# Dancy v. Social Security Administration, Commissioner

> District Court, N.D. Alabama · March 14, 2023

URL: https://www.frixlaw.com/law-library/cases/9991573

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9991573

## How later opinions describe it (automated extraction)

- stating that the ALJ will give more weight to the medical opinions of a source who has examined the plaintiff, and opinions supported by medical signs and findings and consistent with the overall “record as a whole”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

KIMLI DANCY, )
)
Plaintiff )
)
vs. ) Case No. 7:21-cv-01349-HNJ
)
SOCIAL SECURITYADMINISTRATION, )
COMMISSIONER, )
)
Defendant )

MEMORANDUM OPINION

Plaintiff Kimli Dancy seeks judicial review pursuant to 42 U.S.C. § 405(g) of an
adverse, final decision of the Commissioner of the Social Security Administration
(“Commissioner”), regarding her claim for a period of disability, disability insurance,
and supplemental security income benefits. The undersigned carefully considered the
record, and for the reasons expressed herein, AFFIRMS the Commissioner’s decision.1
LAW AND STANDARD OF REVIEW
To qualify for benefits, the claimant must be disabled as defined by the Social
Security Act and the Regulations promulgated thereunder. The Regulations define
“disabled” as the “inability to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the
parties have voluntarily consented to have a United States Magistrate Judge conduct any and all
proceedings, including the entry of final judgment. (Doc. 10).
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. §§ 404.1505(a), 416.905(a). To establish an

entitlement to disability benefits, a claimant must provide evidence of a “physical or
mental impairment” which “results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3).

In determining whether a claimant suffers a disability, the Commissioner,
through an Administrative Law Judge (ALJ), works through a five-step sequential
evaluation process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The burden rests
upon the claimant at the first four steps of this five-step process; the Commissioner

sustains the burden at step five, if the evaluation proceeds that far. Washington v.
Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018).
In the first step, the claimant cannot be currently engaged in substantial gainful
activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, the claimant must prove the

impairment is “severe” in that it “significantly limits [the] physical or mental ability to
do basic work activities . . . .” Id. at §§ 404.1520(c), 416.920(c).
At step three, the evaluator must conclude the claimant is disabled if the

impairments meet or medically equal one of the impairments listed at 20 C.F.R. Part
404, Subpart P, App. 1, §§ 1.00-114.02. Id. at §§ 404.1520(d), 416.920(d). If a
claimant’s impairment meets the applicable criteria at this step, that claimant’s
2
impairment would prevent any person from performing substantial gainful activity. 20
C.F.R. §§ 404.1520(a)(4)(iii), 404.1525, 416.920(a)(4)(iii), 416.925. That is, a claimant

who satisfies steps one and two qualifies automatically for disability benefits if the
claimant suffers a listed impairment. See Williams v. Astrue, 416 F. App’x 861, 862 (11th
Cir. 2011) (“If, at the third step, [the claimant] proves that [an] impairment or
combination of impairments meets or equals a listed impairment, [the claimant] is

automatically found disabled regardless of age, education, or work experience.”) (citing
20 C.F.R. § 416.920; Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)).
If the claimant’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluation proceeds to the fourth step, where

the claimant demonstrates an incapacity to meet the physical and mental demands of
past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). At this step, the evaluator
must determine whether the claimant has the residual functional capacity (“RFC”) to
perform the requirements of past relevant work. See id. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). If the claimant’s impairment or combination of impairments does
not prevent performance of past relevant work, the evaluator will determine the
claimant is not disabled. See id.

If the claimant succeeds at the preceding step, the fifth step shifts the burden to
the Commissioner to provide evidence, considering the claimant’s RFC, age, education
and past work experience, that the claimant is capable of performing other work. 20
3
C.F.R. §§ 404.1512(b)(3), 416.912(b)(3), 404.1520(g), 416.920(g). If the claimant can
perform other work, the evaluator will not find the claimant disabled. See id. §§

404.1520(a)(4)(v), 416.920(a)(4)(v); see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the
claimant cannot perform other work, the evaluator will find the claimant disabled. 20
C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
The court must determine whether substantial evidence supports the

Commissioner’s decision and whether the Commissioner applied the proper legal
standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The
court reviews the ALJ’s “‘decision with deference to the factual findings and close
scrutiny of the legal conclusions.’” Parks ex rel. D.P. v. Comm’r, Social Sec. Admin., 783

F.3d 847, 850 (11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th
Cir. 1991)). Indeed, “an ALJ’s factual findings . . . ‘shall be conclusive’ if supported by
‘substantial evidence.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019) (citing 42 U.S.C.
§ 405(g)). Although the court must “scrutinize the record as a whole . . . to determine

if the decision reached is reasonable . . . and supported by substantial evidence,”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted), the court
“may not decide the facts anew, reweigh the evidence, or substitute [its] judgment” for

that of the ALJ. “[W]hatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high. . . . Substantial evidence . . . . is
‘more than a mere scintilla,’ . . . [and] means – and means only – ‘such relevant evidence
4
as a reasonable mind might accept as adequate to support a conclusion.’” Biestek, 139
S. Ct. at 1154 (citations omitted). Therefore, substantial evidence exists even if the

evidence preponderates against the Commissioner’s decision. Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005).
FACTUAL AND PROCEDURAL HISTORY
Ms. Dancy, age 39 on her alleged disability onset date and age 44 at the time of

the current ALJ’s decision, filed applications for a period of disability, disability
insurance, and supplemental security income benefits on April 8, 2016, alleging
disability as of February 1, 2016. (Tr. 12, 25, 468-80).
The Commissioner initially denied Dancy’s claims on May 3, 2016, and Dancy

timely filed a request for hearing on June 3, 2016. (Tr. 145-68, 226-28). The
Administrative Law Judge (“ALJ”) held a hearing on March 14, 2018 (Tr. 107-44), and
issued an opinion on June 22, 2018, denying Dancy’s claim. (Tr. 169-84). Dancy
appealed that decision (Tr. 280-82, 594-95), and on April 3, 2019, the Appeals Council

remanded the claim to the ALJ to explain the weight he afforded the record medical
opinions. (Tr. 188-91).
The same ALJ conducted a second hearing on February 26, 2020 (Tr. 63-102),

and on May 28, 2020, he issued a second decision, again denying Dancy’s claim. (Tr.
192-205). Dancy appealed that decision (Tr. 375-77, 454-55), and on October 2, 2020,
the Appeals Council again remanded the claim, as the ALJ evaluated the record medical
5
opinions pursuant to the post-March-2017 regulatory revisions, though Dancy filed her
claim prior to March 2017. (Tr. 211-16).

The Commissioner assigned the claim to a different ALJ, who held a third
hearing on April 13, 2021 (Tr. 35-62), and issued a third decision on May 6, 2021, again
denying Dancy’s claim. (Tr. 12-27). This opinion addresses the ALJ’s May 6, 2021,
decision.

Applying the five-step sequential process, the ALJ found at step one that Dancy
did not engage in substantial gainful activity after February 1, 2016, her alleged onset
date. (Tr. 18). At step two, the ALJ found Dancy exhibited the severe impairments
of lumbar strain, lumbar degenerative changes, and obesity. (Id.). At step three, the

ALJ found that Dancy’s impairments, or combination of impairments, did not meet or
medically equal any impairment for presumptive disability listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 19).
Next, the ALJ found that Dancy exhibited the residual functional capacity

(“RFC”)
to perform a range of light exertion as that term is described in the
Administration’s regulations; however, as a part of the job requirement,
the claimant can stand or walk in combination for no more than three
hours in an eight-hour day and cannot perform either of those postural
activities more than one hour at a time. The claimant has the ability to
sit for eight hours. The claimant can occasionally push or pull, operate
foot controls, climb, balance, stoop, kneel, crouch, operate motor
vehicles, or perform around hazardous machinery. The claimant will not
6
be required to crawl or perform at unprotected heights. The claimant will
use a cane for ambulation.

(Tr. 20).
At step four, the ALJ determined Dancy could not perform her past relevant
work as a security guard, cashier/checker, or parking lot attendant. (Tr. 24-25). At
step five, the ALJ determined Dancy could perform a significant number of other jobs
in the national economy considering her age, education, work experience, and RFC.
(Tr. 25). Accordingly, the ALJ determined Dancy has not suffered a disability, as

defined by the Social Security Act, since February 1, 2016. (Tr. 26).
Dancy timely requested review of the ALJ’s decision. (Tr. 466-67, 638-41). On
August 24, 2021, the Appeals Council denied review, which deems the ALJ’s decision
as the Commissioner’s final decision. (Tr. 1-3). On October 11, 2021, Dancy filed

her complaint with the court seeking review of the ALJ’s decision. (Doc. 1).
ANALYSIS
In this appeal, Dancy argues the ALJ improperly considered the opinions of the
treating nurse practitioner, failed to provide evidentiary support for the residual

functional capacity assessment, and failed to fully and fairly develop the administrative
record by forsaking updated imaging and further consideration by the consultative
examiner. For the reasons stated herein, the court finds those contentions do not
warrant reversal.

7
I. The ALJ Properly Considered the Treating Nurse Practitioner’s Opinion
Dancy argues the ALJ improperly considered the opinions of Bobbie Curtis, a

nurse practitioner and Dancy’s treating provider. As discussed below, that contention
does not withstand analysis.
Under the previous regulatory framework applicable to Dancy’s claim,2 the ALJ
must give “substantial or considerable weight” to the opinion of a treating physician

“unless ‘good cause’ is shown.” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2003)
(citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). Good cause exists when:
(1) the evidence did not bolster the treating physician’s opinion; (2) the evidence
supported a contrary finding; or (3) a treating physician’s opinion was conclusory or

inconsistent with the doctor’s own medical records. Id. at 1241. An ALJ must clearly
articulate the reasons for affording less weight to a treating physician’s opinions. Id.
An ALJ does not commit reversible error when (1) he articulates specific reasons for
declining to give the treating physician’s opinion controlling weight, and (2) substantial

evidence supports these findings. Moore, 405 F.3d at 1212.
Moreover, to determine the weight given to any medical opinion, an ALJ must
consider several factors, including the examining relationship, the treatment

2 On January 18, 2017, the Commissioner revised the regulations governing the assessment of medical
opinion evidence for claims filed on or after March 27, 2017. See Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5867 (Jan. 18, 2017) (codified at 20 C.F.R. §§
404.1520c, 416.920c). Dancy’s claims, filed on April 8, 2016, do not fall under the revised regulations.
8
relationship, the evidence presented to support the opinion, the consistency of the
opinion with other evidence, and the specialization of the medical professional. 20

C.F.R. §§ 404.1527(c), 416.927(c); see Davis v. Comm’r of Soc. Sec., 449 F. App’x 828, 832
(11th Cir. 2011) (stating that the ALJ will give more weight to the medical opinions of a
source who has examined the plaintiff, and opinions supported by medical signs and
findings and consistent with the overall “record as a whole”). The ALJ may reject the

opinion of any physician when the evidence supports a contrary conclusion. Hearn v.
Comm’r of Soc. Sec., 619 F. App’x 892, 895 (11th Cir. 2015) (citing Bloodsworth, 703 F.2d at
1240). However, the ALJ must “state with at least some measure of clarity the grounds
for [a] decision.” Winschel, 631 F.3d at 1179. This measure of clarity requires the ALJ

to articulate the weight given to each medical opinion and the reason therefor. Id.
Bobbie Curtis, Dancy’s treating nurse practitioner at the Greene County Hospital
Physicians Clinic, completed a Medical Source Statement (Physical) form on September
19, 2019, registering several assessments of Dancy’s functional capacity. Curtis opined

Dancy could sit for one hour and stand or walk for one hour during an eight-hour
period. She could constantly (67-100% of the time) lift and/or carry one to five
pounds, but she could rarely (1-5% of the time) lift more than five pounds. She

required an assistive device to ambulate even minimally. Dancy should avoid dust,
fumes, gasses, temperature extremes, humidity, and other environmental pollutants.
She could rarely push, pull, climb, balance, perform gross and fine manipulation, bend,
9
stoop, reach, operate motor vehicles, and work around hazardous machinery. On
average, her impairments or treatment would cause her to miss work more than three

times a month. Curtis identified chronic radiating back pain as the medical basis for
the restrictions she imposed, and she declared objective medical findings confirmed her
diagnoses. (Tr. 888).
Curtis also completed a Clinical Assessment of Pain form on September 19,

2019. She indicated Dancy experienced pain to such an extent as to distract her from
adequate performance of daily activities. Physical activity – such as walking, standing,
bending, stooping, and waving of extremities – would increase Dancy’s pain to a level
that would require bed rest and/or medication. Curtis expected Dancy to experience

significant medication side effects that may limit her effectiveness performing work
duties or everyday tasks. Curtis did not circle either “yes” or “no” in response to the
question, “Can this patient’s medical condition reasonably be expected to produce the
pain complained of?” She indicated Dancy’s pain would prevent her from maintaining

attention, concentration, or pace for periods of at least two hours. Dancy would need
to sometimes take unscheduled breaks, in addition to normal breaks every two hours.
Her symptoms would interfere with attention and concentration 25% or more of the

time. (Tr. 889).
Curtis completed a second Medical Source Statement (Physical) form on
February 10, 2021. She opined Dancy could sit for less than one hour and stand or
10
walk for less than one hour during an eight-hour period. She could lift up to five
pounds occasionally and up to one pound frequently. She required an assistive device

to ambulate even minimally. She should avoid dust, fumes, gasses, temperature
extremes, humidity, and other environmental pollutants. She could rarely push, pull,
climb, balance, perform gross and fine manipulation, bend, stoop, reach, operate motor
vehicles, and work around hazardous machinery. On average, her impairments or

treatment would cause her to miss work more than three times a month. The imposed
limitations could normally be expected from the type and severity of Dancy’s diagnoses.
Curtis identified chronic back pain and right shoulder pain as the medical bases for the
restrictions she imposed, and she declared objective medical findings confirmed the

diagnoses. (Tr. 990).
Curtis also completed a second Clinical Assessment of Pain form on February
10, 2021. She indicated Dancy experienced profound and intractable pain that virtually
incapacitated her. Physical activity – such as walking, standing, bending, stooping, and

waving of extremities – would greatly increase Dancy’s pain to a level that would cause
distraction from, or total abandonment of, tasks. Curtis expected Dancy to experience
significant medication side effects that may limit her effectiveness performing work

duties or everyday tasks. Curtis indicated Dancy’s medical condition could not
reasonably be expected to produce the pain of which she complained. She stated
Dancy’s pain would prevent her from maintaining attention, concentration, or pace for
11
periods of at least two hours. Dancy would need to sometimes take unscheduled
breaks, in addition to normal breaks every two hours. Her symptoms would interfere

with attention and concentration 25% or more of the time. (Tr. 991).
The ALJ assigned Curtis’s assessment of extreme limitations little weight. (Tr.
24). The ALJ correctly noted that under the pre-March-2017 regulations governing
this claim, “a nurse practitioner is not an ‘acceptable medical source’ for establishing

the existence of a medically determinable impairment,” though a nurse practitioner may
“provide evidence to show the severity of an impairment and how it affects an
individual’s ability to function.” (Id.). Another district court summarized the
distinction between “acceptable” medical sources and “other sources” for these

purposes:
For claims filed before March 27, 2017, the Regulations governing
evaluation of opinion evidence draw a distinction between
“acceptable” medical sources and “other” sources. 20 C.F.R. §
404.1527(a)(1); SSR 06-03p, 2006 WL 2329939 (Aug. 9,
2006). Acceptable medical sources include licensed physicians and
licensed or certified psychologists, whereas “other” sources include nurse
practitioners, physician assistants, licensed clinical social workers,
naturopaths, chiropractors, audiologists, and therapists. SSR 06-03p.
Only “acceptable” medical sources may establish the existence of a
medically determinable impairment. SSR 06-03p. And only
“acceptable medical sources” can give medical opinions that may be
entitled to significant or controlling weight. Anteau v. Comm’r of Soc. Sec.,
708 F. App’x 611, 613 (11th Cir. 2017). But “other” sources . . . may show
the severity of an individual’s impairment and how it affects the
individual’s ability to function. SSR 06-03p.

12
Robinson v. Commissioner of Social Security, No. 6:20-CV-1031-DNF, 2021 WL 3701558, at
*5 (M.D. Fla. Aug. 20, 2021) (footnote omitted). Thus,

[a]lthough there is a distinction between what an adjudicator must
consider and what the adjudicator must explain in the disability
determination or decision, the adjudicator generally should explain the
weight given the opinions from these “other sources,” or otherwise ensure
that the discussion of the evidence in the determination or decision allows
a claimant or subsequent reviewer to follow the adjudicator’s reasoning,
when such opinions may have an effect on the outcome of the case.

SSR 06-3p, 2006 WL 2329939, at *6.3
The ALJ followed those requirements when considering Curtis’s assessments.
Even though the regulations do not require the ALJ to afford the assessments any
particular weight, he articulated that he afforded them little weight. He explained that
he did so because the assessments were “not consistent with the objective diagnostic
imaging, improvement in physical therapy, or the claimant’s statements such as daily
walking for exercise . . . and serving as primary caregiver for her mother after her
mother’s leg amputation . . . .” (Tr. 24). He also stated:
A predominant statement in the treatment records from Nurse
Practitioner Curtis is a “general ill feeling” along with complaints of pain
. . . . The claimant was recommended dietary modification and an
exercise regimen after her periods of physical therapy, but her weight was
not reduced. Ms. Curtis engaged in longitudinal treatment of the

3 The agency rescinded SSR 06-03p effective March 27, 2017. However, because the claimant filed
for disability in 2016, the ruling in effect at that time governs the analysis. SSR 96-2P, 2017 WL
3928298, at *2 (“The final rules revised these policies for claims filed on or after March 27, 2017, in
several ways. For example, in claims filed on or after March 27, 2017, the final rules state that all
medical sources, not just acceptable medical sources, can make evidence that we categorize and
consider as medical opinions.”).
13
claimant with opiate analgesics, with the consent of various physicians.
However, her assessment of the claimant’s functional limitations is
extreme, is not consistent with her or the other medical records, and is
unsupported by the evidence in its entirety, including various statements
regarding the claimant’s actual activities, and the absence of any medical
restriction of her functioning, even though these activities are not shown
to be on a continuous basis.

(Id.). Those factors all constituted permissible considerations. See SSR 06-3p, 2006
WL 2329939, at *4-5 (the weight accorded evidence from other sources will vary
according to the particular facts of the case; the source of the opinion, including that
source’s qualifications; the opinion subject matter; the length of the relationship; and
other factors).
Moreover, substantial evidence supported the ALJ’s decision. Curtis’s own
treatment notes reflect Dancy consistently reported a general ill feeling and chronic pain
in both her knee and her back. (Tr. 747-86, 845-77, 950-89, 992-1016). On May 11,
2017, she characterized her pain as moderate but worsening, and she stated physical
therapy had not helped in the past. (Tr. 770-71). On one occasion – December 6,
2017 – she characterized her pain as mild. (Tr. 756). Otherwise, she continued to
characterize her pain as moderate on June 12, July 12, August 9, September 5, October
7, and November 6, 2017; January 5, February 5, March 5, April 5, May 4, June 4, July

7, September 10, October 9, November 5, and December 4, 2018; January 2, February
7, March 11, April 12, May 9, June 12, July 12, August 19, September 19, November
25, and December 26, 2019; and January 24, February 27, June 23, July 29, October 15,
14
November 12, and December 30, 2020; and February 10 and March 10, 2021. (Tr.
748-55, 758-73, 781-86, 846-73, 951-89).

On November 6, 2017, Dancy reported her back pain radiated into her right leg,
and she demonstrated decreased range of motion in her lower extremity. (Tr. 758-59).
On February 5, 2018, she displayed normal range of motion and strength in her lower
extremities. (Tr. 752-53). On multiple occasions, Dancy reported she could not see

a specialist because she lacked medical insurance. (Tr. 956, 960, 998, 1004). On
March 10, 2021, Curtis advised Dancy to apply for Medicaid benefits via the Health
Department, and Dancy agreed to do so. (Tr. 998). Dancy consistently reported that
physical therapy did not help her pain, and Curtis consistently prescribed Norco for

pain management and recommended weight management and exercise. (Tr. 748-55,
758-73, 846-73, 951-89). On March 5 and October 9, 2018, Dancy reported Norco
helped her function better with her daily activities. (Tr. 786, 861).
Curtis appears to have based her treatment of Dancy primarily, if not solely, upon

Dancy’s subjective complaints of pain, yet she never characterized Dancy’s pain as more
than moderate in severity, and she never imposed any restrictions on Dancy’s
functioning. To the contrary, she encouraged Dancy to exercise. Moreover, as

emphasized previously Curtis registered on the February 10, 2021, form that she would
not reasonably expect Dancy’s medical condition to produce the pain level reported by
Dancy. That notation garners significant weight, as it indicates even Curtis did not
15
find Dancy’s complaints consistent with the medical evidence. Thus, Curtis’s own
treatment notes do not provide a substantial evidentiary basis for her assessments of

disabling limitations.
The other medical evidence also does not substantially support Curtis’s
assessments.
On February 18, 2016, Dancy presented to the Emergency Department at

Greene County Health System after she fell from a ladder. She reported constant,
aching low back pain at a level eight, but the level decreased to four after she received
pain medication. During the physical examination, Dancy ambulated without
difficulty, moved her extremities without difficulty, and displayed intact motor function.

An x-ray revealed superior endplate compression fractures at L1 and L2. The
Emergency Department discharged Dancy the same day in stable condition, with a
referral to an orthopedist. (Tr. 663-72).
Dancy attended physical therapy beginning February 25, 2016. She reported

level-six pain which moderately affected her functioning. She demonstrated 4/5
motor strength in the lower extremities, 3/5 motor strength in the core/trunk, and
limited ability to bend and touch her toes. (Tr. 654-57). By March 14, 2016, and again

on March 28, 2016, her pain level reduced to two, though her extremity muscle strength
remained slightly limited at level 4+/5. (Tr. 658-59).
After her fall – but before she began seeing Curtis at Greene County Hospital
16
Physicians Clinic – Dancy received treatment from Whatley Health Services. On June
16, 2016, she reported feeling better after her fall due to physical therapy, yet she still

experienced pain when lifting or sitting and standing for long periods. Over-the-
counter medication helped some. She experienced no gait disturbance or muscle
weakness. Lumbar spine tenderness constituted the only symptom on the
musculoskeletal examination. Lisa Means, a Physician’s Assistant, recommended

Dancy continue exercising, take pain medications as needed, use ice and heat as needed,
and lose weight. (Tr. 733-37).
On July 18, 2016, Dancy displayed lumbar tenderness with pain radiating to the
left hip, and the examination revealed mild pain with motion. Sarah Pate, a Nurse

Practitioner, recommended over-the-counter medication, ice, stretching, exercise, and
weight loss. Contrastingly, Dancy reported level-zero pain. (Tr. 728-32).
On August 29, 2016, Dancy reported experiencing some back pain since her last
visit, yet the pain had improved, as rest, ice, and over-the-counter medications helped.

She assessed the pain at a level three, and she displayed normal gait. (Tr. 723-27).
On November 29, 2016, Dancy reported on-and-off back pain at a level three.
Over-the-counter medication did not help as much as in the past, and she requested

other pain medication. (Tr. 718-22).
On February 7, 2017, Dancy reported continued pain at a level two. She
experienced difficulty walking, standing, or sitting for extended periods of time. She
17
displayed mild pain with motion in the lumbar spine. (Tr. 713-17).
On February 9, 2017, a lumbar spine x-ray revealed: “slight loss of height of the

superior endplate of the L3 vertebral body and defect along the anterior superior
margins of the vertebral body[, which] could be related to post-traumatic or
developmental changes. The findings appear relatively chronic. Mild lumbosacral
arthritic changes.” (Tr. 700).

On March 30, 2017, she presented for a gynecological examination, and the
records do not contain findings about her back pain. (Tr. 708-12).
On April 24, 2017, Dancy reported level seven pain with some radiation to the
left side and difficulty standing, walking, or sitting for long periods. Her medications

helped minimally. The examination produced mild pain with her back’s range of
motion, but Dancy displayed normal gait. She received an orthopedic referral. (Tr.
702-07).
Dancy returned to physical therapy on October 10, 2017, as she experienced a

decline in her tolerance for functional activity. She reported level-five pain, and she
displayed 4-/5 muscle strength in her lower extremities. (Tr. 815-17). On October
16, 18, 23, and 25, 2017, she completed her exercises with minimal pain reported. (Tr.

827-28). On October 30, 2017, she reported level-six pain, but she demonstrated
improved ability to sit upright while maintaining posture. (Tr. 818). By November 7,
2017, her pain had decreased to level three, and her ability to sit upright continued to
18
improve. (Tr. 819). On November 6 and 8, 2017, she completed her exercises with
good tolerance and minimal pain. (Tr. 830). On November 16 and 28, 2017, Dancy

reported level-five pain. (Tr. 822-23, 831).
On September 15, 2018, Dancy presented to the Emergency Department at
Greene County Health System with complaints of arm and facial swelling, but she
denied back pain, and she ambulated without difficulty. (Tr. 805, 814).

On April 29, 2019, she presented to the Emergency Department at DCH Health
System with complaints of throat, eye, and abdominal pain. The physical examination
of her back produced normal results and no tenderness. (Tr. 933-35).
On December 29, 2019, she presented to the Emergency Department at DCH

Health System with complaints of back pain. (Tr. 891-918). She characterized her
pain at a level ten of ten, and the pain had decreased to a level eight when she
discharged. (Tr. 897, 903). She displayed stable gait, good lower extremity strength,
and intact sensation in lower extremities. (Tr. 909).

These records indicate Dancy experienced chronic back pain after her fall in
2016, yet, with only a few sporadic exceptions, even her subjective reports characterized
the pain as no more than moderate, and medication provided good pain control.

Physical findings – including typically normal gait, little to no difficulty ambulating,
above average motor strength, intact sensation, and mild pain with motion in the
lumbar spine – comport with her complaints of mostly moderate pain. Accordingly,
19
the other medical records do not provide substantial support for Curtis’s imposition of
disabling limitations.

Dancy argues the ALJ impermissibly focused on isolated facts to support the
finding of non-disability while ignoring other facts that would support a disability
finding. Specifically, Dancy argues the ALJ improperly considered her statements that
Norco improved her daily functioning, as she previously engaged in only extremely

limited activities, and an increase in those activities still would not support an ability to
work on a sustained basis. (Tr. 23). She also argues the ALJ improperly considered
her August 23, 2019, statement to Emergency Department providers that she served as
her mother’s primary caregiver after her mother underwent a leg amputation, and her

September 10, 2020, statement that she hurt her shoulder taking care of a 19-pound
baby. (Tr. 883, 971). Although Dancy does not dispute she rendered the foregoing
statements as recounted by the ALJ, she disputes the extent of her caregiver role and
the ALJ’s characterization of her shoulder injury. Regardless of the ALJ’s assessment

of that evidence, he did not focus solely on those three facts to support his decision.
As discussed in detail above, neither Curtis’s own records nor the remainder of the
medical evidence supports Curtis’s extreme assessments.

For these reasons, the court finds the ALJ did not err in evaluating Curtis’s
assessments of disabling limitations.

20
II. The ALJ Properly Assessed Dancy’s Residual Functional Capacity
Dancy next argues the ALJ erred by reaching a more restrictive RFC finding

than the ALJ formerly assigned to the case, without providing an adequate evidentiary
foundation for the differences. Assessing a claimant’s RFC lies within the exclusive
province of the ALJ. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (“[T]he final
responsibility for deciding [a claimant’s RFC] is reserved to the Commissioner.”); 20

C.F.R. §§ 404.1546(c), 416.946(c) (“[T]he administrative law judge . . . is responsible for
assessing [a claimant’s] residual functional capacity.”); Oates v. Berryhill, No. 17-0130-
MU, 2018 WL 1579475, at *8 (S.D. Ala. Mar. 30, 2018) (“The responsibility for making
the residual functional capacity determination rests with the ALJ.”).

In the May 28, 2020, administrative opinion, the previous ALJ found Dancy
possessed the RFC
to perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except occasional stooping and crouching; no climbing of
ladders, stairs, ramps, or scaffolds; no unprotected heights; no operation
of hazardous machinery; no driving; no lower extremity pushing and
pulling; and could use an assistive device (cane) for ambulation and
balancing.

(Tr. 200).
Dancy contends the current RFC “is starkly different” from the former RFC, as
the current ALJ “increased her overall exertional level from sedentary to light; removed
the inability to climb, push or pull, operate foot controls, and work around hazardous
21
machinery, allowing such activity on an occasional basis; and implicitly removed the
requirement to use a cane for balance.” (Doc. 11, at 15). Given those differences,

Dancy faults the ALJ’s decision on appeal at bar for failing to “identify any evidence of
medical improvement.” (Id).
However, there exists no requirement the ALJ explain the distinctions between
his RFC finding and the previous ALJ’s finding. The Appeals Council vacated the

previous ALJ’s decision pursuant to 20 C.F.R. §§ 404.977 & 416.1477, and it remanded
the case for review by a different ALJ. (Tr. 213). According to the Administration’s
Hearing, Appeals, and Litigation Law Manual (HALLEX), such an action “requires that
an ALJ issue a new decision in the case.” HALLEX § I-3-7-1, 1993 WL 643162 (April

26, 2016); see Prevost v. Comm’r of Soc. Sec., No. CV 20-11961, 2021 WL 2349348, at *4
(E.D. Mich. Mar. 31, 2021), report and recommendation adopted sub nom. Prevost v. Saul, No.
20-CV-11961, 2021 WL 1940487 (E.D. Mich. May 14, 2021) (citing HALLEX § I-3-7-
1) (“The Appeals Council’s February 2019 remand order effectively nullified ALJ

Blatnik’s 2018 decision. . . . Given that the prior decision is typically vacated ‘in its
entirety,’ it makes sense that the HALLEX does not direct the ALJ to explain any
differences between his original decision and the one issued after remand.”).

In the same tenor of the afore-discussed RFC contentions, Dancy asserts the
ALJ failed to link the RFC finding to medical assessments in the record. (Doc. 11, at
15); see also id. at 17 (The ALJ “failed to link the evidence to the RFC determination by
22
describing how the evidence supports each conclusion.”). As an initial matter, that the
current ALJ’s RFC finding departs from Curtis’s assessment does not evince an

erroneous determination. As previously discussed, the ALJ properly afforded Curtis’s
assessment little weight, and substantial evidence supported his decision to do so.
Furthermore, Social Security Ruling 96-8p dictates that an RFC assessment must
first determine the claimant’s functional limitations and then address the claimant’s

ability to work on a function-by-function basis, pursuant to the functions described in
paragraphs (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. SSR 96-8p, 1996
WL 374184, *1. Those functions include physical abilities such as standing, walking,
lifting, carrying, pushing, and pulling; mental abilities such as understanding and

carrying out directions, responding appropriately to coworkers and supervision, and
handling work pressures; and other abilities such as vision or hearing impairments, or
environmental restrictions. 20 C.F.R. §§ 404.1545, 416.945.
The ALJ does not need to enumerate every piece of evidence or function used

in his or her determination, but rather must simply portray that he or she considered
the claimant’s medical conditions in totality. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th
Cir. 2005); see also Castel v. Comm’r of Soc. Sec., 355 F. App’x 260, 263 (11th Cir. 2009).

Once the ALJ has conducted that determination, the ALJ may then express the RFC in
terms of exertional levels such as sedentary, light, medium, heavy, and very heavy. SSR
96-8p, 1996 WL 374184, at *1; see Castel, 355 F. App’x at 263; Freeman v. Barnhart, 220
23
F. App’x 957, 959 (11th Cir. 2007); see also Bailey v. Astrue, No. 5:11-CV-3583-LSC, 2013
WL 531075, *6 (N.D. Ala. Feb.11, 2013).

The ALJ performed such an analysis here, and he reached an RFC finding
supported by the substantial evidence summarized in the previous section. As such,
he did not engage in mere speculation, contrary to Dancy’s argument.
That finding encompasses the ALJ’s assessments that Dancy can stand and walk

for three combined hours during an eight-hour day and lift and carry up to twenty
pounds up to one-third of the workday.4 Dancy argues those assessments constitute
mere speculation, and they contradict the ALJ’s stated requirement she will need to use
a cane for ambulation. (Doc. 11, at 16 (“The ALJ failed to explain how an individual

who is required to use a cane for ambulation could be expected to stand and walk for
three hours in an eight-hour workday, or how an individual who is required to use a
cane for ambulation could be expected to lift and carry up to twenty pounds up to one-
third of the work-day.”)).

The ALJ’s assessments do not amount to speculation. The ALJ limited Dancy
to using a cane, even though Dr. Walid Freij, the consultative examiner, stated she did
not need a cane. (Tr. 697). The ALJ reasoned that “later evidence show[ing] ongoing

4 The ALJ did not impart any specific statements about Dancy’s ability to lift and carry, but he found
she could perform light work, and light work “involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b),
416.967(b).
24
treatment with opiates, continued obesity, and at times an antalgic gait” reasonably
justified cane usage, and he imposed “somewhat greater limitations in standing and

walking” as a result. (Tr. 23). Indeed, Dr. Freij opined Dancy could stand for a total
of three hours and walk for a total of three hours during a workday, meaning she could
engage in those two activities for a combined total of six hours each day. In contrast,
the ALJ limited Dancy to standing and walking in combination for a total of three hours

each day, or half the amount of time Dr. Freij assessed. (Tr. 20). Accordingly, the
ALJ adequately explained the standing, walking, and limitations in his RFC finding, and
he linked those findings to specific medical evidence – i.e., Dancy’s continued opiate
treatment, continued obesity, and occasionally antalgic gait.

Moreover, the ALJ’s assessment that Dancy needs a cane to ambulate does not
necessarily conflict with the ALJ’s finding that Dancy can perform a limited range of
light work. Social Security regulations recognize that use of a cane or other hand-held
assistive device may limit the use of the upper extremities. 20 C.F.R. § Pt. 404, Subpt.

P, App. 1(C)(6)(d) (“When you use a one-handed, hand-held assistive device (such as a
cane) with one upper extremity to walk and you cannot use your other upper extremity
for fine or gross movements (see 1.00E4), the need for the assistive device limits the

use of both upper extremities.”). Even so, “courts have often found that persons are
capable of light, and even medium, work despite the need for an assistive device like a
cane.” Chambers v. Berryhill, No. 1:16CV609-WC, 2017 WL 3381229, at *10 (M.D. Ala.
25
Aug. 4, 2017) (citing Freeman v. Comm’r, Soc. Sec. Admin., 593 F. App’x 911, 916 (11th Cir.
2014)). The assessment depends on a combination of all factors, including the

claimant’s specific abilities, work history, age, and educational background. In the
present case, the vocational expert (VE) testified that an individual of Dancy’s
background, and with the RFC the ALJ imposed – including cane usage for ambulation
– could perform jobs existing in significant numbers in the national economy. (Tr. 54-

55). The VE’s testimony constituted substantial evidence to support the ALJ’s
decision about the number of jobs Dancy could perform in light of her RFC. Ross v.
Comm’r, Soc. Sec. Admin., No. 21-13562, 2022 WL 3654820, at *2 (11th Cir. Aug. 25, 2022)
(citing Wilson v. Barnhart, 284 F.3d 1219, 1228 (11th Cir. 2002)) (“[A] hypothetical

question to a vocational expert can serve as substantial evidence to support a denial of
disability benefits at step five only so long as it includes all of a claimant's
impairments.”).
For these reasons, the ALJ did not err in assessing Dancy’s Residual Functional

Capacity.
III. The ALJ Did Not Err By Failing to Recontact Dr. Freij, Order an
Additional Consultative Examination, or Order Updated Imaging

In her third assignment of error, Dancy contends the ALJ erred by failing to
recontact Dr. Freij, the consultative examiner, order an additional consultative
examination, or order updated imaging.
26
Dr. Freij, a neurologist, conducted a disability examination on November 14,
2017. Dancy reported experiencing lower back pain for one year after falling off a

ladder. She reported greater pain on the right side, and the pain radiates into her thighs
and legs. She also sometimes experiences pain and cold sensations in her toes and feet.
Walking and standing worsen the pain, and working became progressively difficult such
that she eventually quit doing so. She reported Flexeril and Norco help her pain

slightly.
During the examination, Dancy appeared to experience no acute distress. Dr.
Freij detected no swelling, redness, heat, or limited range of motion in any joint.
Dancy’s cervical spine displayed no restriction in lateral flexion, extension, or rotation.

Her thoracolumbar spine demonstrated limited range of motion to 45 degrees, and her
lumbosacral spine demonstrated lower back pain with straight leg raising 45 degrees
bilaterally. She did not use an assistive device. She displayed an antalgic gait, but her
motor strength registered as 5/5 throughout.

Dr. Freij assessed lower back pain with pain radiating to the lower extremities,
especially while standing and walking, and he also suspected lumbosacral spinal stenosis.
(Tr. 696-98). He stated:

Based on the above history and physical examination patient would
not be able to do work related activities that would require her to stand or
walk for prolonged periods of time. She is not able to carry or lift objects
heavier than 20 lbs. She is able to sit, hear, and speak. She can travel in
moderation.
27
(Tr. 698).
Dr. Freij also completed a Medical Source Statement of Ability To Do Work
Related Activities (Physical) form on November 14, 2017. He indicated Dancy could

frequently (1/3 to 2/3 of the time) lift and carry up to ten pounds, occasionally lift and
carry up to 20 pounds, and never lift or carry more than 20 pounds. He imposed those
limitations due to Dancy’s lower back pain radiating into her lower extremities. Dr.
Freij indicated Dancy could sit eight hours continuously without interruption, and for

a total of eight hours in an eight-hour workday. She could stand for one hour at a time,
and for a total of three hours in an eight-hour workday. She could walk for one hour
at a time, and for a total of three hours in an eight-hour workday. She did not need a
cane to ambulate. She could continuously (over 2/3 of the time) reach, handle, finger,

and feel; occasionally (up to 1/3 of the time) push and pull; and occasionally operate
foot controls. She could occasionally climb, balance, stoop, kneel, and crouch, but she
could never crawl. She suffered no hearing or vision impairments. She could never
work around unprotected heights, but she could occasionally operate a motor vehicle

and work around moving mechanical parts, humidity, pulmonary irritants, extreme heat
and cold, and vibrations. She could tolerate exposure to loud noises like heavy traffic.
She could shop; travel without a companion; ambulate without a wheelchair, walker,
two canes, or two crutches; walk a block at a reasonable pace on rough or uneven

28
surfaces; use standard public transportation; climb a few steps at a reasonable pace with
the use of a single hand rail; prepare a simple meal and feed herself; care for her personal

hygiene; and sort, handle, or use paper and files. Dancy had experienced those
limitations for a year, and Dr. Freij expected the limitations to last another year. (Tr.
690-95).
The ALJ disagreed with Dr. Freij’s assessment that Dancy did not need a cane,

as “later evidence shows ongoing treatment with opiates, continued obesity, and at
times an antalgic gait . . . .” For those reasons, the ALJ found it “reasonable to provide
for a cane used for ambulation, and the claimant testified she did so.” In addition, the
ALJ imposed “somewhat greater limitations in standing and walking . . . in light of the

later medical evidence.” Otherwise, the ALJ afforded Dr. Freij’s opinion “good
weight” as it “is the most specific, and is more consistent with the evidence in its
entirety.” (Tr. 23).
As more than three years passed between Dr. Freij’s assessment and the current

ALJ’s administrative opinion (November 14, 2017 to May 6, 2021), Dancy argues the
ALJ should have either recontacted Dr. Freij for updated information or ordered
another consultative examination. She also argues the ALJ should have obtained

updated objective imaging, as she last underwent a lumbar spine x-ray in February 2017,
she experienced degenerative disc disease, a progressive condition, and she could not
afford an MRI or other tests due to lack of medical insurance. According to Dancy,
29
the ALJ’s failure to undertake these tasks violated his duty to develop a full and fair
record for appeal.

Dancy bears the burden of proving she is disabled, and therefore bears
responsibility for producing evidence to support her claim. Hethcox v. Comm’r of Soc.
Sec., 638 F. App’x 833, 835 (11th Cir. 2015); 20 C.F.R. §§ 404.1512(a), 416.912(a).
However, “[s]ince a hearing before an ALJ in a social security matter is not an adversary

proceeding, the ALJ has a basic obligation to develop a full and fair record,” even if the
claimant has counsel. Tackett v. Comm’r of Soc. Sec., No. 21-11852, 2022 WL 2314095, at
*4 (11th Cir. June 28, 2022) (citing Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,
1269 (11th Cir. 2007)). Specifically, Social Security regulations require the ALJ to:

develop [claimant’s] complete medical history for at least the 12 months
preceding the month in which [the claimant files her] application unless
there is a reason to believe that development of an earlier period is
necessary or unless [the claimant says her] disability began less than 12
months before [the claimant] filed [her] application.

20 C.F.R. §§ 404.1512(b)(1), 416.912(b)(1).
However, the ALJ’s failure to fulfill his duty to fully develop the record only
necessitates remand if “‘the record reveals evidentiary gaps which result in unfairness
or clear prejudice.’” Mosley v. Acting Comm’r of Soc. Sec. Admin., 633 F. App’x 739, 742
(11th Cir. 2015) (quoting Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)). Therefore,
“when the evidence in the record is sufficient to support the ALJ’s determination, the
ALJ does not have a duty to obtain additional medical evidence.” Lindsey v. Comm'r of
30
Soc. Sec., 741 F. App’x 705, 710 (11th Cir. 2018) (citing Wilson v. Apfel, 179 F.3d 1276,
1278 (11th Cir. 1999)). Likewise, the ALJ need not order a consultative examination

“‘as long as the record contains sufficient evidence for the administrative law judge to
make an informed decision.’” Tackett, 2022 WL 2314095, at *4 (quoting Ingram, 496
F.3d at 1269). The ALJ bears no responsibility to recontact medical sources when the
record already contains substantial evidence to support a decision. Robinson v. Astrue,

365 F. App’x 993, 999 (11th Cir. 2010); Davison v. Astrue, 370 F. App’x 995, 998 (11th Cir.
2010).
If the passage of time caused a decline in Dancy’s condition, she, not the
Commissioner, bore the burden to prove the decline. Hethcox, 638 F. App’x at 835; 20

C.F.R. §§ 404.1512(a), 416.912(a). The ALJ accounted for some level of decline, as he
observed Dancy could reasonably need a cane at the time of the administrative decision,
though she did not need one at the time of Dr. Freij’s examination. The record
includes updated treatment notes, but it does not contain any evidence reflecting

additional decline, or the need to impose additional limitations. Rather, the record
medical evidence, as previously summarized, adequately supported the ALJ’s decision.
The ALJ did not need to obtain additional evidence, recontact Dr. Freij, or an order an

additional consultative examination as the existing evidence sufficed.
As to Dancy’s assertion she could not afford additional imaging tests, an ALJ
should not draw a negative inference from the claimant’s failure to seek additional
31
treatment when the claimant cannot afford such treatment. Bellew v. Acting Com'r of Soc.
Sec., 605 F. App’x 917, 921 (11th Cir. 2015) (citing Dawkins v. Bowen, 848 F.2d 1211,

1212-14 (11th Cir. 1988)) (“‘[P]overty excuses noncompliance,’ such that
noncompliance does not prevent a claimant from receiving benefits where the
noncompliance is a result of the claimant’s inability to afford treatment.’”). Thus,
“[w]hen the ALJ ‘primarily if not exclusively’ relies on a claimant’s failure to seek

treatment, but does not consider any good cause explanation for this failure, [the court
should] remand for further consideration.” Henry v. Comm’r of Soc. Sec., 802 F.3d 1264,
1268 (11th Cir. 2015) (citing Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (per
curiam); Beegle v. Soc. Sec. Admin., Comm’r, 482 F. App’x 483, 487 (11th Cir. 2012) (per

curiam)). “However, if the ALJ’s determination is also based on other factors, such as
RFC, age, educational background, work experience, or ability to work despite the
alleged disability, then no reversible error exists.” Henry, 802 F.3d at 1268
(citing Ellison, 355 F.3d at 1275).

Here, even if the ALJ drew a negative inference from Dancy’s failure to obtain
additional medical imaging, that inference did not create a reversible error, as the ALJ
did not rely primarily upon Dancy’s failure to seek additional treatment in evaluating

her symptoms, determining her residual functional capacity, and assessing the medical
opinions. Rather, as discussed, the ALJ considered the medical evidence portraying no
more than moderate pain and relatively mild clinical findings, as well as Dr. Freij’s
32
opinion. Thus, the ALJ’s RFC finding did not derive solely, or even primarily, from
Dancy’s failure to seek additional imaging; it primarily emanated from substantial

evidence undermining the alleged severity of Dancy’s back condition and the alleged
scope of her limitations. Accordingly, the ALJ’s consideration of Dancy’s imaging
results does not manifest as error. See Green v. Soc. Sec. Admin., Comm’r, 695 F. App’x
516, 522 (11th Cir. 2017) (“[E]ven if we agreed with [the claimant] that the ALJ drew an

adverse inference from the fact that she had not sought specialized treatment for her
fibromyalgia or back pain, [she] cannot show reversible error . . . [g]iven that the ALJ
did not rely exclusively on [her] failure to seek specialized treatment when discrediting
her testimony.”); Ybarra v. Comm’r of Soc. Sec., 658 F. App’x 538, 541 n.2 (11th Cir. 2016)

(the ALJ improperly relied upon the claimant’s deferral of treatment without
considering his inability to afford the same; however, the ALJ’s error did not warrant
reversal because the ALJ buttressed the credibility assessment with other substantial
evidence).

In summary, the ALJ properly considered Dr. Freij’s opinion, and he did not err
by failing to recontact Dr. Freij, order an additional consultative examination, or order
updated imaging.

CONCLUSION
For the foregoing reasons, the court AFFIRMS the Commissioner’s decision.
The court will enter a separate final judgment.
33
DONE this 14" day of March, 2023.

4 N. feces Met IR.
UNITED STATES MAGISTRATE JUDGE

34

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991573. Public record. Not legal advice.