IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LEAZERA A. MAYLE, :

Plaintiff, :

vs. : CA 15-00086-C

CAROLYN W. COLVIN, :

Acting Commissioner of Social Security,

:

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking 

judicial review of a final decision of the Commissioner of Social Security denying her

claims for disability insurance benefits and supplemental security income. The parties 

have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 

U.S.C. § 636(c), for all proceedings in this Court. (Docs. 17 & 18 (“In accordance with

provisions of 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to 

have a United States magistrate judge conduct any and all proceedings in this case, . . . 

order the entry of a final judgment, and conduct all post-judgment proceedings.”).) 

Upon consideration of the administrative record, plaintiff’s brief, and the 

Commissioner’s brief,1 it is determined that the Commissioner’s decision denying

benefits should be affirmed.

2

 1 The parties were allowed to waive oral argument in this case. (Doc. 19; 

compare id. with Doc. 16.)

2 Any appeal taken from this memorandum opinion and order and 

judgment shall be made to the Eleventh Circuit Court of Appeals. (See Docs. 17 & 18 

(“An appeal from a judgment entered by a magistrate judge shall be taken directly to 

(Continued)

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Plaintiff alleges disability due to fibromyalgia, asthma, carpal tunnel syndrome, 

migraines, pyelonephritis, depression with some anxiety, and personality disorder. The 

Administrative Law Judge (ALJ) made the following relevant findings:

1. The claimant meets the insured status requirements of the Social 

Security Act through December 31, 2016.

2. The claimant has not engaged in substantial gainful activity since 

December 1, 2011, the alleged onset date (20 CFR 404.1571 et seq., and 

416.971 et seq.).

3. The claimant has the following severe impairments:

fibromyalgia, asthma, carpal tunnel syndrome, migraines, 

pyelonephritis, depression with some anxiety, and personality disorder.

(20 CFR 404.1520(c) and 416.920(c)).

. . .

4. The claimant does not have an impairment or combination of 

impairments that meets or medically equals the severity of one of the 

listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 

404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

. . .

5. After careful consideration of the entire record, I find that the 

claimant has the residual functional capacity to perform less than the 

full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b).

The claimant can lift and carry no more than 20 pounds occasionally and

10 pounds frequently. The claimant can stand/walk for no more than 15-

30 minutes at a time for up to 6 hours during an 8-hour workday, with 

changes in position at the intervals provided. The claimant can sit 

through the workday with regular breaks. The claimant can frequently 

handle, finger, feel, push/pull, and use hand tools. The claimant can 

occasionally climb stairs and ramps. The claimant can never climb 

ladders, ropes, or scaffolds. The claimant can never work around 

unprotected heights or dangerous equipment, temperature extremes, 

humidity and wetness, or be exposed to concentrated environmental 

pollutants such as dust, chemicals, or fumes. The claimant must have 

minimal changes in work settings and routine, and make judgment only 

on simple work related decisions. The claimant must avoid tasks 

 

the United States court of appeals for this judicial circuit in the same manner as an 

appeal from any other judgment of this district court.”))

Case 1:15-cv-00086-C Document 20 Filed 11/25/15 Page 2 of 18
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involving a variety of instructions or tasks, but [is] able to understand 

and carry out simple one or two step instructions, and [is] able to 

understand or carry out detailed but uninvolved written or oral 

instructions. The claimant cannot work in crowds, cannot have any 

more than occasional and superficial contact with the public. The 

claimant cannot have more than occasional interaction with coworkers 

and no activities requiring teamwork.

. . .

She continues to seek treatment for her physical impairments. She sought 

treatment at the emergency department for headaches in May 2012, but 

departed in stable condition shortly after treatment was administered for 

her migraine headache. She had normal mood and affect, and [was] 

determined to be in no distress on examination. She returned days later 

for ongoing complaints of headaches and nausea secondary to her 

headache. She reported that emergency care had not improved her 

condition, which is contradicted by emergency department records that 

show her condition was stabilized before she was discharged. She was 

admitted for further observation of her reported headaches. Magnetic 

resonance imaging of the brain showed no significant abnormalities. 

Imaging of the chest was also performed and showed her lungs were clear 

and [her] heart [] within normal limits. The lumbar puncture performed 

was also negative. Her condition was noted as improved as of her 

discharge and [she was] provided medications to address her condition. 

She continues to seek treatment for her physical condition intermittently, 

but clinical findings of significant physical dysfunction have remained 

limited. Her pulmonary deficits require treatment[,] as sought in 

September 2012, but radiological imaging showed no abnormalities. With 

treatment, she was examined and showed good air movement in the lung 

fields and appeared comfortable. Radiological imaging of the chest was 

normal. Physical examination with treatment revealed normal effort and 

breath sounds, with no respiratory distress. She sought treatment for 

migraine headache and pain of the arms, legs, back, and neck in October 

2012. She reported intractable headache and severe issues with physical 

function. However, physical examination showed normal range of motion 

of the neck and musculoskeletal system. There were some sensory deficits 

in the right hand, but she demonstrated normal muscle tone and her 

coordination was normal. Motor examination showed full strength in both 

upper and lower extremities, and normal gait. The claimant’s treatment 

records reveal persistent medical care sought, but also reveal limited 

clinical findings and diagnostic evidence inconsistent with the severity of 

physical dysfunction alleged. These ongoing medical findings continue to 

support restrictions to the light exertional range with further postural 

restrictions and environmental restrictions to accommodate her pain and 

respiratory issues, but fail to support the debilitating condition alleged. 

She sought emergency treatment in October 2012 with complaints of 

abdominal pain. Radiological imaging was consistent with her prior 

Case 1:15-cv-00086-C Document 20 Filed 11/25/15 Page 3 of 18
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history of kidney issues, but her reported symptoms did not appear to be 

related to exacerbations in this condition, and she was discharged in stable 

condition. The computed tomography did not provide sufficient evidence 

of acute abnormality to determine the underlying cause of her complaints. 

. . . She sought treatment for generalized body aches in November 2012 as 

well as ongoing issues with her mental impairments causing disinterest in 

social activities. She continued to receive medication treatment, and [was] 

instructed to continue follow-up with mental health treatment at 

AltaPointe. However, corresponding AltaPointe records revealed limited 

compliance with the prescribed treatment including tolerance skills as 

prescribed. Despite her reported body aches, the objective findings 

remain[ed] limited. There was no pulmonary deficits noted and her 

oxygen saturation rate was 98%. There were no limitations in range of 

motion or abnormal exertional function noted on examination. She 

reported issues with concentration and confusion in December 2012 while 

driving, but the claimant has provided conflicting statements regarding 

driving. She reported in her function report that she does not drive 

because of her condition . . . and travels by riding in the car. However, she 

testified at the hearing that she has a driver’s license and still drives. 

Despite the confusion reported, she was alert and without distress on 

examination. She has continued to receive medical care as needed, and 

reports persistent concerns that warrant restrictions in functioning. 

However, the evidence fails to support the severity of functional deficits 

alleged. The claimant continues to seek and receive treatment for her 

reported pain and pulmonary dysfunction, but medical sources have not 

determined her combination of impairments has warranted additional 

methods of treatment other then the intermittent injections provided.

Correspondence was provided in February 2013 assessing the claimant’s 

physical and mental condition. While this source identified herself as a 

doctor, this document indicates her doctorate degree is in nursing 

practice, and is not an acceptable medical or psychological source. She 

reports having treated the claimant over the past eight months. She 

reports the claimant has experienced deterioration in mental status and 

continues to receive treatment for both her mental issues as well as 

physical problems causing pain that further exacerbates her mental 

condition. This source assesses the claimant is unable to perform work 

duties in any capacity and requires ongoing treatment at AltaPointe. The 

record does support the claimant’s condition warrants ongoing mental 

health treatment. However, this opinion evidence from a treating nonmedical source assesses the claimant’s incapacity to perform work 

activity, an issue reserved to the Commissioner. Furthermore, this source 

identifies that she has provided treatment at Hands of Hope Healthcare 

Center. The[] corresponding records of treatment reflect some physical 

issues, but that the claimant receives mental health treatment elsewhere 

with acceptable mental health professionals at AltaPointe. These records 

do not support significant familiarity with the claimant’s mental capacity 

to function, and do not reflect objective medical findings that would 

support the debilitating condition assessed. This non-medical treating 

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source opinion remains inconsistent with the record, which does not 

support the conclusion that she is unable to perform work duties in any 

capacity, and this is further contradicted by the clinical findings made by 

treating [] medical and psychological sources in the claimant’s other 

records of treatment. This opinion evidence also fails to provide any 

assessment from a functional perspective as to what the claimant can or 

cannot do. Therefore, this opinion evidence was afforded little weight as 

inconsistent with the full record.

An assessment of the claimant’s condition was performed by C. Scott 

Markle M.D., in March 2013. The claimant reportedly had been treated 

since March 2011 for carpal tunnel syndrome, migraine headaches, and 

fibromyalgia. She reportedly was limited by pain, and physical activity 

would greatly increase her symptoms and distract from tasks. She was 

assessed as unable to perform work activity on a full time basis, and 

reportedly has severe pain limiting her employment. Dr. Markle is 

suppo[sed] to constitute a treating medical source. However, his 

assessment of the claimant’s functional limitations and incapacity to 

perform fulltime work activity remains inconsistent with his own 

treatment notes and other records indicating her response to treatment. 

Dr. Markle‘s own treatment notes found that she demonstrated normal 

muscle tone and coordination was normal. She also demonstrated full 

strength on motor examination for both upper and lower extremities. She 

demonstrated normal gait. Dr. Markle’s findings in the months prior to 

this assessment are inconsistent with the assessment provided. Similar 

findings were reported in the scheduled visit days after this assessment 

was performed. The claimant continued to demonstrate minimal sensory 

deficit[s] in the right hand, but demonstrated normal muscle tone and 

normal coordination. Motor examination showed full strength in upper 

and lower extremities with normal gait, as found in previous treatment 

visits. Further records of treatment from Mobile Infirmary also fail to 

support the degree of dysfunction assessed by Dr. Markle in the March 

2013 form. The record fails to substantiate the nature and severity of 

functional deficits assessed, and this treating medical source opinion 

evidence is afforded little weight as inconsistent with the full record.

. . .

In sum, the above residual functional capacity assessment is supported by 

the objective medical evidence including radiological imaging, laboratory 

testing results, diagnostic and clinical findings, and other evidence 

provided in treatment and examination records. The above residual 

functional capacity assessment is also supported by medical and 

psychological opinion evidence, without contradictory treating medical 

source opinion evidence that is supported by the objective medical 

evidence. Additional factors supporting the residual functional capacity 

assessment include the claimant’s longitudinal treatment history, activities 

of daily living, and work history. 

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6. The claimant is unable to perform any past relevant work (20 

CFR 404.1565 and 416.965).

. . .

7. The claimant was born on September 6, 1968 and was 43 years 

old, which is defined as a younger individual age 18-49, on the alleged 

disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to 

communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability 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 (See SSR 82-41 

and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience, and 

residual functional capacity, there are jobs that exist in significant 

numbers in the national economy that the claimant can perform (20 CFR 

404.1569, 404.1569(a), 416.969, and 416.969(a)).

. . .

If the claimant had the residual functional capacity to perform the full 

range of light work, a finding of “not disabled” would be directed by 

Medical-Vocational Rule 202.21. However, the claimant’s ability to 

perform all or substantially all of the requirements of this level of work 

has been impeded by additional limitations. To determine the extent to 

which these limitations erode the unskilled light occupational base, I 

asked the vocational expert whether jobs exist in the national economy for 

an individual with the claimant’s age, education, work experience, and 

residual functional capacity. The vocational expert testified that given all 

of these factors the individual would be able to perform the requirements 

of representative occupations such as follows: 

DOT Title DOT Code Numbers in Economy SVP Strength Skill Level

Folder 369.687-018 420,910 US; 16,320 AL 2 Light Unskilled

Hand 

Packager

559.687-074 236,450 US; 4,375 AL 2 Light Unskilled

Inserting 

Machine 

Operator

208.685-018 57,505 US; 485 AL 2 Light Unskilled

Case 1:15-cv-00086-C Document 20 Filed 11/25/15 Page 6 of 18
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Pursuant to SSR 00-4p, I have determined that the vocational expert’s 

testimony is consistent with the information contained in the Dictionary of 

Occupational Titles. The vocational expert identified that the number of 

jobs available in the economy as a hand packager and inserting machine 

operator were reduced by fifty percent to accommodate situations where 

they could not change positions. These adjustments from the Dictionary of 

Occupational Titles were based upon the vocational expert’s experience 

over thirty years as well as familiarity with the positions identified. The 

testimony was accepted despite slight variance from the Dictionary of 

Occupational Titles, for the reasons identified.

Based on the testimony of the vocational expert, I conclude that, 

considering the claimant’s age, education, work experience, and residual 

functional capacity, the claimant is capable of making a successful 

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

economy. A finding of “not disabled” is therefore appropriate under the 

framework of the above-cited rule.

11. The claimant has not been under a disability, as defined in the 

Social Security Act, from December 1, 2011, through the date of this 

decision (20 CFR 404.1520(g) and 416.920(g)). 

 

(Tr. 13, 14, 16-17, 23-25, 26 & 26-27 (internal citations omitted).) The Appeals Council 

affirmed the ALJ’s decision (Tr. 1-4) and thus, the hearing decision became the final 

decision of the Commissioner of Social Security.

DISCUSSION

In all Social Security cases, an ALJ utilizes a five-step sequential evaluation 

to determine whether the claimant is disabled, which considers: (1) 

whether the claimant is engaged in substantial gainful activity; (2) if not, 

whether the claimant has a severe impairment; (3) if so, whether the 

severe impairment meets or equals an impairment in the Listing of 

Impairments in the regulations; (4) if not, whether the claimant has the 

RFC to perform her past relevant work; and (5) if not, whether, in light of 

the claimant’s RFC, age, education and work experience, there are other 

jobs the claimant can perform.

Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)3 (per 

curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v. 

 3 “Unpublished opinions are not considered binding precedent, but they 

may be cited as persuasive authority.” 11th Cir.R. 36-2.

Case 1:15-cv-00086-C Document 20 Filed 11/25/15 Page 7 of 18
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Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the 

burden, at the fourth step, of proving that she is unable to perform her previous work. 

Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether the claimant has 

met this burden, the examiner must consider the following four factors: (1) objective 

medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence 

of pain; and (4) the claimant’s age, education and work history. Id. at 1005. Although “a 

claimant bears the burden of demonstrating an inability to return to h[er] past relevant 

work, the [Commissioner of Social Security] has an obligation to develop a full and fair 

record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). If a 

plaintiff proves that she cannot do her past relevant work, as here, it then becomes the 

Commissioner’s burden—at the fifth step—to prove that the plaintiff is capable—given 

her age, education, and work history—of engaging in another kind of substantial 

gainful employment that exists in the national economy. Phillips, supra, 357 F.3d at 1237; 

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 

1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). 

The task for the Magistrate Judge is to determine whether the Commissioner’s

decision to deny claimant benefits, on the basis that she can perform those light, 

unskilled jobs identified by the vocational expert at the administrative hearing, is 

supported by substantial evidence. Substantial evidence is defined as more than a 

scintilla and means such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 

L.Ed.2d 842 (1971). “In determining whether substantial evidence exists, we must view 

the record as a whole, taking into account evidence favorable as well as unfavorable to 

Case 1:15-cv-00086-C Document 20 Filed 11/25/15 Page 8 of 18
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the Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).4

Courts are precluded, however, from “deciding the facts anew or re-weighing the 

evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per 

curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “’[e]ven if 

the evidence preponderates against the Commissioner’s findings, [a court] must affirm 

if the decision reached is supported by substantial evidence.’” Id. (quoting Crawford v. 

Commissioner of Social Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).

On appeal to this Court, Mayle asserts two reason why the Commissioner’s 

decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1) 

the ALJ erred in failing to evaluate the opinion of her treating medical source, Cynthia 

Washington, DNP, under SSR 06-03p; and (2) the ALJ reversibly erred in failing to give 

controlling weight to the opinion of the plaintiff’s treating neurologist, Dr. Scott Markle.

A. Opinion of Cynthia Washington, DNP, an “Other Medical Source”. 

There can be no question but that Cynthia Washington, a nurse practitioner (see Doc. 11 

(plaintiff’s brief identifies Washington as a nurse practitioner))5 at the Hands of Hope 

Health Care Center, penned an undated6 “To whom it may concern” opinion letter 

relative to her treatment of plaintiff: “I have had the pleasure of caring for Mrs. Leazera 

Mayle over the past 8 months. Mrs. Mayle has experienced deterioration in mental 

 4 This Court’s review of the Commissioner’s application of legal principles, 

however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

5 Washington identifies herself as a doctor. (See Tr. 753.) She appears to 

have a doctorate in the Nurse Practitioner area. (See id.)

6 Although undated, the ALJ’s opinion makes clear that this 

correspondence was received by the Social Security Administration in February of 2013. 

(Tr. 24.) 

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status, which has resulted in lack of interest in performing daily self-care skills, interest 

in social activities, as well as thoughts of not wanting to live. Mrs. Mayle is currently 

being treated for major depression and personality disorder at Altapointe Healthcare 

Center. In addition, Mrs. Mayle has fibromyalgia, which results in pain that aggravates 

her mental condition. Her physical and mental state has resulted in multiple 

hospitalizations over the past 2 years. Due to her mental status, she is not able to 

perform work duties in any capacity and requires ongoing care by the psychiatrist at 

Altapointe. If further information is needed, please feel free to contact me at the above 

address and/or office number.” (Tr. 753.) 

Nurse practitioners are excluded from the list of “acceptable medical sources” 

whose opinions are to be considered in determining the existence of an impairment. See, 

e.g., 20 C.F.R. § 404.1513(a) (2015). However, medical sources who are not “acceptable 

medical sources” are considered “other sources” and their opinions and evidence may 

be used “to show the severity” of an impairment and “how it affects [the] ability to 

work[.]” See 20 C.F.R. § 404.1513(d) (nurse practitioners included in subsection (1)).

Social Security Ruling 06-03p clearly provides that the factors listed in 20 C.F.R. 

§§ 404.1527(d) and 416.927(d) can be applied to opinion evidence from medical sources 

who are not “acceptable medical sources,” including the following factors: (1) how long 

the source has known the claimant and how frequently the source has seen the 

claimant; (2) how consistent the source’s opinion is with other evidence; (3) the degree 

to which the source presents relevant evidence to support the opinion; (4) how well the 

source explains the opinion; (5) whether the source has a specialty or area of expertise 

related to the individual’s impairments; and (6) any other factors that tend to support or 

refute the source’s opinion. Id. The ruling goes on to explain that not every factor listed 

will apply in every case. Id. And, finally, the ruling explains that the “adjudicator 

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generally should explain the weight given to opinions from [] ‘other sources,’ or 

otherwise ensure that the discussion of the evidence in the . . . decision allows a . . . 

subsequent reviewer to follow the adjudicator’s reasoning . . . .” Id.

With these principles in mind, the undersigned considers plaintiff’s argument 

that the ALJ erred in failing to evaluate the opinion plaintiff’s treating non-accepted 

medical source, Cynthia Washington, DNP, in accordance with SSR 06-03p. In 

particular, plaintiff avers that Washington’s opinion, which is set forth above, is one she 

is qualified to give and is “supported by records showing that the Plaintiff has required 

in-patient treatment for suicidal ideation.” (Doc. 11, at 3, citing Tr. 596-611 & 641-673.) 

The plaintiff is correct in noting that a non-accepted medical source like Washington

may well occupy a position which would “qualif[y her] to give an opinion [showing] 

the severity” of plaintiff’s mental impairment (Doc. 11, at 3); however, her suggestion 

that the ALJ did not give Washington’s opinion “weight” (see id.), or otherwise properly 

evaluate her opinion in accordance with SSR 06-03p is simply incorrect. The Court finds 

that the ALJ properly afforded Washington’s opinion “little weight[,]” and set forth 

several reasons for giving Washington’s opinion little weight (Tr. 24).

The record does support the claimant’s condition warrants ongoing 

mental health treatment. However, this opinion evidence from a treating 

non-medical source assesses the claimant’s incapacity to perform work 

activity, an issue reserved to the Commissioner. Furthermore, this source 

identifies that she has provided treatment at Hands of Hope Healthcare 

Center. The[] corresponding records of treatment reflect some physical 

issues, but that the claimant receives mental health treatment elsewhere 

with acceptable mental health professionals at AltaPointe. These records 

do not support significant familiarity with the claimant’s mental capacity 

to function, and do not reflect objective medical findings that would 

support the debilitating condition assessed. This non-medical treating 

source opinion remains inconsistent with the record, which does not 

support the conclusion that she is unable to perform work duties in any 

capacity, and this is further contradicted by the clinical findings made by 

treating [] medical and psychological sources in the claimant’s other 

records of treatment. This opinion evidence also fails to provide any 

assessment from a functional perspective as to what the claimant can or 

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cannot do. Therefore, this opinion evidence was afforded little weight as 

inconsistent with the full record.

(Id. (internal citations omitted).) As reflected, the ALJ did accord “weight” to 

Washington’s opinion, albeit “little,” and certainly set forth several reasons for 

according Washington’s opinion little weight, in accordance with SSR 06-03p. See 

Montgomery v. Astrue, 2013 WL 3152278, *8 (N.D. Ala. Jun. 18, 2013) (“Here, the ALJ 

does not address every factor [listed in SSR 06-03p] as pointed out by Plaintiff; however, 

the ALJ was not required to explicitly address every factor as long as the ALJ provides 

‘”good cause” for rejecting a [nurse practitioner’s] medical opinions.’”). In particular, 

the ALJ noted that Washington’s opinion was “inconsistent with the record,” (Tr. 24), 

which is an identified factor in SSR 06-03p.7 Moreover, the ALJ correctly noted that 

Washington’s treatment records focused primarily upon plaintiff’s physical 

impairments and clearly reflect—even where mental symptomatology was reported 

and objective mental findings noted—that plaintiff was under the care of a psychiatrist 

at AltaPointe (Tr. 24), an implicit determination that Washington’s opinion was due 

little weight because of a lack of expertise relative to plaintiff’s mental impairment (see 

id. (“These records do not support significant familiarity with the claimant’s mental 

capacity to function[.]”), see SSR 06-03p (factors). Finally, the ALJ correctly noted that 

the objective findings made by Washington (see Tr. 880 (“Flat affect with sad mood with 

disorganized thought process.”) & 881 “Flat affect with tearing and emotional 

 7 Importantly, the ALJ also observed that Washington’s “opinion evidence . 

. . assesses the claimant’s incapacity to perform work activity, an issue reserved to the 

Commissioner.” (Tr. 24.) The ALJ’s criticism of Washington’s opinion in this regard, 

while perhaps not a specific “factor” listed in SSR 06-03p, is nevertheless appropriate. 

Miles v. Social Security Administration, 469 Fed.Appx. 743, 745 (11th Cir. Mar. 15, 2012) 

(“[A] medical source’s statement that a claimant is ‘unable to work’ or ‘disabled’ does 

not bind the ALJ, who alone makes the ultimate determination as to disability under the 

regulations.”). 

Case 1:15-cv-00086-C Document 20 Filed 11/25/15 Page 12 of 18
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instability; appropriate response to verbal command but with . . .”); but cf. Tr. 679 

(“Positive [for] mental illness F/B psychiatrist, currently compliant with medical 

management plan; no H/O suicidal ideations or plans.”) & 680 (same)), were not 

consistent with “the debilitating condition assessed[,]” (Tr. 24), that is, Washington’s 

objective findings were inconsistent with her opinion that plaintiff cannot “perform 

work duties in any capacity” due to her mental status (Tr. 753). Thus, the ALJ did not 

err in affording Washington’s conclusory letter opinion “little” weight. Cf. Kennedy v. 

Colvin, 2015 WL 1003845, *8 (N.D. Fla. Mar. 5, 2015) (“The ALJ gave ‘little weight’ to the 

opinions of Ms. Breland because he found them ‘inconsistent with the other evidence in 

the record.’ [] The ALJ also found that the ‘treatment notes from Ms. Breland’s clinic, 

the Washington County Health Department, fail[ed] to reveal the type of significant 

clinical and laboratory abnormalities one would expect if the claimant in fact were 

disabled.’ [] The undersigned agrees that Ms. Breland’s opinions were entitled to little 

weight. Not only are they inconsistent with and unsupported by other evidence in the 

record, but like Dr. Harmon-Sheffield’s opinions, they also were conclusory and 

expressed on pre-printed check-off forms.”).

B. Opinion of Treating Physician Dr. Scott Markle. The law in this Circuit 

is clear that an ALJ “’must specify what weight is given to a treating physician’s opinion 

and any reason for giving it no weight, and failure to do so is reversible error.’” Nyberg 

v. Commissioner of Social Security, 179 Fed.Appx. 589, 590-591 (11th Cir. May 2, 2006) 

(unpublished), quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (other 

citations omitted). In other words, “the ALJ must give the opinion of the treating 

physician ‘substantial or considerable weight unless “good cause” is shown to the 

contrary.’” Williams v. Astrue, 2014 WL 185258, *6 (N.D. Ala. Jan. 15, 2014), quoting 

Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (other citation omitted); see 

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Nyberg, supra, 179 Fed.Appx. at 591 (citing to same language from Crawford v. 

Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)). 

Good cause is shown 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). Where the ALJ articulate[s] specific reasons for failing to 

give the opinion of a treating physician controlling weight, and those 

reasons are supported by substantial evidence, there is no reversible error. 

Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].

Gilabert v. Commissioner of Soc. Sec., 396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010) (per

curiam). Most relevant to this case, an ALJ’s articulation of reasons for rejecting a 

treating source’s opinion regarding the extent of a plaintiff’s pain and inability to 

engage in gainful employment must be supported by substantial evidence. See id. 

(“Where the ALJ articulated specific reasons for failing to give the opinion of a treating 

physician controlling weight, and those reasons are supported by substantial evidence, 

there is no reversible error. In this case, therefore, the critical question is whether 

substantial evidence supports the ALJ’s articulated reasons for rejecting Thebaud’s 

RFC.”) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)); D’Andrea v. 

Commissioner of Social Security Admin., 389 Fed.Appx. 944, 947-948 (11th Cir. Jul. 28, 

2010) (per curiam) (same).

In this case, the ALJ specifically determined that “little” weight was due to be 

afforded the assessment of Dr. Markle because that assessment was inconsistent with 

the objective evidence of record, including Markle’s own treatment records. (Tr. 24-25.)

An assessment of the claimant’s condition was performed by C. Scott 

Markle M.D., in March 2013. The claimant reportedly had been treated 

since March 2011 for carpal tunnel syndrome, migraine headaches, and 

fibromyalgia. She reportedly was limited by pain, and physical activity 

would greatly increase her symptoms and distract from tasks. She was 

assessed as unable to perform work activity on a full time basis, and 

reportedly has severe pain limiting her employment. Dr. Markle is 

suppo[sed] to constitute a treating medical source. However, his 

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assessment of the claimant’s functional limitations and incapacity to 

perform fulltime work activity remains inconsistent with his own 

treatment notes and other records indicating her response to treatment. 

Dr. Markle‘s own treatment notes found that she demonstrated normal 

muscle tone and coordination was normal. She also demonstrated full 

strength on motor examination for both upper and lower extremities. She 

demonstrated normal gait. Dr. Markle’s findings in the months prior to 

this assessment are inconsistent with the assessment provided. Similar 

findings were reported in the scheduled visit days after this assessment 

was performed. The claimant continued to demonstrate minimal sensory 

deficit[s] in the right hand, but demonstrated normal muscle tone and 

normal coordination. Motor examination showed full strength in upper 

and lower extremities with normal gait, as found in previous treatment 

visits. Further records of treatment from Mobile Infirmary also fail to 

support the degree of dysfunction assessed by Dr. Markle in the March 

2013 form. The record fails to substantiate the nature and severity of 

functional deficits assessed, and this treating medical source opinion 

evidence is afforded little weight as inconsistent with the full record.

(Id.) 

A review of the transcript reflects that plaintiff has been followed by Dr. Scott 

Markle for bilateral carpal tunnel syndrome, migraine headaches, and fibromyalgia 

since March of 2011. (See Tr. 455.) However, the Court need agree with the ALJ that 

Markle’s own examination findings do not support his assessment that physical activity 

will greatly increase plaintiff’s pain so as to cause distraction from task or total 

abandonment of task and that her pain limits her ability to engage in any and all forms 

of gainful employment on a repetitive, competitive and productive basis. (See Tr. 445 

(“On exam, . . . [c]ranial nerves II-XII are intact. Motor exam shows good strength in 

both upper and lower extremities. Sensory exam shows bilateral positive Tinel’s and a 

positive Phalen’s. Sensory is otherwise intact. Reflexes are 2+ in the bilateral biceps, 

triceps, patellar, and ankles. Toes are downgoing. Romberg is negative. Gait is 

normal.”); Tr. 455 (“There is no facial asymmetry. Facial sensation is intact. The palate is 

upgoing. The tongue is midline. Motor exam shows good strength in both upper and 

lower extremities both proximally and distally. Sensory exam is grossly intact. Reflexes 

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16

are 2+ in the bilateral biceps, triceps, patellar, and ankles. Toes are downgoing. 

Romberg is negative. Gait is normal. . . . I do not see any fasciculations or atrophy of the 

muscles.”); Tr. 723-724 (“Neck: Normal range of motion. . . . Musculoskeletal: Normal 

range of motion. Neurological: She is alert and oriented to person, place, and time. She 

has normal reflexes. A sensory deficit (Right hand in medial distribution) is present. 

No cranial nerve deficit. She exhibits normal muscle tone. Coordination normal. CNIIXII intact. Motor exam shows 5/5 strength in both upper and lower extremities. 

Romberg negative. Normal gait[.] No ataxia on finger nose finger or heel to shin. 

Babinski normal bilateral[.]” (emphasis in original)); Tr. 918 (same). In addition, the 

relevant additional evidence of record does not support Dr. Markle’s assessment 

findings. (See, e.g., Tr. 464 (normal range of neck and musculoskeletal normal range of 

motion); 489 (musculoskeletal stable); 500 (“Musculoskeletal: Negative. Negative for 

myalgias and arthralgias. . . . Neurological: . . . Negative for dizziness, tremors, seizures, 

syncope, facial asymmetry, speech difficulty, weakness, light-headedness and 

numbness.”); 525 (“EXTREMITIES: No clubbing, cyanosis or edema. +2 pulses upper 

and lower extremities.”); 529 (“Neurologic—5/5 strength bilateral upper and lower 

extremities.”); 545 (“Musculoskeletal: Negative for back pain and joint swelling.”); 584 

(description of back pain as mild, 2/10); 586 (“Musculoskeletal: Normal range of 

motion. She exhibits no edema and no tenderness. . . . Neurological: . . . She displays 

normal reflexes. No cranial nerve deficit. She exhibits normal muscle tone. Coordination 

normal.”); 590 (same); 593 (“Extremities: Intact distal pulses, No edema, No tenderness, 

No cyanosis, No clubbing. Musculoskeletal: Good range of motion in all major joints. 

No tenderness to palpation or major deformities noted. Neurologic: Alert & oriented x 

3, Normal motor function, Normal sensory function, No focal deficits noted.”); 625 

(“Musculoskeletal: Negative. Negative for myalgias, back pain and arthralgias.”); 627 

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(“Musculoskeletal: Normal range of motion. She exhibits no edema and no 

tenderness.”); 660 (“Musculoskeletal: . . . Negative for back pain and arthralgias.”); 661 

(“Musculoskeletal: Normal range of motion. She exhibits no edema and no 

tenderness.”); 687 (“Musculoskeletal: Negative for back pain, joint swelling, arthralgias 

and gait problem. . . . Neurological: Negative for dizziness, weakness and headaches.”); 

688 (“Musculoskeletal: Normal range of motion. She exhibits no edema and no 

tenderness. . . . Neurological: . . . She has normal reflexes. No cranial nerve deficit. She 

exhibits normal muscle tone. Coordination normal.”); 698 (“Musculoskeletal: Negative 

for joint swelling, arthralgias and gait problem.”); 699 (“Musculoskeletal: Normal range 

of motion. She exhibits no edema and no tenderness. . . . Neurological: . . . She has 

normal reflexes. No cranial nerve deficit. Coordination normal.”); 708 

(“Musculoskeletal: Negative for myalgias, back pain and arthralgias.”); 709 

(“Musculoskeletal: Normal range of motion. She exhibits no edema and no 

tenderness.”); 741 (“Musculoskeletal: She exhibits no edema. . . . Neurological: No 

cranial nerve deficit. Coordination normal.”); 909 (“Musculoskeletal: Negative for back 

pain and joint swelling.”); 910 (“Musculoskeletal: She exhibits no edema. Neurological: 

No cranial nerve deficit. Coordination normal.”); 914-915 (“EXTREMITIES: No 

clubbing, cyanosis or edema. . . . NEUROLOGIC: Intact.”).) Accordingly, the ALJ did 

not err in according “little” weight to Markle’s assessment as it is inconsistent with the 

objective medical evidence, including Markle’s own examination findings.

In light of the foregoing and because substantial evidence of record supports the 

Commissioner’s determination that Mayle can perform the physical and mental 

requirements of a reduced range of light work as identified by the ALJ (see Tr. 16-17; 

compare id. with Tr. 445-575, 584-595, 622-673, 682-749, 758-851 & 893-918), and plaintiff 

makes no argument that this residual functional capacity would preclude her

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performance of the light jobs identified by the VE during the administrative hearing 

(compare Doc. 11 with Tr. 249-252), the Commissioner’s fifth-step determination is due to 

be affirmed. See, e.g., Owens v. Commissioner of Social Security, 508 Fed.Appx. 881, 883 

(11th Cir. Jan. 28, 2013) (“The final step asks whether there are significant numbers of 

jobs in the national economy that the claimant can perform, given h[er] RFC, age, 

education, and work experience. The Commissioner bears the burden at step five to 

show the existence of such jobs . . . [and one] avenue[] by which the ALJ may determine 

[that] a claimant has the ability to adjust to other work in the national economy . . . [is] 

by the use of a VE[.]”(internal citations omitted)); Land v. Commissioner of Social Security, 

494 Fed.Appx. 47, 50 (11th Cir. Oct. 26, 2012) (“At step five . . . ‘the burden shifts to the 

Commissioner to show the existence of other jobs in the national economy which, given 

the claimant’s impairments, the claimant can perform.’ The ALJ may rely solely on the 

testimony of a VE to meet this burden.” (internal citations omitted)).

CONCLUSION

It is ORDERED that the decision of the Commissioner of Social Security denying 

plaintiff benefits be affirmed.

DONE and ORDERED this the 25th day of November 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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