans his room, sits around the house, and will “cook dinner or something.” Id. at 55. He

said he does not drive because he cannot get his leg up to mash the foot pedal or brakes.

Id. He testified that he can stand for one hour before having to sit down. Id. He takes pain

pills, but they keep him dizzy and sleepy. Id. He can walk only five minutes before sitting

down because he has emphysema and cannot breathe. Id. at 56. His family doctor in

Newton told him he had emphysema a year and a half earlier. Id. He testified that he has

sharp pain in his feet, which stay numb all the time, and pain shoots up his legs into his

knees. Id. at 57. Plaintiff said his doctor could not figure out the pain in his feet but told

him if he had insurance he could go to a “hospital or something like that,” instead of a

family health clinic. Id. He said he cannot sit for long periods of time because he must keep

moving to prevent the pain. Id. at 58. He will stand for a few minutes and then walk to help

with the pain. Id. He lies down five or six times a day, and, if he gets up, he will walk and

then sit down. Id. at 59. He will get something to eat, walk outside, stretch for a few

minutes, sit down, and then lie down again. Id.

After the testimony regarding pain in his feet, the ALJ stated: “Well, I think what

we’re going to have to do is before we get into our vocational expert testimony is see if we

can nail down some objective . . . evidence related to these complaints. We’ve already got

a PFT in the record, but I’d like to get some . . . lumbar X-rays and a nerve conduction

study . . . of the lower extremities. Because right now, we don’t have a peripheral

neuropathy diagnosis, which is the most likely ideology for the foot complaints. So, I’m

going to send your client out for two consultative evaluations if the Agency will bear it, an

orthopedic and neurological, and then reconvene.” Id. at 61. The ALJ suspected peripheral

neuropathy was the cause of Plaintiff’s foot pain, but there was no objective medical

evidence in the record. Plaintiff was referred to Dr. Caudill Miller, a neurologist, and to

Dr. Richard Meadows, an orthopedist.

A. Dr. Miller’s Opinion

When Plaintiff saw Dr. Miller, he reported having back pain radiating down into his

legs with some numbness and tingling in his legs and feet. Id. at 417. Dr. Miller performed

a nerve conduction velocity test (NCV) and an electromyography (EMG). Id. The EMG

results were normal, and the NCV results were partially normal but showed some evidence

of prolonged terminal latency, slow motor nerve conduction velocities, slow sensory nerve

conduction velocities, and an absent H-reflex bilaterally. Id. According to Dr. Miller, these

results indicated diffuse sensorimotor peripheral neuropathy in his right and left lower

extremities but no radiculopathy. Id.

Dr. Miller also examined the Plaintiff and found that he was in no distress, had

normal cardiological findings, and was neurologically intact. Id. at 430–31. He had full

motor strength in all areas. Id. at 431. Although he had decreased sensory sensation in a

stocking distribution, his gait was normal, and he had a negative straight leg raise test,

negative Patrick sign bilaterally, negative Babinski test bilaterally, and lumbar spine

flexion of 80 degrees. Id. at 430–31.

Dr. Miller completed a medical source statement with limitations, among others, of

sitting for eight hours, only one hour at a time; standing and walking for one hour, only

thirty and fifteen minutes at a time, respectively; lifting and carrying up to ten pounds only

occasionally; using hands for reaching overhead and other directions, handling, fingering,

feeling, pushing, and pulling only occasionally; never climbing ramps and stairs or being

exposed to extreme heat or cold; and working in a quiet (library) setting. Id. at 420–24. He

also found that Plaintiff was capable of shopping, traveling, walking a block on rough or

uneven surfaces, using public transportation, climbing steps at a reasonable pace, preparing

simple meal, caring for personal hygiene, and sorting, handling, and using paper and files.

Id. at 425.

The ALJ determined that Dr. Miller’s restrictions were not consistent with his

examination findings, “especially those involving the upper extremities,” and assigned it

“no substantial weight.” Plaintiff argues this was error because Dr. Miller’s testing, which

indicates “diffuse sensorimotor peripheral neuropathy in the right and lower extremities,”

is the best objective medical evidence of record and that no other medical evidence

contradicts it. Doc. 11 at 7–8.

As a one-time examining physician, the opinion of Dr. Miller is not entitled to

substantial weight. Arnold v. Soc. Sec. Admin., Comm’r, 724 F. App’x 772, 779 (11th Cir.

2018) (citing Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004)

(determining that a one-time examiner’s opinion was not entitled to great weight);

McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (finding that an ALJ need not defer

to the opinion of a physician who conducted a single examination because that physician

is not a treating physician)). Additionally, an ALJ may reject any medical opinion if the

evidence supports a contrary finding. Id. (citing Sryock v. Heckler, 764 F.2d 834, 835 (11th

Cir. 1985)).

In this case, the ALJ’s decision to assign no substantial weight to Dr. Miller’s

opinion is supported by substantial evidence. First, while it is true that no medical evidence

contradicts Dr. Miller’s objective testing and diagnosis of peripheral neuropathy, it is not

the impairment, but the functional limitations affecting the ability to work, that render

someone disabled. Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005) (“To a

large extent, Moore questions the ALJ’s RFC determination based solely on the fact that

she has varus leg instability and shoulder separation. However, the mere existence of these

impairments does not reveal the extent to which they limit her ability to work or undermine

the ALJ’s determination in that regard. See McCruter v. Bowen, 791 F.2d 1544, 1547 (11th

Cir. 1986) (“‘severity’ of a medically ascertained disability must be measured in terms of

its effect upon ability to work”)). To be entitled to disability benefits, Plaintiff must be

unable “to engage in any substantial gainful activity.” 42 U.S.C. § 423(d)(1)(A).

Second, regarding Plaintiff’s upper extremities, there is nothing in Dr. Miller’s

findings or the record to explain his hand limitations on Plaintiff’s reaching, handling,

fingering, or feeling. Plaintiff made no complaints about his upper extremities, Dr. Miller

performed no testing on Plaintiff’s upper extremities, and he made no assessments or

diagnoses with respect to Plaintiff’s upper extremities. The same is true with the limitation

of working in a quiet, library setting. Dr. Miller did not explain any of these restrictions,

and there is no evidence of functional limitations in Plaintiff’s hands, arms, or hearing

ability over the course of his treatment. This total lack of evidence of any problems with

Plaintiff’s upper extremities or hearing supports the decision to assign no substantial

weight to Dr. Miller’s opinion. See Abbington v. Berryhill, No. 1:17-CV-552-N, 2019 WL

938884, at *9 (S.D. Ala. Feb. 26, 2019) (“As for Dr. Harris’s manipulative limitations

opinion, the ALJ expressly noted that Dr. Harris’s report indicated that, while she ‘did not

lace and unlace well,’ Abbington had ‘full range of motion of the elbows, wrists, and all

finger joints[, her] grip and pinch strength was 3/5[, and s]he was able to open and close

doors, button and unbutton, and pick up small objects.’ . . . This is substantial evidence

supporting the ALJ’s decision to only give ‘some’ weight to Dr. Harris’s opinion regarding

manipulative limitations.”)

With respect to the lower extremity restrictions, even though the test results

indicated peripheral neuropathy affecting Plaintiff’s feet, Dr. Miller stated his disability

“[m]ay be more pulmonary and cardiac.” R. 433. Because Dr. Miller did not review

Plaintiff’s previous medical records, the only basis for this conclusion is Plaintiff’s own

reporting of symptoms and medical history.2 Dr. Miller’s conclusion discounts Plaintiff’s

peripheral neuropathy as a disabling impairment and fails to support Dr. Miller’s

limitations on the amount of time Plaintiff can sit, stand, and walk, which are also

contradicted by Dr. Miller’s own opinion that Plaintiff is capable of shopping, traveling,

walking a block on rough or uneven surfaces, using public transportation, and climbing

steps at a reasonable pace.3 These inconsistencies support the ALJ’s decision to assign no

substantial weight to the Dr. Miller’s opinion.

The Court also finds that the ALJ clearly articulated the reasons for the assigned

weight to Dr. Miller’s opinion and that substantial evidence supports that explanation.

Before concluding that the opinion was not supported by Dr. Miller’s examination or the

objective evidence of record, the ALJ noted that Plaintiff’s EMG test was normal for all

muscles in the upper and lower extremities with no evidence of radiculopathy. R. 23. The

ALJ also noted that, while Plaintiff had decreased sensation in the stocking distribution,

Dr. Miller found he was in no obvious distress, he had normal cardiovascular findings and

was neurologically intact, his motor strength in the upper and lower extremities was

normal, his gait was normal, and he had a negative seated straight leg test, a negative

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2 Dr. Miller noted that Plaintiff “has alot of medical problems.” R. 433. Plaintiff reported to Dr. Miller that

he has back pain, hypertension, congestive heart failure, emphysema, asthma, osteoarthritis, and low back

pain. Id. at 427–28. The Court notes that Plaintiff’s cardiac testing has shown normal findings. Id. at 260–-

61, 278–82, 302–05. A chest x-ray in January of 2014 revealed findings of “probable COPD,” but a

pulmonary function test in June 2015 was normal for his age. Id. at 307–11, 350. As for osteoarthritis, x-

rays of Plaintiff’s hips taken by Dr. Meadows revealed only “very subtle osteophyte

formation/osteoarthritis.” Id. at 446–47.

3 Additionally, Dr. Miller’s restriction that Plaintiff can never climb ramps or stairs is inconsistent with his

opinion that Plaintiff can climb steps at a reasonable pace, and his restriction of standing only thirty minutes

at one time is contradicted by Plaintiff’s own testimony at the first hearing: “I can stand probably an hour,

and then I have to sit down. . . .” R. 55.

Patrick sign bilaterally, a negative Babinski test bilaterally, and lumbar spine flexion of 80

degrees. Id. at 24.

Plaintiff relies on a case that is distinguishable from the instant case to support his

argument that the ALJ erred in assigning no substantial weight to Dr. Miller’s opinion. In

King v. Barnhart, 320 F. Supp. 2d 1227, 1232 (N.D. Ala. 2004), the consultative examining

doctor’s findings suggested possible diagnoses of depressive disorder, psychotic disorder,

anxiety disorder, schizophrenic disorder, and schizotypal personality disorder. Id. at 1230.

He said the plaintiff had elements of posttraumatic stress, that she needed treatment, and

that panic attacks kept her from leaving home. Id. at 1231. He diagnosed her with moderate

posttraumatic stress disorder with panic attacks and moderate to severe adjustment disorder

with depressed mood. Id. He said her distress was “rather extreme” and that her

psychological difficulties were a “moderately severe impairment.” Id. He completed a

medical source statement and assessed the plaintiff as “marked” or “extreme” in twelve out

of eighteen areas. Id. The ALJ gave little weight to this opinion because the restrictions

were not supported by medical evidence or the claimant’s alleged symptoms and because

the doctor was not a treating physician. Id. at 1232, n.14. The district court found the ALJ

had erred in ignoring the fact that the doctor was a specialist and ignoring the doctor’s

testing, which was not contradicted by other evidence. Id. at 1233.

Here, while there is no evidence in the record contradicting the diagnosis of

peripheral neuropathy, there is evidence contradicting Dr. Miller’s functional limitations,

including the normal EMG, normal cardiac testing, normal pulmonary function test, Dr.

Miller’s own examination findings, his opinion that Plaintiff’s disability may be more

cardiac and pulmonary, and the findings of Dr. Meadows discussed below. Moreover, the

ALJ’s functional limitations are identical to Dr. Miller’s restrictions on lifting and carrying

up to twenty pounds; pushing and pulling with hands; using feet for operating of foot

controls; balancing, stooping, kneeling, crouching, and crawling; climbing ladders and

scaffolds; being exposed to humidity, wetness, dust, odors and pulmonary irritants; and

exposure to unprotected heights or moving machinery. For activities where the ALJ’s

functional limitations are not identical, they generally align with Dr. Meadows’

restrictions.4 As for the limitations on sitting, standing, and walking, the ALJ did not ignore

the objective testing performed by Dr. Miller. He recognized that Plaintiff’s peripheral

neuropathy is a severe impairment, and he accommodated this impairment with the

limitations of sitting only two hours at a time six hours a day, standing only thirty minutes

at a time four hours a day, and walking only thirty minutes at a time four hours a day.5

Although Plaintiff does not point to a particular functional limitation of Dr. Miller’s that

should have been adopted by the ALJ, the law is well-settled that an RFC “need not be

identical to a medical source statement from a physician, only supported by substantial

evidence. Indeed, a requirement that an ALJ’s RFC finding must be based on a physician’s

medical source statement would confer upon the physician the authority to determine the

RFC, which would abdicate the Commissioner’s statutory responsibility to determine

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4 As explained below, many of Dr. Meadows’ functional limitations are less restrictive than Dr. Miller’s.

5 The ALJ’s limitations on how long the Plaintiff can sit, stand, or walk at one time are more restrictive

than those in Dr. Meadows’ opinion, which Plaintiff also argues was due substantial weight. Dr. Meadows

opined that Plaintiff could sit for three hours at a time (as opposed to two) and stand and walk for one hour

at a time (as opposed to thirty minutes).

whether an individual is disabled.” Driggers v. Astrue, No. 1:12-CV-00272-LSC, 2012 WL

4478963, at *4 (N.D. Ala. Sept. 20, 2012) (citations omitted). Accordingly, the ALJ did

not err in assigning “no substantial weight” to Dr. Miller’s opinion.

B. Dr. Meadows’ Opinion

When Plaintiff saw Dr. Meadows, he found that Plaintiff’s back was tender to

palpitation in the lumbar-sacral spine. R. 436. The seated straight leg raise was negative to

90 degrees with some pain with range of motion in the back and hip, and he toe-walked

and heel-walked poorly. Id. However, he had full range of motion in his spine, hips, knees,

ankles, shoulders, elbows, forearms, and wrists (but pain with the full range of motion in

his hips and knees). Id. at 438–39. He had full grip strength in his arms, good opposition

and oppositional strength in his legs, normal ankle strength, no effusion, no edema, and

normal strength, tone, and reflexes. Id. at 436. He could fully squat and rise without

difficulty, the Romberg test was negative, and the Tinels test caused pain in the wrist but

no paresthesia. Id. Lumbar spine x-rays reflected subtle dextro-convex curvature; no

anteriolisthesis, retrolisthesis, or fractures; and minimal multilevel degenerative end plate

change characterized by subtle marginal osteophyte formation most pronounced along the

superior end plate of L4. Id. at 446. Hip x-rays showed no appreciable osseous abnormality

of the bony pelvis, no acute osseous abnormality, and very subtle osteophyte

formation/osteoarthritis along the superior lateral aspect of the acetabulum. Id. at 447.

Dr. Meadows completed a medical source statement with the following functional

limitations, among others: lifting and carrying up to 50 pounds occasionally; sitting for six

hours, three hours at a time; standing for two hours, one hour at a time; walking for two

hours, one hour at a time; climbing ladders or scaffolds occasionally, frequent exposure to

extreme heat and cold; frequent exposure to humidity and wetness, dust, odor, and

pulmonary irritants, occasional exposure to unprotected heights or moving mechanical

parts; and the ability to work in a very loud (jackhammer) setting. Additionally, like Dr.

Miller, Dr. Meadows opined that Plaintiff could shop, travel, walk a block on rough or

uneven surfaces, use public transportation, and climb steps at a reasonable pace.

The ALJ determined that Dr. Meadows’ opinion was inconsistent with the medical

evidence of record reflecting Plaintiff’s history of minimal, conservative treatment with

generally mild objective findings and normal examinations, and he assigned it “no

substantial weight.” Plaintiff argues this determination was “clearly errant when one

considers the outcome of the two consultative examinations that the ALJ felt necessary to

properly consider the case.” Again, however, as with Dr. Miller, Dr. Meadows’ opinion as

a one-time examining physician is not entitled substantial weight, and an ALJ may reject

it if the evidence supports a contrary finding.

The Court finds that the ALJ’s decision to assign no substantial weight to Dr.

Meadows is supported by substantial evidence. With regard to the outcomes of the two

consultative examinations, they include a nerve conduction study indicating peripheral

neuropathy and x-rays reflecting only “minimal” and “subtle” findings. Further, although

Dr. Meadows found Plaintiff’s back was tender to palpitation, he had some pain with the

seated straight leg raise test and full range of motion in his hips and knees, and he toe-

walked and heel-walked poorly, all other findings were normal, including full range of

motion in all areas tested, full upper and lower body strength, the ability to squat without

difficulty, and normal tone and reflexes. Therefore, the Court is not persuaded that the

outcome of the two consultative examinations demonstrates that the ALJ’s determination

was “clearly errant.”

Additionally, the ALJ clearly articulated why he assigned no substantial weight to

Dr. Meadows’ opinion, and substantial evidence supports that explanation. The ALJ stated

that the opinion was not consistent with Plaintiff’s minimal, conservative treatment history

and generally mild objective findings and normal examinations. R. 25. In his decision, the

ALJ detailed the examination findings of Dr. Miller and Dr. Meadows described above. Id.

at 24. He also noted that Plaintiff has been generally treated with anti-inflammatories for

his alleged pain, not requiring injections, emergency treatment, or hospitalization. Id. at

25. He listed Plaintiff’s daily living activities of performing household chores, preparing

simple meals, and shopping in stores. Id. He also described Plaintiff’s previous medical

treatment in detail. This included a cyst in January 2015 that resolved by May 2015; a

pulmonary function test that was normal for his age; normal cardiac test results; and a hip

x-ray in December 2016 that revealed moderate degenerative joint disease but with pain

that was somewhat relieved by Ibuprofen, a normal gait, and normal movement, tone, and

strength in all extremities. Id. at 22–23, R. 376–77, 386. All of these findings constitute

substantial evidence supporting the ALJ’s decision not to assign substantial weight to Dr.

Meadows’ opinion.

Plaintiff cites Henry v. Comm’r of Soc. Sec., 802 F.3d 1264 (11th Cir. 2015) for the

proposition that discounting Dr. Meadows’ opinion due to a history of mild, conservative

treatment was error. In Henry, however, the ALJ relied on a lack of treatment without

developing the record and or considering the claimant’s inability to pay for the treatment:

The ALJ discredited Dr. Barber’s opinion as inconsistent with Henry’s

“limited and conservative treatment,” specifically citing Henry’s failure to

seek hospitalization, narcotics, or steroidal injections. Despite Henry’s

statement that he is unable to pay for continued medical treatment, including

chiropractic care, the ALJ neither developed the record nor addressed

Henry’s financial ability to pursue a more rigorous course of treatment. As

such, the ALJ failed to consider any good cause explanations for failure to

seek medical treatment and dispel any inconsistencies with Dr. Barber’s

assessment.

Id. at 1268. Henry is distinguishable because the ALJ in this case did not base his decision

on a lack of treatment. He continued the first hearing to obtain additional medical evidence,

and his conclusions were based on that evidence combined with Plaintiff’s previous

medical history for the relevant period. A history of minimal, conservative treatment with

mild and normal findings is not the same as a lack of treatment because the claimant could

not afford it.6

Again, Plaintiff does not point to specific limitations by either doctor that should

have been adopted by the ALJ, but, as stated above, an RFC need not be identical to a

medical source statement. The ALJ did not incorporate all of Dr. Meadows’ functional

limitations, but he incorporated most of them. Dr. Meadows’ functional limitations are

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6 Plaintiff has not argued that he needed additional treatment that he could not afford. He did testify that he

lacked the money to get a particular medicine, but in the next sentence he stated, “And I got new medicine

they’ll put me on today. I got two bottles of that.” R. 58. He testified that he took medicine to the point of

staying dizzy all the time. Therefore, it does not appear that Plaintiff had problems paying for his

medication. Plaintiff also testified that his doctor could not figure out the pain in his feet but told him he

could go to a “hospital or something like that” if he had insurance. Id. at 57. However, this was remedied

by referring Plaintiff to Dr. Miller for the NCV and EMG.

identical to the ALJ’s limitations in many areas, and his limitations on how long Plaintiff

can sit, stand, and walk at one time are less restrictive than the ALJ’s.7 In fact, the ALJ’s

functional limitations for most activities either match or fall between those of Dr. Miller

and Dr. Meadows. The only exception is the length of time Plaintiff can stand or walk in

total during an eight-hour day. The ALJ determined Plaintiff could do both for four out of

eight hours, while Dr. Miller said he could do both for one hour and Dr. Meadows said he

could do both for two hours. However, the ALJ was not required to pick and choose the

most restrictive limitation from each doctor. Because the ALJ assigned no substantial

weight to each opinion, the RFC could not be expected to mirror their opinions.8 Abbington,

2019 WL 938884 at *9; see also Beegle v. Soc. Sec. Admin., Com’r, 482 F. App’x 483, 486

(11th Cir. 2012) (per curiam) (unpublished) (“A claimant’s residual functional capacity is

a matter reserved for the ALJ’s determination, and while a physician’s opinion on the

matter will be considered, it is not dispositive.”).

VII. CONCLUSION

Accordingly, the decision of the Commissioner is AFFIRMED. A separate

judgment will issue.

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7 Plaintiff describes the peripheral neuropathy diagnosis as “neither ‘generally mild’ nor ‘normal.’” Doc.

11 at 9. However, Dr. Meadows was fully aware of this diagnosis when he completed the medical source

statement indicating the Plaintiff can sit, stand, and walk at one time for longer periods than the ALJ

determined. R. 435.

8 Although Plaintiff argues that the ALJ erred in assigning no substantial weight to both opinions, due to

the differences in the limitations assigned by each doctor, any RFC based on these two opinions would

necessarily deviate from one medical opinion or the other.

DONE this 29th day of March, 2021.

/s/ Kelly Fitzgerald Pate

KELLY FITZGERALD PATE

UNITED STATES MAGISTRATE JUDGE