IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LEA H. FOX, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 15-00190-N

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

Defendant. )

MEMORANDUM OPINION AND ORDER

Social Security Claimant/Plaintiff Lea H. Fox has brought this action under 

42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the 

Defendant Commissioner of Social Security (“the Commissioner”) denying her

applications for disability insurance benefits (“DIB”) under Title II of the Social 

Security Act, 42 U.S.C. § 401, et seq., and supplemental security income (“SSI”) 

under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. With the 

consent of the parties (see Doc. 17), the Court has designated the undersigned 

Magistrate Judge to conduct all proceedings and order the entry of judgment in this 

civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 

73, and S.D. Ala. GenLR 73. (See Doc. 18).

Upon consideration of the parties’ briefs (Docs. 10, 14) and the administrative 

record (Doc. 9) (hereinafter cited as “(R. [page number(s) in lower-right corner of 

transcript])”), 1 the Court finds that the Commissioner’s decision is due to be 

 1 With the Court’s consent, the parties jointly waived the opportunity for oral argument. 

(See Docs. 19, 20).

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AFFIRMED.

I. Background

On April 12, 2012, Fox filed applications for DIB and SSI with the Social 

Security Administration (“SSA”),2 both alleging disability beginning February 2, 

2012.3 (R. 20). After her applications were initially denied, Fox requested a 

hearing, which was held before an Administrative Law Judge (“ALJ”) for the SSA 

on September 24, 2013. (R. 20). On November 20, 2013, the ALJ issued an 

unfavorable decision on Fox’s applications, finding her “not disabled” under the 

Social Security Act. (See R. 17 – 42). 

Fox requested review of the ALJ’s decision by the Appeals Council for the 

SSA’s Office of Disability Adjudication and Review. The Commissioner’s decision on 

Fox’s applications became final when the Appeals Council denied Fox’s request for 

review on March 16, 2015. (R. 1 – 4). On April 8, 2015, Fox filed this action under 

§§ 405(g) and 1383(c)(3) for judicial review of the Commissioner’s final decision. 

 2 “The Social Security Act's general disability insurance benefits program (‘DIB’) 

provides income to individuals who are forced into involuntary, premature 

retirement, provided they are both insured and disabled, regardless of indigence. 

See 42 U.S.C. 423(a). The Social Security Act's Supplemental Security Income (‘SSI’) 

is a separate and distinct program. SSI is a general public assistance measure 

providing an additional resource to the aged, blind, and disabled to assure that 

their income does not fall below the poverty line. Eligibility for SSI is based upon 

proof of indigence and disability. See 42 U.S.C. 1382(a), 1382c(a)(3)(A)-(C).” 

Sanders v. Astrue, Civil Action No. 11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala. 

Sept. 28, 2012).

3 “For SSI claims, a claimant becomes eligible in the first month where she is both 

disabled and has an SSI application on file. 20 C.F.R. § 416.202–03 (2005). For 

DIB claims, a claimant is eligible for benefits where she demonstrates disability on 

or before the last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005).” 

Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).

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(Doc. 1). See 42 U.S.C. § 405(g) (“Any individual, after any final decision of the 

Commissioner of Social Security made after a hearing to which he was a party, 

irrespective of the amount in controversy, may obtain a review of such decision by a 

civil action commenced within sixty days after the mailing to him of notice of such 

decision or within such further time as the Commissioner of Social Security may 

allow.”); 42 U.S.C. § 1383(c)(3) (“The final determination of the Commissioner of 

Social Security after a hearing [for SSI benefits] shall be subject to judicial review 

as provided in section 405(g) of this title to the same extent as the Commissioner's 

final determinations under section 405 of this title.”); Ingram v. Comm'r of Soc. Sec. 

Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law of this Circuit is that 

a court may review, under sentence four of section 405(g), a denial of review by the 

Appeals Council.”).

II. Standard of Review

“In Social Security appeals, [the Court] must determine whether the 

Commissioner’s decision is ‘ “supported by substantial evidence and based on 

proper legal standards. Substantial evidence is more than a scintilla and is such 

relevant evidence as a reasonable person would accept as adequate to support a 

conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 

2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 

2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 

1436, 1439 (11th Cir. 1997))). However, the Court “ ‘may not decide the facts anew, 

reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ ” 

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Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 

(11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 

1233, 1239 (11th Cir. 1983))). “ ‘Even if the evidence preponderates against the 

[Commissioner]’s factual findings, we must affirm if the decision reached is 

supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v. 

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

 “Yet, within this narrowly circumscribed role, [courts] do not act as 

automatons. [The court] must scrutinize the record as a whole to determine if the 

decision reached is reasonable and supported by substantial evidence[.]” 

Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). “In determining 

whether substantial evidence exists, [a court] must...tak[e] into account evidence 

favorable as well as unfavorable to the [Commissioner’s] decision.” Chester v. 

Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Moreover, “[t]here is no 

presumption...that the Commissioner followed the appropriate legal standards in 

deciding a claim for benefits or that the legal conclusions reached were valid. 

Instead, [the court] conduct[s] ‘an exacting examination’ of these factors.” Miles v. 

Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (citing Martin v. Sullivan, 

894 F.2d 1520, 1529 (11th Cir. 1990)) (internal citation omitted). In sum, courts 

“review the Commissioner’s factual findings with deference and the Commissioner’s 

legal conclusions with close scrutiny.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th 

Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per 

curiam) (“In Social Security appeals, we review de novo the legal principles upon 

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which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131 

(11th Cir. 1986). However, we review the resulting decision only to determine 

whether it is supported by substantial evidence. Crawford v. Comm'r of Soc. Sec.,

363 F.3d 1155, 1158–59 (11th Cir. 2004).”). “ ‘The [Commissioner]'s failure to apply 

the correct law or to provide the reviewing court with sufficient reasoning for 

determining that the proper legal analysis has been conducted mandates reversal.’ ” 

Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 

(11th Cir. 1991)).

Eligibility for DIB and SSI requires that the claimant be disabled. 42 

U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if she is 

unable “to engage in any substantial gainful activity by reason of a 

medically determinable physical or mental impairment ... which has 

lasted or can be expected to last for a continuous period of not less than 

12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 609 (11th Cir. Feb. 11, 

2015) (per curiam) (unpublished).4

The Social Security Regulations outline a five-step, sequential 

evaluation process used to determine whether a claimant is disabled: 

(1) whether the claimant is currently engaged in substantial gainful 

activity; (2) whether the claimant has a severe impairment or 

combination of impairments; (3) whether the impairment meets or 

equals the severity of the specified impairments in the Listing of 

Impairments; (4) based on a residual functional capacity (“RFC”) 

assessment, whether the claimant can perform any of his or her past 

relevant work despite the impairment; and (5) whether there are 

significant numbers of jobs in the national economy that the claimant 

can perform given the claimant's RFC, age, education, and work 

experience.

 4 In this Circuit, “[u]npublished opinions are not considered binding precedent, but they 

may be cited as persuasive authority.” 11th Cir. R. 36-2 (effective Dec. 1, 2014). See also

Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases 

printed in the Federal Appendix are cited as persuasive authority.”).

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Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-

(v); Phillips, 357 F.3d at 1237-39).5

“These regulations place a very heavy burden on the claimant to demonstrate 

both a qualifying disability and an inability to perform past relevant work.” Moore, 

405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)). 

“In determining whether the claimant has satisfied this initial burden, the 

examiner must consider four factors: (1) objective medical facts or clinical findings; 

(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the 

claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005 

(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th 

Cir. 1983) (per curiam)). “These factors must be considered both singly and in 

combination. Presence or absence of a single factor is not, in itself, conclusive.” 

Bloodsworth, 703 F.2d at 1240 (citations omitted).

If, in Steps One through Four of the five-step evaluation, a claimant proves 

that he or she has a qualifying disability and cannot do his or her past relevant 

work, it then becomes the Commissioner’s burden, at Step Five, to prove that the 

claimant is capable—given his or her age, education, and work history—of engaging 

in another kind of substantial gainful employment that exists in the national 

economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 

764 F.2d 834, 836 (11th Cir. 1985). Finally, but importantly, although the 

“claimant bears the burden of demonstrating the inability to return to [his or] her 

 5 The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual 

steps of this five-step sequential evaluation.

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past relevant work, the Commissioner of Social Security has an obligation to 

develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). 

“This is an onerous task, as the ALJ must scrupulously and conscientiously probe 

into, inquire of, and explore for all relevant facts. In determining whether a 

claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v. 

Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and 

quotation omitted).

When, as here, “no new evidence is presented to the Appeals Council and it 

denies review, then the administrative law judge’s decision is necessarily reviewed 

as the final decision of the Commissioner...” Ingram, 496 F.3d at 1262.

III. Claims on Judicial Review

1. The ALJ “reversibly erred in failing to assign controlling weight to the 

opinion of [Fox]’s treating physician, Dr. Krishna Pasala, M.D.”

2. The ALJ reversibly erred “in acting as both judge and physician by 

arbitrarily substituting her own medical opinion, without any supporting 

medical opinions or substantial evidence, for the opinion of a medical 

professional...by finding [Fox] can perform light work.”

3. The ALJ reversibly erred “in violation of 20 C.F.R. § 404.1529(b) in failing to 

fulfill her duty to develop the record by ordering a consultative orthopedic 

examination.” 

(Doc. 10 at 1 – 2).

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IV. Analysis

At Step One, the ALJ determined that Fox had “not engaged in substantial 

gainful activity since February 2, 2012, the alleged disability onset date...” (R. 23). 

At Step Two, the ALJ determined that Fox had the following severe impairments: 

multi-level degenerative disc disease of the cervical spine, borderline personality 

disorder, major depressive disorder, and opioid dependence. (R. 23). At Step Three, 

the ALJ found that Fox did not have an impairment or combination of impairments 

that meets or equals the severity of one of the specified impairments in the Listing 

of Impairments. (R. 30). 

At Step Four,

the ALJ must assess: (1) the claimant's residual functional capacity 

(“RFC”); and (2) the claimant's ability to return to her past relevant 

work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the 

regulations define RFC as that which an individual is still able to do 

despite the limitations caused by his or her impairments. 20 C.F.R. § 

404.1545(a). Moreover, the ALJ will “assess and make a finding about 

[the claimant's] residual functional capacity based on all the relevant 

medical and other evidence” in the case. 20 C.F.R. § 404.1520(e). 

Furthermore, the RFC determination is used both to determine 

whether the claimant: (1) can return to her past relevant work under 

the fourth step; and (2) can adjust to other work under the fifth 

step...20 C.F.R. § 404.1520(e).

If the claimant can return to her past relevant work, the ALJ will 

conclude that the claimant is not disabled. 20 C.F.R. § 

404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past 

relevant work, the ALJ moves on to step five.

In determining whether [a claimant] can return to her past relevant 

work, the ALJ must determine the claimant's RFC using all relevant 

medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That 

is, the ALJ must determine if the claimant is limited to a particular 

work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the 

claimant’s RFC and determines that the claimant cannot return to her 

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prior relevant work, the ALJ moves on to the fifth, and final, step.

Phillips, 357 F.3d at 1238-39 (footnote omitted).

The ALJ determined that Fox had the RFC “to perform light work as defined 

in 20 CFR 404.1567(b) and 20 CFR 416.967(b)[6] except [she] cannot perform 

overhead reaching bilaterally, she can perform only occasional pushing and pulling 

with the upper extremities, she is precluded from working with ladders, ropes, or 

scaffolds, at unprotected heights, and around dangerous equipment, she cannot 

operate a commercial vehicle, she is able to attend and concentrate for two hours at 

one time before needing a break, she is able to adapt to occasional changes in work 

settings and routines, she is able to understand, remember, and carry out short, 

simple work instructions and able to make judgments regarding simple workrelated decisions but detailed work instructions are precluded, she cannot interact 

with the public, co-workers, and supervisors more than occasionally, and her time 

off tasks could be accommodated by normal breaks.” (R. 32). Based on this RFC, 

the ALJ determined that Fox was “unable to perform any of her past relevant 

work...” (R. 40). At Step Five, the ALJ then determined that there exist significant 

numbers of jobs in the national economy that Fox can perform given her RFC, age,

 6 “To determine the physical exertion requirements of different types of employment in the 

national economy, the Commissioner classifies jobs as sedentary, light, medium, heavy, and 

very heavy. These terms are all defined in the regulations ... Each classification ...has its 

own set of criteria.” Phillips, 357 F.3d at 1239 n.4. “Light work involves lifting no more 

than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 

pounds. Even though the weight lifted may be very little, a job is in this category when it 

requires a good deal of walking or standing, or when it involves sitting most of the time 

with some pushing and pulling of arm or leg controls. To be considered capable of 

performing a full or wide range of light work, [a claimant] must have the ability to do 

substantially all of these activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b).

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education, and work experience – specifically, mail clerk/sorter, house sitter, and 

assembler of small products. (R. 41 – 42). Thus, the ALJ found that Fox was not 

disabled under the Social Security Act. (R. 42).

A. Claim 1

Evidence considered by the Commissioner in making a disability 

determination may include medical opinions. See 20 C.F.R. §§ 404.1527(a)(2) & 

416.927(a)(2). “ ‘Medical opinions are statements from physicians and psychologists 

or other acceptable medical sources that reflect judgments about the nature and 

severity of [the claimant's] impairment(s), including [the claimant’s] symptoms, 

diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and 

[the claimant's] physical or mental restrictions.’ ” Winschel, 631 F.3d at 1178-79 

(quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)). “There are three tiers of 

medical opinion sources: (1) treating physicians; (2) nontreating, examining 

physicians; and (3) nontreating, nonexamining physicians.” Himes v. Comm'r of 

Soc. Sec., 585 F. App'x 758, 762 (11th Cir. Sept. 26, 2014) (per curiam) 

(unpublished) (citing 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2)). “In 

assessing medical opinions, the ALJ must consider a number of factors in 

determining how much weight to give to each medical opinion, including (1) 

whether the physician has examined the claimant; (2) the length, nature, and 

extent of a treating physician's relationship with the claimant; (3) the medical 

evidence and explanation supporting the physician’s opinion; (4) how consistent the 

physician’s opinion is with the record as a whole; and (5) the physician’s 

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specialization. These factors apply to both examining and non-examining 

physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523 (11th Cir. 

Sept. 30, 2014) (per curiam) (unpublished) (internal citations and quotation marks 

omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)). 

The ALJ “may reject the opinion of any physician when the evidence supports 

a contrary conclusion.” Bloodsworth, 703 F.2d at 1240. Accord, e.g., Anderson v. 

Comm'r of Soc. Sec., 427 F. App'x 761, 763 (11th Cir. 2011) (per curiam) 

(unpublished). However, 

the ALJ must state with particularity the weight given to different 

medical opinions and the reasons therefor. Sharfarz v. Bowen, 825 

F.2d 278, 279 (11th Cir. 1987) (per curiam). “In the absence of such a 

statement, it is impossible for a reviewing court to determine whether 

the ultimate decision on the merits of the claim is rational and 

supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d 731, 

735 (11th Cir. 1981). Therefore, when the ALJ fails to “state with at 

least some measure of clarity the grounds for his decision,” we will 

decline to affirm “simply because some rationale might have supported 

the ALJ's conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516 (11th 

Cir.1984) (per curiam). In such a situation, “to say that [the ALJ’s] 

decision is supported by substantial evidence approaches an abdication 

of the court's duty to scrutinize the record as a whole to determine 

whether the conclusions reached are rational.” Cowart, 662 F.2d at 735 

(quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979)) 

(internal quotation marks omitted).

Winschel, 631 F.3d at 1179.

“A ‘treating source’ (i.e., a treating physician) is a claimant's ‘own physician, 

psychologist, or other acceptable medical source who provides[], or has provided[],[ 

the claimant] with medical treatment or evaluation and who has, or has had, an 

ongoing treatment relationship with [the claimant].’ ” Nyberg v. Comm'r of Soc. 

Sec., 179 F. App'x 589, 591 (11th Cir. May 2, 2006) (per curiam) (unpublished) 

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(quoting 20 C.F.R. § 404.1502). “Absent ‘good cause,’ an ALJ is to give the medical 

opinions of treating physicians ‘substantial or considerable weight.’ ” Winschel, 631 

F.3d at 1179 (quoting Lewis, 125 F.3d at 1440). That is so because treating sources 

are likely in a better position “to provide a detailed, longitudinal picture of [a 

claimant’s] medical impairment(s) and may bring a unique perspective to the 

medical evidence that cannot be obtained from the objective medical findings alone 

or from reports of individual examinations, such as consultative examinations or 

brief hospitalizations.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). “Good cause 

exists ‘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.’ With good cause, 

an ALJ may disregard a treating physician's opinion, but he ‘must clearly articulate 

[the] reasons’ for doing so.” Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d 

at 1240-41) (internal citation omitted). See also, e.g., Bloodsworth, 703 F.2d at 1240 

(“[T]he opinion of a treating physician may be rejected when it is so brief and 

conclusory that it lacks persuasive weight or where it is unsubstantiated by any 

clinical or laboratory findings. Further, the Secretary may reject the opinion of any 

physician when the evidence supports a contrary conclusion.” (citation omitted)).

Fox argues that the ALJ reversibly erred in assigning less than substantial 

weight to the opinion of treating physician Dr. Pasala, presented in a Clinical 

Assessment of Pain Form dated September 12, 2013 (R. 1025 – 1026 [SSA Ex. 33F]). 

The ALJ summarized Dr. Pasala’s opinion as follows:

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On September 12, 2013, the claimant’s primary care physician, Dr. 

Krishna Pasala, completed a Clinical Assessment of Pain Form on the 

claimant’s behalf. In that form, Dr. Pasala stated that she had been 

treating the claimant for six months for cervical disc herniation. Dr. 

Pasala opined that the claimant’s pain would distract the claimant 

from adequately performing daily activities or work, and that physical 

activity, such as walking, standing, bending, stooping, moving of 

extremities, etc., would greatly increase the claimant’s level of pain 

and cause distraction from task or total abandonment of task. Dr. 

Pasala further opined that the claimant’s pain and/or drug side effects 

could be expected to be severe and to limit effectiveness due to 

distraction, inattention, or drowsiness. Finally, Dr. Pasala opined that 

the claimant was unable to engage in any form of gainful employment 

on a repetitive, competitive and productive basis over an eight hour 

work day, forty hours a week, without missing more than 2 days of 

work per month or experiencing frequent interruptions to her work 

routine due to symptoms of her disease or medical problems. (Exhibit 

33F).

(R. 27). Fulfilling the requirement that she “state with particularity the weight 

given to [Dr. Pasala’s] medical opinions and the reasons therefor[,]” Winschel, 631 

F.3d at 1179, the ALJ “assigned those opinions little evidentiary weight,” 

explaining:

The undersigned notes that the claimant’s pain was a factor in limiting 

the claimant to the performance of simple, unskilled work. However, 

Dr. Pasala’s opinions of the severity of the claimant’s pain are not 

supported by her own clinical examination findings or by the other 

objective medical evidence of record. Dr. Pasala’s treatment notes all 

show that the claimant had normal range of motion on physical 

examination that was limited only by her complaints of pain. This is a 

subjective factor not an objective finding. On April 17, 2013, Dr. 

Pasala noted that the claimant had neck pain, but that she was 

“negative for back pain, joint pain, joint swelling and muscle 

weakness.” Dr. Pasala’s treatment note for that visit shows no pain 

anywhere on physical examination of the claimant. On June 12, 2013, 

the claimant complained of back pain, joint pain, and neck pain, but 

her physical examination show [sic] no clinical findings to corroborate 

said complaints of pain. It seems reasonable to expect that Dr. 

Pasala’s treatment notes and particularly her recorded clinical 

examination findings would reflect severe abnormalities given the 

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claimant’s allegation of pain so severe and debilitating that she is 

unable to work. (Exhibit 30F [R. 987 – 1022]). Dr. Pasala’s treatment 

records contain essentially no significant abnormal objective medical 

findings to support an allegation of pain of such severity as to be 

distracting to the adequate performance of daily activities or work or 

that would cause the claimant to miss more than two days of work per 

month.

Dr. Pasala’s opinions in the pain form are also unsupported by the 

other objective medical evidence of record. For example, MRI and CT 

scans of the claimant’s cervical spine have shown that the claimant’s 

cervical degenerative disc disease is no more than mild to moderate in 

nature and the imaging studies have failed to document the existence 

of any significant neural foraminal stenosis or nerve root compression. 

(Exhibits 8F at pages 100 [R. 553] and 139 [R. 592]; and 31F [R. 1023]). 

Likewise, physical examinations by the claimant’s other treating 

physicians have failed to document clinical findings to indicate severe 

pain or functional limitation. Dr. Dempsey’s physical examinations of 

the claimant from September 2012 through June 2013 showed no more 

than mildly diminished range of motion in the claimant’s cervical 

spine. All other aspects of his physical examinations of the claimant 

were consistently normal within that time period. Moreover, on 

November 19, 2012, Dr. Dempsey stated that the claimant’s pain was 

not in line with what he was seeing on the imaging studies. (Exhibits 

22F [R. 903 – 908] and 27F [R. 915 – 926]).

(R. 35).

Thus, the ALJ expressly determined that Dr. Pasala’s opinions were (1) 

inconsistent with her own medical records and (2) not bolstered by the evidence, 

pointing to specific portions of the record in explaining each of these 

determinations. Fox agrees that these were the ALJ’s reasons for rejecting the 

opinion. (See Doc. 10 at 3 (“The Administrative Law Judge stated that the opinion 

of Dr. Pasala was not supported by his own clinical examination findings or by the 

other objective medical evidence of record.” (citing R. 35)). Though either one of 

these reasons, standing alone, would provide sufficient “good cause” to assign less 

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than substantial or considerable weight to the opinion, see Winschel, 631 F.3d at

1179, Fox addresses only the latter in her brief, claiming that the opinion “is 

supported by the objective medical evidence of record.”7 (Doc. 10 at 3). Even 

assuming that this is true, Fox’s failure to contest the ALJ’s other reason for 

discounting the opinion is in itself fatal to this claim of error.8

Regardless, none of “the objective medical evidence of record” Fox cites in 

support of Claim 1 gives the Court reason to question the ALJ’s articulated good 

cause for rejecting Dr. Pasala’s opinion. At most, the evidence Fox cites shows some 

history of pain. However, the ALJ was rejecting Dr. Pasala’s opinions as to “the 

severity of [Fox]’s pain,” not the existence of that pain. The ALJ correctly observed 

 7 Fox’s failure to address the inconsistency of Dr. Pasala’s opinion with her own treatment 

notes is confirmed by the fact that, despite summarizing the “objective medical evidence of 

record” for almost three pages, she never once cites to any of Dr. Pasala’s treatment notes, 

located at SSA Exhibit 30F (R. 987 – 1022). (See Doc. 10 at 4 – 6).

8 In an appeal to the Eleventh Circuit Court of Appeals, “[t]o obtain reversal of a district 

court judgment that is based on multiple, independent grounds, an appellant must convince 

[the court] that every stated ground for the judgment against him is incorrect. When an 

appellant fails to challenge properly on appeal one of the grounds on which the district 

court based its judgment, he is deemed to have abandoned any challenge of that ground, 

and it follows that the judgment is due to be affirmed.” Sapuppo v. Allstate Floridian Ins. 

Co., 739 F.3d 678, 680 (11th Cir. 2014). This Court does not hesitate to apply such a rule 

when reviewing a final decision of the Commissioner under § 405(g), often characterized as 

a “Social Security appeal.” While this Court has a duty not “to rubber stamp the 

administrative decisions that come before” it, it is not the Court’s duty to “conduct a de novo 

proceeding...” Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam). Given 

that this Court must “give substantial deference to the Commissioner’s decision[,]” e.g., 

Dyer v. Barnhart, 395 F.3d 1206, 1212 (11th Cir. 2005) (per curiam), it is the claimant’s 

burden to set forth specific reasons why such deference should not be given. See also

Greenlaw v. United States, 554 U.S. 237, 243-44 (2008) (“In our adversary system, in both 

civil and criminal cases, in the first instance and on appeal, we follow the principle of party 

presentation. That is, we rely on the parties to frame the issues for decision and assign to 

courts the role of neutral arbiter of matters the parties present ... [A]s a general rule, our 

adversary system is designed around the premise that the parties know what is best for 

them, and are responsible for advancing the facts and arguments entitling them to relief.”

(quotation omitted)).

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16

that Dr. Pasala’s treatment notes “contain essentially no significant abnormal 

objective medical findings,” instead showing “normal range of motion on physical 

examination that was limited only by [Fox’s] complaints of pain.”9 See Freeman v. 

Barnhart, 220 F. App'x 957, 960 (11th Cir. Mar. 23, 2007) (per curiam) 

(unpublished) (“Two factors that may weigh in favor of discounting a treating 

physician’s opinion are when the opinion is inconsistent with the physician's own 

treatment notes and when the opinion appears to be based primarily on the 

claimant's subjective complaints of pain.” (citing Crawford, 363 F.3d at 1159)); 

Social Security Ruling 96-2P, 1996 WL 374188 (July 2, 1996) (“The adjudicator 

must find that the treating source’s medical opinion is ‘well-supported’ by ‘medically 

acceptable’ clinical and laboratory diagnostic techniques. The adjudicator cannot 

decide a case in reliance on a medical opinion without some reasonable support for 

the opinion ... Even if well-supported by medically acceptable clinical and 

laboratory diagnostic techniques, the treating source’s medical opinion also must be 

‘not inconsistent’ with the other ‘substantial evidence’ in the individual's case 

record.” (emphasis added)). Moreover, as the ALJ correctly noted, Dr. Pasala’s 

opinions were inconsistent with the treatment notes and opinions of Dr. Dempsey, 

another of Fox’s treating physicians. As the Commissioner’s brief correctly notes 

(see Doc. 14 at 9), between August 2012 and June 2013, Dr. Dempsey consistently 

noted Fox as having a full range of motion in her cervical spine, interspersed with 

 9 When asked to provide “any clinical or laboratory findings to support” her opinions, Dr. 

Pasala cited only an “MRI of cervical spine” from “2/2012.” (R. 1025). While this MRI did 

show some cervical abnormality (“C5-C6, broad based disc bulge and C6-7, right central 

disk extrusion”), it was performed at a hospital emergency room by another physician on 

February 23, 2012, over a year before Dr. Pasala first began treating Fox. (R. 545, 553). 

Case 1:15-cv-00190-N Document 23 Filed 04/20/16 Page 16 of 25
17

occasional diagnoses of “mildly diminished” (75%) range of motion. Dr. Dempsey 

also opined that Fox’s “pain was not in line with what we are seeing on imaging 

studies.” (R. 923). In sum, substantial evidence supports the ALJ’s decision to 

assign little weight to Dr. Pasala’s opinions.

For these reasons, the Court OVERRULES Fox’s assertions of reversible 

error in Claim 1.

B. Claim 2

In Claim 2, Fox asserts that, because the ALJ did not assign controlling 

weight to Dr. Pasala’s opinion, and assigned only some weight to the opinions of a 

state agency medical consultant, the ALJ’s RFC “does not fully reflect the opinion 

and limitations of [those physicians], and thus, is not based on substantial 

evidence.” (Doc. 10 at 9). Fox also asserts the ALJ erred because she “merely chose 

the limitations that she thought to be relevant without establishing a link between 

the medical evidence of record and the adopted” RFC. (Id.). The Court construes 

these arguments as asserting (1) the ALJ is required to adopt at least one medical 

opinion in formulating an RFC, and (2) the ALJ did not sufficiently show her work 

in formulating Fox’s RFC.

The Court rejects both assertions. While the Social Security regulations 

require ALJs to consider all medical opinions in the record when making a 

disability determination, see 20 C.F.R. §§ 404.1527(b) & 416.927(b), “[n]othing in 

the regulations requires the ALJ to accept at least one medical opinion before 

rendering a decision—indeed, an ALJ may make a disability determination without 

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any medical opinion in the record.” Hale v. Colvin, Civil Action No. 14-00222-CG-N, 

2015 WL 3397939, at *11 (S.D. Ala. Apr. 24, 2015) (Nelson, M.J.), report and 

recommendation adopted, 2015 WL 3397628 (S.D. Ala. May 26, 2015) (Granade, J.). 

See also Packer v. Astrue, Civil Action No. 11-0084-CG-N, 2013 WL 593497, at *3 

(S.D. Ala. Feb. 14, 2013) (Granade, J.) (“[T]he ALJ is not precluded from making a 

proper RFC determination in the absence of an opinion from an acceptable medical 

source.” (quotation omitted)), aff'd, Packer v. Comm'r, Soc. Sec. Admin., 542 F. 

App’x 890 (11th Cir. Oct. 29, 2013) (per curiam) (unpublished); Chapo v. Astrue, 

682 F.3d 1285, 1288 (10th Cir. 2012) (“[T]here is no requirement in the regulations 

for a direct correspondence between an RFC finding and a specific medical opinion 

on the functional capacity in question. The ALJ, not a physician, is charged with 

determining a claimant's RFC from the medical record.” (quotation omitted)); 20 

C.F.R. §§ 404.1527(a)(2) & 416.927(a)(2) (“Evidence that you submit or that we 

obtain may contain medical opinions.” (emphasis added)); 20 C.F.R. §§ 404.1546 &

416.946 (“If your case is at the administrative law judge hearing level ... , the 

administrative law judge ... is responsible for assessing your residual functional 

capacity.”). The ALJ properly assigned little weight to Dr. Pasala’s opinion, see 

supra, and Fox has asserted no error in the weight assigned to the state agency 

consultant’s opinion.10 Accordingly, the ALJ was not required to “fully reflect” 

either of those opinions in the RFC.

 10 Moreover, the opinion of a non-examining physician “is entitled to little weight and taken 

alone does not constitute substantial evidence to support an administrative decision.” E.g.,

Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990) (per curiam).

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“A clear articulation of both fact and law is essential to our ability to conduct 

a review that is both limited and meaningful.” Owens v. Heckler, 748 F.2d 1511, 

1514-15 (11th Cir. 1984) (per curiam). See also Freeman v. Barnhart, 220 F. App'x 

957, 959-60 (11th Cir. Mar. 23, 2007) (per curiam) (unpublished) (“The ALJ has a 

duty to make clear the weight accorded to each item of evidence and the reasons for 

the decision so that a reviewing court will be able to determine whether the 

ultimate decision is based on substantial evidence.” (citing Cowart v. Schweiker,

662 F.2d 731, 735 (11th Cir. 1981))). Nevertheless, “there is no rigid requirement 

that the ALJ specifically refer to every piece of evidence in his decision, so long as 

the ALJ’s decision ... is not a broad rejection which is not enough to enable the 

district court ... to conclude that the ALJ considered her medical condition as a 

whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam) 

(quotation omitted). In formulating the RFC at Step Four, the ALJ thoroughly 

discussed and weighed the evidence of record and drew conclusions from that 

evidence. Apart from the weight the ALJ assigned the two above-mentioned 

medical opinions, Fox points to no evidence the ALJ allegedly incorrectly or 

insufficiently assessed. Rather, she appears to assert only that the ALJ failed to 

adequately show her work in applying Social Security Ruling 96-8p. However, both 

this Circuit and others have repeatedly rejected similar contentions that an ALJ’s 

failure to expressly show his or her work under SSR 96-8p is automatic grounds for 

reversal. See Freeman, 220 F. App'x at 959-60 (“Freeman contends that the ALJ 

failed to identify her functional limitations and work-related abilities on a functionCase 1:15-cv-00190-N Document 23 Filed 04/20/16 Page 19 of 25
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by-function basis ... While the ALJ could have been more specific and explicit in his 

findings, he did consider all of the evidence and found that it did not support the 

level of disability Freeman claimed. Only after he determined that she failed to 

carry her burden of showing that she had become disabled from performing any of 

her work-related activities did he state that she could perform light exertional 

activity. Therefore, the ALJ complied with SSR 96–8p by considering Freeman's 

functional limitations and restrictions and, only after he found none, proceeding to 

express her residual functional limitations in terms of exertional levels. 

Furthermore, the ALJ’s analysis of the evidence and statement that Freeman could 

perform light work indicated how much work-related activity she could perform 

because ‘light work requires standing or walking, off and on, for a total of 

approximately 6 hours of an 8–hour workday.’ SSR 83–10.”); Castel v. Comm'r of 

Soc. Sec., 355 F. App'x 260, 263 (11th Cir. Nov. 30, 2009) (“Castel argues that the 

ALJ reached an RFC determination without going through a function-by-function 

analysis. Specifically, Castel claims that the ALJ did not perform the function-byfunction analysis to determine Castel's ability to handle strength demands. This 

argument is unfounded. []The ALJ made a determination of Castel's RFC at step 

four of the function-by-function analysis. The ALJ considered two disability 

examiners' reports, Castel's testimony, and two Disability Determination Services’ 

(‘DDS’) reports in arriving at Castel's RFC. See SSR 96–8p ... (advising that the 

RFC assessment must consider all relevant evidence, including medical history, 

medical evaluations, daily activities, and lay evidence). The ALJ ultimately decided 

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21

that Castel was capable of medium exertion level work and thus was capable of 

performing past relevant work ... We do not require the ALJ to ‘specifically refer to 

every piece of evidence in his decision,’ so long as the decision is sufficient to allow 

us to conclude that the ALJ considered the claimant's medical condition as a whole. 

Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam). The ALJ 

found that the medium level work determination was consistent with the medical 

evidence and found Castel’s RFC to be at a medium level of work. The ALJ 

performed a proper RFC function analysis, based on substantial evidence, and we 

shall defer to his conclusions.”); Carson v. Comm'r of Soc. Sec., 440 F. App'x 863, 

864 (11th Cir. Sept. 21, 2011) (per curiam) (unpublished) (“Following [SSR 96-8p’s 

‘function-by-function’] rubric, the ALJ fully discussed and evaluated the medical 

evidence, Mr. Carson’s testimony, and the effect each impairment has on his daily 

activities. []While, the ALJ did not specifically refer to Mr. Carson’s ability to walk 

or stand, the ALJ did limit Mr. Carson’s exertional level of work to ‘light work.’ 

‘Light work’ by definition limits the amount an individual can walk or stand for 

approximately six hours in an eight-hour work day. See SSR 83–10, 1983 WL 31251

(S.S.A.). Furthermore, the ALJ’s thorough evaluation of Mr. Carson’s case led the 

ALJ to adopt additional limitations to Mr. Carson's ability to perform light work. 

Simply because the ALJ chose not to adopt further limitations on Mr. Carson's 

ability to walk or stand, does not mean the ALJ did not properly consider the 

alleged limitations.”); Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (“Where 

an ALJ’s analysis at Step Four regarding a claimant’s functional limitations and 

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22

restrictions affords an adequate basis for meaningful judicial review, applies the 

proper legal standards, and is supported by substantial evidence such that 

additional analysis would be unnecessary or superfluous, we agree with our sister 

Circuits that remand is not necessary merely because an explicit function-byfunction analysis was not performed.” (citing Zatz v. Astrue, 346 F. App’x 107, 111 

(7th Cir. Oct. 5, 2009) (per curiam) (unpublished); Bayliss v. Barnhart, 427 F.3d 

1211, 1217 (9th Cir. 2005); Depover v. Barnhart, 349 F.3d 563, 567–68 (8th Cir.

2003); Delgado v. Comm'r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. Mar. 4, 2002)

(per curiam) (unpublished)); Chavez v. Astrue, 276 F. App'x 627, 627-28 (9th Cir. 

May 1, 2008) (per curiam) (unpublished) (“Chavez claims that the ALJ committed 

legal error by determining his mental residual functional capacity without 

performing a function-by-function assessment as required by Social Security Ruling 

96-8p, 1996 WL 374184, at *3 (July 2, 1996). This claim fails because the ALJ 

considered and noted ‘all of the relevant evidence’ bearing on Chavez's ‘ability to do 

work-related activities,’ as required by the function-by-function analysis. See Soc. 

Sec. Ruling 96-8p, 1996 WL 374184, at *3.”); Hendron v. Colvin, 767 F.3d 951, 956-

57 (10th Cir. 2014) (rejecting claimant’s contention that the ALJ’s “RFC is not in 

the proper form” because the ALJ did not “separately discuss and make findings 

regarding her abilities to sit, stand, walk, lift, carry, push, or pull” (citing Keyes–

Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012) (“Where, as here, we can 

follow the adjudicator’s reasoning in conducting our review, and can determine that 

correct legal standards have been applied, merely technical omissions in the ALJ's 

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23

reasoning do not dictate reversal. In conducting our review, we should, indeed must, 

exercise common sense.... [W]e cannot insist on technical perfection.”))).

Accordingly, the Court OVERRULES Fox’s assertions of error in Claim 2.

C. Claim 3

“[T]he ALJ has a basic obligation to develop a full and fair record,” 

Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.1997) (per curiam), 

which requires him to “order a consultative examination when such an 

evaluation is necessary for him to make an informed decision,” 

Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir.1988) (internal 

quotation marks omitted). Where the record contains sufficient 

evidence to allow an informed decision, however, the duty to fully and 

fairly develop the record does not impose the requirement to order a 

consultative examination. See Ingram v. Comm'r of Soc. Sec. Admin.,

496 F.3d 1253, 1269 (11th Cir.2007).

Johnson v. Comm'r, Soc. Sec. Admin., 618 F. App'x 544, 551 (11th Cir. July 9, 2015)

(per curiam) (unpublished). See also 20 C.F.R. §§ 404.1519a(b), § 416.919a(b) (“We 

may purchase a consultative examination to try to resolve an inconsistency in the 

evidence, or when the evidence as a whole is insufficient to allow us to make a 

determination or decision on your claim. Some examples of when we might purchase 

a consultative examination to secure needed medical evidence, such as clinical 

findings, laboratory tests, a diagnosis, or prognosis, include but are not limited to: 

(1) The additional evidence needed is not contained in the records of your medical 

sources; (2) The evidence that may have been available from your treating or other 

medical sources cannot be obtained for reasons beyond your control, such as death 

or noncooperation of a medical source; (3) Highly technical or specialized medical 

evidence that we need is not available from your treating or other medical sources; 

Case 1:15-cv-00190-N Document 23 Filed 04/20/16 Page 23 of 25
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or (4) There is an indication of a change in your condition that is likely to affect your 

ability to work, but the current severity of your impairment is not established.”).

Here, Fox asserts that her “diagnosis of multi-level degenerative disc disease 

of the cervical spine, in combination with the Administrative Law Judge assigning 

less than controlling weight to the opinions of [Fox]’s treating physician, triggered 

the Administrative Law Judge’s duty to develop the record by ordering a 

consultative orthopedic examination.” (Doc. 10 at 11). In essence, this is another 

way of asserting that the ALJ must accept at least one medical opinion before 

making a disability determination, a proposition that the Court has already 

rejected, see supra. Regardless, the record contains more than sufficient medical 

evidence regarding Fox’s cervical spine impairments allowing for an informed 

decision from the ALJ, including the treatment notes of two treating physicians, Dr. 

Pasala and Dr. Dempsey. See McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011) 

(“McCoy also argues that the ALJ erred by failing to develop the record on whether 

McCoy did, in fact, have a sustained disturbance in gross movement or gait and 

station. However, this argument mischaracterizes the ALJ’s burden. While an ALJ 

does have a duty to develop the record, this duty is not never-ending and an ALJ is 

not required to disprove every possible impairment. The ALJ is required to order 

medical examinations and tests only if the medical records presented to him do not 

give sufficient medical evidence to determine whether the claimant is disabled. 

Here there was voluminous evidence documenting the effects of McCoy's 

Parkinson's disease and the ALJ’s decision that McCoy had no sustained 

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disturbance in gross movement or station and gait was supported by substantial 

evidence.” (citations omitted)).11

 Accordingly, the Court OVERRULES Fox’s assertions of error in Claim 3 

and finds that the Commissioner’s final decision is due to be AFFIRMED.

V. Conclusion

In accordance with the foregoing analysis, it is ORDERED that the 

Commissioner’s final decision issued March 16, 2015, denying Fox’s applications for 

DIB and SSI benefits is AFFIRMED under 42 U.S.C. §§ 405(g) and 1383(c)(3).

Final judgment shall issue separately in accordance with this Order and 

Federal Rule of Civil Procedure 58.

DONE and ORDERED this the 20th day of April 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

 11 Fox complains that her counsel “requested an orthopaedic consultative examination” but 

that the ALJ “did not address or otherwise evaluate” the request, either at the hearing or in 

her decision. (Doc. 10 at 9 – 10). Notwithstanding the Court’s determination that the ALJ 

was not required to order a consultative examination, the ALJ has discretion to determine 

the best way to resolve any inconsistency or insufficiency in the evidence, which may 

include ordering a consultative examination. See 20 C.F.R. §§ 404.1520b(c), 416.920b(c).

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