IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CLARISSA L. PHALO, :

Plaintiff, :

vs. : CA 15-0294-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), seeking judicial review 

of a final decision of the Commissioner of Social Security denying her claim for 

disability insurance benefits. 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. 

(Doc. 11 (“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 postjudgment proceedings.”); see also Doc. 12 (endorsed order of reference).) Upon 

consideration of the administrative record, plaintiff’s brief, the Commissioner’s brief,

and the arguments of counsel at the March 30, 2016 hearing before the Court, it is 

determined that the Commissioner’s decision denying benefits should be affirmed.

1

 

 1 Any appeal taken from this memorandum opinion and order and judgment shall 

be made to the Eleventh Circuit Court of Appeals. (See Doc. 11 (“An appeal from a judgment 

entered by a magistrate judge shall be taken directly to 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.”))

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Plaintiff alleges disability due to status-post cerebrovascular accident, neck pain 

of unknown etiology, diabetes mellitus, peripheral neuropathy, obesity, carpal tunnel 

syndrome, a headache disorder, uterine fibroids, and peripheral vascular disease. 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, 2014.

2. The claimant has engaged in substantial gainful activity for a 

portion of the time since June 30, 2009, the alleged onset date (20 CFR

404.1571 et seq.).

The evidence of record establishes that the claimant was hired by 

Employment Liability Management, Inc., in August 2012. She earned 

$2,008 in the third quarter of 2012, $9,486 in the fourth quarter of 2012, and 

$6,193 in the first quarter of 2013. At the hearing, the claimant testified 

that she was paid $15 per hour but only worked part time and stopped 

that work in March 2013. Based on her testimony, in order to earn $9,486 

in the fourth quarter of 2012, at $15.00 per hour[,] the claimant would have 

to average 48 hours per week during the thirteen weeks of the fourth 

quarter of 2012.

Because this work occurred over the span of seven months, it [does] not 

meet the criteria of an unsuccessful work attempt. However, because this 

work does not cover the entire relevant period, I proceed with the fivestep analysis.

3. The claimant has the following severe impairments: status-post 

cerebrovascular accident, neck pain of uncertain etiology, diabetes 

mellitus, peripheral neuropathy, obesity, carpal tunnel syndrome, a 

headache disorder, uterine fibroids, and peripheral vascular disease (20 

CFR § 404.1520(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, and 404.1526).

. . .

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

claimant has the residual functional capacity to perform less than a full 

range of sedentary work as defined in 20 CFR 404.1567(a). The claimant 

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can lift and carry 10 pounds occasionally and items of negligible weight 

frequently. She can stand and/or walk for a total of 2 hours in an eighthour day, but no more than 20 minutes at one time. She can sit for a total 

of 8 hours in an eight-hour day, but no more than 1 hour at a time. She 

can frequently push and/or pull with the right upper extremity, but can 

occasionally push and/or pull with the left upper extremity. She can 

frequently push and/or pull with the right lower extremity, but can 

occasionally push and/or pull with the left lower extremity. She is 

precluded from balancing but can occasionally stoop, occasionally 

kneel, occasionally crouch, occasionally crawl, and occasionally climb 

ramps and stairs. She is precluded from climbing ladders, ropes, or 

scaffolds. She can frequently reach, bilaterally; frequently handle, 

bilaterally; frequently finger, bilaterally; and frequently feel, 

bilaterally. She can tolerate occasional exposure to vibrations, 

occasional exposure to extreme heat, occasional exposure to extreme 

cold, and occasional exposure to humidity. She must avoid all exposure 

to unprotected heights and avoid all exposure to dangerous machinery.

She would have one unscheduled absence per month.

In making this finding, I have considered all symptoms and the extent to 

which these symptoms can reasonably be accepted as consistent with the 

objective medical evidence and other evidence, based on the requirements 

of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. I have also considered 

opinion evidence in accordance with the requirements of 20 CFR 404.1527 

and SSRs 96-2p, 96-5p, 96-6p and 06-3p.

. . .

The evidence of record indicates that the claimant experienced a transient 

ischemic attack (TIA) in May 2008. At that time, she also received 

diagnoses of diabetes mellitus and obesity. A magnetic resonance image 

(MRI) of her neck showed normal carotids but moderate proximate 

stenosis in her left vertebral artery. However, an MRI of her brain, an xray of her chest, and an electrocardiogram (EKG) revealed normal 

findings. Notes also indicate that due to her obesity, she was counseled 

about her diet.

Occupational therapy records from June and July 2008 note the claimant’s 

cerebrovascular accident (CVA) from [May] 2008 and indicate that she 

had hemiparesis. Those records indicate that the claimant had severe pain 

on June 11, had numbness in her fingertips but no pain on June 18, was 

able to perform upper extremity exercises, and had better control of her 

left upper extremity.

June 2009 records from Infirmary West note examination findings that 

include elevated glucose, yet normal extremities. The claimant was 

diagnosed with a tooth abscess, uncontrolled diabetes mellitus, a history 

of CVA, and morbid obesity. Office treatment records from Franklin 

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Primary Health Center from October 2009 to December 2010 note that the 

claimant generally presented for follow-up treatment. She was diagnosed 

with diabetes mellitus and a history of CVA. Examinations revealed 

obesity, but otherwise her examination[s] were generally normal and she 

indicated that her overall health was fair. Office treatment records from 

IMC Obstetrics & Gynecology noted generally normal physical 

examination findings other than obesity.

The evidence of record includes treatment notes from August 2001 to May 

2011 from Mobile Adult Care. The claimant generally presented with 

complaints of radiating arm pain. Examinations during the period of 

adjudication, however, revealed obesity but also that the claimant had a 

full range of motion. She was diagnosed with cervicalgia, diabetes 

mellitus, and hemiplegia on her non-dominant side. July 2008 records note 

that the claimant’s CVA and diabetes mellitus were stable, while October 

2010 and April 2011 notes indicate that the claimant had a normal gait, as 

well as no cyanosis, edema, or clubbing in her extremities. May 2011 

records note elevated glucose levels and a diagnosis of diabetes mellitus. 

May 2011 emergent records from Infirmary West note that the claimant 

presented with complaints of a toothache but an examination was 

otherwise normal. Likewise, July 2011 records from Franklin Primary note 

despite diagnoses of diabetes mellitus and a history of CVA, an 

examination was essentially normal other than the claimant’s obesity.

In August 2011, the claimant underwent a consultative examination of 

internal medicine performed by Thomas H. Wyatt, M.D. At that time, she 

complained of weakness in her left arm and leg. Though she received 

diagnoses of diabetes mellitus, neck pain, and past CVA, an examination 

revealed normal range of motion in her neck and arms, a “gait with mild 

ataxia, but no spasticity,” inability to squat, inability to touch toes, 

inability to heel-toe walk, reduced grip strength on left side, yet good 

motor strength in upper and lower extremities, normal sensory and 

reflexes, and no atrophy.

In September 2011, and November 2011 to January 2012, the claimant 

received additional treatment from Mobile Adult Care. Those records note 

complaints of periodic headaches, dizziness, and left-sided weakness, for 

which the claimant received diagnoses for diabetes mellitus and migraine 

headaches. Other than obesity, however, examinations revealed 

essentially normal findings, including a normal gait.

February 2012 treatment records from the University of South Alabama 

OBGYN Center note diagnoses of uterine fibroids and diabetes mellitus, 

yet an examination that was essentially normal other than obesity. June 

2012 records from Franklin Primary note a diagnosis of diabetes mellitus, 

and though an examination revealed obesity, the claimant demonstrated 

normal range of motion, strength, and stability in all of her extremities. 

April 2012 records from the University of South Alabama OBGYN Center 

noted diagnoses of uterine fibroids and diabetes mellitus, yet an 

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examination revealed only obesity and a negative pathological report of 

the fibroid.

April to June 2012 records from Mobile Adult Care note that the claimant 

presented with complaints of numbness in her hands. The claimant was 

diagnosed with diabetes mellitus and carpal tunnel syndrome. An x-ray of 

the claimant’s chest in April 2012 was normal, review[] of systems was 

generally negative, and other than obesity, examination findings revealed 

essentially normal findings, including May 5, 2012, May 10, 2012, and June 

1, 2012 notes that indicated the claimant’s gait was normal.

September 2012 notes from Mobile Adult Care note swelling and 

decreased sensation in the claimant’s left foot, yet note no current foot 

ulcers or history of foot ulcers. February 2013 records from Mobile Adult 

Care note complaints of headaches and diagnoses of morbid obesity and 

diabetes mellitus. However, examination findings from that time revealed 

only obesity and note no musculoskeletal complaints or symptomology.

Finally, in January 2013, the claimant underwent a consultative 

examination performed by Thomasina Anderson Sharpe, M.D. At that 

time, the claimant complained of a history of CVA. Dr. Sharpe noted that 

the claimant had problems with balance but also that she was able to get 

on and off the examination table without difficulty. She had a broad-based 

gait. Though she had decreased sensation in her left foot, she had normal 

grip strength, muscle tone, and strength, with no atrophy, bilaterally. Dr. 

Sharpe diagnosed the claimant with CVA, hemiplegia, gait and balance 

disturbance, diabetes mellitus, and a history of fibroid tumors.

The aforementioned objective findings, as well as the claimant’s 

admissions and activities reduces the overall credibility of her allegations 

and undermines any alleged disabling limitations from her status-post 

cerebrovascular accident, neck pain of uncertain etiology, diabetes 

mellitus, peripheral neuropathy, obesity, carpal tunnel syndrome, a 

headache disorder, uterine fibroids, and peripheral vascular disease. 

Though the claimant alleges she has a weakened left side, she indicates 

that she is able to drive a car and can shop for 45 to 60 minutes. She goes 

on occasional walks with a friend. She testified that her diabetes was 

getting better. She has been counseled on the importance of a proper diet, 

but records repeatedly note obesity. The claimant indicated to the 

physicians at Franklin Primary that her overall health was “fair.”

Most notable, however, is evidence supporting the claimant’s ability to 

work during the period of adjudication. The claimant alleges she became 

unable to work in June 2009. In medical records from April 2010, the 

claimant indicated that she had tried to work since that time but had 

difficulty maintaining employment. At the August 2011 consultative 

examination, the claimant indicated that she did not officially stop work 

until June 2011. At the September 2012 initial hearing, the claimant 

testified that she had been hired by a childcare service two months prior 

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and was having difficulty working. At the July 2013 supplemental 

hearing, the claimant testified that she had worked at the child care 

facility part time, up to five and one-half hours per day and twenty hours 

per week, and had been paid $15 per hour. As pointed out in Finding 2 

above, the claimant’s earnings record indicates that the claimant worked 

at or above SGA levels in the fourth quarter of 2012 and the first quarter of 

2013. Those records indicate that at the claimant’s testified $15 per hour 

wage, she would have averaged 48 hours per week for the thirteen weeks 

in the fourth quarter of 2012. The claimant’s demonstrated ability to work 

undermines the severity of her impairments. As a result, I find the 

claimant’s allegations regarding the intensity, duration, and persistent of 

h[er] symptomology to be less than fully credible.

Accordingly, the aforementioned objective findings, including her 

repeatedly relatively normal gait, as well as the claimant’s admitted 

activities and abilities, including her admission to driving and her notable 

work after the alleged onset date, all indicate that the claimant’s 

symptomology resulting from status-post cerebrovascular accident, neck 

pain of uncertain etiology, diabetes mellitus, peripheral neuropathy, 

obesity, carpal tunnel syndrome, a headache disorder, uterine fibroids, 

and peripheral vascular disease are not completely disabling. However, I 

note that the claimant’s occasional symptomology can reasonably be 

expected to cause [] limitations to the claimant’s ability to function, and 

has limited the claimant to less than the full range of sedentary work, as 

set forth in Finding 5, above. The limitation to lifting and carrying 10 

pounds occasionally and items of negligible weight frequently; standing 

and/or walking for a total of 2 hours in an eight-hour day, but no more 

than 20 minutes at one time; sitting for a total of 8 hours in an eight-hour 

day, but no more than 1 hour at a time; the preclusion from balancing, 

exposure to unprotected heights and dangerous machinery, and climbing 

ladders, ropes, or scaffolds accommodate her cerebrovascular accident, 

diabetes mellitus, peripheral neuropathy, obesity, carpal tunnel 

syndrome, headache disorder, uterine fibroids, and peripheral vascular 

disease. The limitation to frequently pushing and/or pulling with the 

right upper extremity, but occasionally pushing and/or pulling with the 

left upper extremity; frequently pushing and/or pulling with the right 

lower extremity, but occasionally pushing and/or pulling with the left

lower extremity; occasionally stooping, kneeling, crouching, crawling, 

and climbing ramps and stairs; frequently reaching, handling, fingering, 

and feeling, bilaterally, accommodates left-sided weakness from her CVA, 

diabetes mellitus, neck pain of uncertain etiology, and peripheral 

neuropathy. The limitation to occasional exposure to vibrations, extreme 

heat, extreme cold, and humidity, and allowance for one unscheduled 

absence per month accommodates her headache disorder.

As for the opinion evidence, I give substantial weight to the January 2013 

physical capacities evaluation (PCE) of Dr. Sharpe, which limits the 

claimant to work at less than a full range of the light exertional level. Dr.

Sharpe also indicates that the claimant is able to sit for a full eight-hour 

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day, adds restrictions in the use of the claimant’s upper and lower 

extremities, and adds a preclusion against climbing ladders or scaffolds, 

balancing, and stooping. I give this opinion substantial weight because it 

is generally consistent with the treatment records and examination 

evidence. I note that the limitations in Finding 5, above, are generally 

more restrictive than Dr. Sharpe’s opinion, as I have viewed the claimant’s 

allegations in a light most favorable to the claimant. I note that Dr. 

Sharpe’s preclusion against stooping is not supported by any evidence in 

the record, and accords this determination no weight, instead noting that 

the evidence of record supports a limitation to occasional stooping.

I give substantial but not significant weight to the September 2012 

diabetes questionnaire completed by Eddie Pace, M.D. Dr. Pace indicates 

that the claimant suffers from insulin dependent diabetes, diabetic 

neuropathy, and has moderately severe limitation on her ability to 

perform work activity. This opinion is generally consistent with the 

treatment records and the overall evidence of record, but is totally 

inconsistent with the claimant’s ability to work during and after the 

opinion, during which time the claimant earned $2,008 in the third quarter 

of 2012, $9,486 in the fourth quarter of 2012, and $6,193 in the first quarter 

of 2013.

I give no substantial weight to the September 2012 system assessment 

completed by Dr. Pace. Dr. Pace indicates that he has treated the claimant 

for 11 years; the claimant’s impairments cause moderately severe 

limitations from headaches, left-sided weakness, and numbness of her 

hands and feet; and the claimant is therefore not capable of gainful 

employment. Initially, I note that any opinion regarding the claimant’s 

ability to work full-time in a competitive environment is an opinion 

reserved to the Commissioner. This opinion, however, is wholly 

inconsistent with ability to work during and after the opinion, during 

which time the claimant earned $2,008 in the third quarter of 2012, $9,486 

in the fourth quarter of 2012, and $6,193 in the first quarter of 2013.

In sum, based upon a review of the medical evidence of record and the 

claimant’s admitted activities and abilities, I find the evidence does not 

support the claimant’s allegations of totally incapacitating 

symptomatology. The record fails to document persistent, disabling loss 

of functional capacity resulting from the claimant’s severe impairments.

The above residual functional capacity assessment is supported by a 

preponderance of the most credible evidence of record, including 

objective evidence, opinion evidence, and the claimant’s indications and 

admissions as to activities and abilities. After considering the entirety of 

the record, I conclude that the claimant can perform a range of work 

consistent with what is set forth in Finding 5, above.

6. The claimant is capable of performing past relevant work as an 

accountant and accounting clerk. This work does not require the 

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performance of work-related activities precluded by the claimant’s 

residual functional capacity (20 CFR 404.1565).

Based on the evidence of record, the claimant has past relevant work [as] 

an accountant (Dictionary of Occupational Titles [] Code 160.162-018, 

sedentary, skilled) and accounting clerk (DOT Code 216.482-010, 

sedentary, skilled). This work qualifies as past relevant work because it 

was performed during the last fifteen years, it was performed at 

substantial gainful activity levels, and it was performed for a long enough 

period of time for the claimant to learn the jobs. 

In comparing the claimant’s residual functional capacity with the physical 

and mental demands of this work, I find that the claimant is able to 

perform it as actually and generally performed. At the supplemental 

hearing, the vocational expert testified that a hypothetical individual with 

the functional limitations in Finding 5, above, was still able to perform the 

claimant’s past work at the sedentary exertional level, specifically as an 

accountant and accounting clerk.

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

Social Security Act, from June 30, 2009, through the date of this decision 

(20 CFR 404.1520(f)). 

(Tr. 23, 24, 26 & 27-32 (internal citations & footnote omitted; emphasis in original).) The 

Appeals Council affirmed the ALJ’s decision (Tr. 1-3) 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.

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Watkins v. Commissioner of Social Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)2

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

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 her 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, 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 her past relevant 

work as an accountant and accounting clerk, 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. 

 2 “Unpublished opinions are not considered binding precedent, but they may be 

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

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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 the Commissioner’s] decision.” 

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).3 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, the sole issue raised by Phalo is that the ALJ erred in 

failing to assign controlling weight to the opinions of the treating physician, Dr. Eddie 

Pace. On September 28, 2012, Pace completed both a symptoms assessment form (Tr. 

460) and a diabetes questionnaire (Tr. 461).

4 On the symptoms assessment form, Pace 

indicated that he had treated plaintiff for approximately 11 years for migraines, 

hypertension, diabetes, carpal tunnel syndrome, hyperlipidemia, and an old stoke. (Tr. 

460.) Pace identified the symptoms plaintiff experiences from these conditions to be 

headaches, left-sided weakness, and numbness in her hands and feet and indicated that 

physical activity—such as walking, standing, bending, lifting, etc.—would greatly 

increase her symptoms so as to cause distraction from or total abandonment of task. 

(Id.) Pace also opined on this form that plaintiff could not engage in any form of gainful 

 3 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).

4 These forms were supplied to Pace by plaintiff’s attorneys, Gardberg & Clausen, 

P.C. (See id.)

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

workday, forty hours a week, without missing more than 2 days of work per month. 

(Id.) On the diabetes questionnaire, Pace indicated that plaintiff’s Type 1 insulindependent diabetes mellitus was not under good control and causes her to suffer

physical limitations, like blackouts, dizziness, and numbness in extremities, and, as 

well, she suffers from diabetic neuropathy (specifically, loss of protective sense with toe 

deformity and callus buildup) and retinitis proliferans (specifically, diabetic retinopathy 

noted on a January 27, 2012 eye exam). (Tr. 461.) Pace opined that Phalo’s diabetes 

would have a moderately severe degree of limitation on her ability to perform work 

activity and that she has been so impaired for approximately 3 years. (Id.)

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, supra, 357 F.3d at 1240 (other citation omitted); see 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)].

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

(per curiam). 

In this case, the ALJ specifically accorded substantial—but not significant—

weight to Pace’s diabetes questionnaire and no substantial weight to the system 

assessment form. (Tr. 31.)

I give substantial but not significant weight to the September 2012 

diabetes questionnaire completed by Eddie Pace, M.D. Dr. Pace indicates 

that the claimant suffers from insulin dependent diabetes, diabetic 

neuropathy, and has moderately severe limitation on her ability to 

perform work activity. This opinion is generally consistent with the 

treatment records and the overall evidence of record, but is totally 

inconsistent with the claimant’s ability to work during and after the 

opinion, during which time the claimant earned $2,008 in the third quarter 

of 2012, $9,486 in the fourth quarter of 2012, and $6,193 in the first quarter 

of 2013.

I give no substantial weight to the September 2012 system assessment 

completed by Dr. Pace. Dr. Pace indicates that he has treated the claimant 

for 11 years; the claimant’s impairments cause moderately severe 

limitations from headaches, left-sided weakness, and numbness of her 

hands and feet; and the claimant is therefore not capable of gainful 

employment. Initially, I note that any opinion regarding the claimant’s 

ability to work full-time in a competitive environment is an opinion 

reserved to the Commissioner. This opinion, however, is wholly 

inconsistent with ability to work during and after the opinion, during 

which time the claimant earned $2,008 in the third quarter of 2012, $9,486 

in the fourth quarter of 2012, and $6,193 in the first quarter of 2013.

(Id.) Given the concession by plaintiff’s counsel that the ALJ properly rejected the 

opinion by Pace related to Phalo’s ability to work fulltime in a competitive environment 

(compare id. with Tr. 460 (Pace opined that plaintiff could not engage in any form of 

gainful employment on a repetitive, competitive and productive basis over an eighthour workday, forty hours a week, without missing more than 2 days of work per 

month)), since that is a dispositive issue reserved to the Commissioner, compare Kelly v. 

Commissioner of Social Security, 401 Fed.Appx. 403, 407 (11th Cir. Oct. 21, 2010) (“A 

doctor’s opinion on a dispositive issue reserved for the Commissioner, such as whether 

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the claimant is ‘disabled’ or ‘unable to work,’ is not considered a medical opinion and is 

not given any special significance, even if offered by a treating source[.]”) with Lanier v. 

Commissioner of Social Security, 252 Fed.Appx. 311, 314 (11th Cir. Oct. 26, 2007) (“The ALJ 

correctly noted that the opinion that Lanier was unable to work was reserved to the 

Commissioner.”), the essential issue becomes whether the ALJ erred in failing to accord 

controlling weight to Dr. Pace’s opinions (1) that physical activity—such as walking, 

standing, lifting, bending, repetitive movement of the extremities, etc.—would greatly 

increase Phalo’s symptoms (that is, headaches, left-sided weakness, and numbness of 

the hands and feet) to such a degree as to cause distraction from, or total abandonment 

of, task (Tr. 460); and (2) that plaintiff’s diabetes would have a moderately severe 

degree of limitation upon her ability to perform work activity (Tr. 461). The ALJ, of 

course, declined to afford these opinions controlling (or even significant or substantial) 

weight in light of the record evidence establishing that plaintiff engaged in substantial 

gainful activity during the third and fourth quarters of 2012 and the first quarter of 2013 

(Tr. 31; compare id. with Tr. 23), that is, she engaged in work activity before, during, and 

after Dr. Pace completed the diabetes questionnaire and the system assessment form 

(compare id. with Tr. 460-461). 

A review of the transcript reflects that Phalo filed an application for disability 

insurance benefits alleging she became unable to work on June 30, 2009 (Tr. 188) and 

though her earnings records from the third quarter of 2009 until the third quarter of 

2012 show no earnings (see id. at 195-218), those same records reflect that in the third 

quarter of 2012 plaintiff had earnings of $2,008.00, in the fourth quarter of 2012 she had 

earnings of $9,486.00, and in the first quarter of 2013 she had earnings of $6,193.00 (see 

id. at 220-223). In light of the fact that Dr. Pace completed his diabetes questionnaire and 

system assessment forms at a time when plaintiff was working as an accountant at a 

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level signifying substantial gainful activity (compare Tr. 220-223 with Tr. 23), see 20 C.F.R. 

§ 1574, the Court finds no error in the ALJ affording no weight to Pace’s opinions—

rendered on September 28, 2012—(1) that physical activity—such as walking, standing, 

lifting, bending, repetitive movement of the extremities, etc.—would greatly increase 

Phalo’s symptoms (that is, headaches, left-sided weakness, and numbness of the hands 

and feet) to the degree to cause distraction from, or total abandonment of, tasks; and (2) 

that plaintiff’s diabetes would have a moderately severe degree of limitation upon her 

ability to perform work activity. In other words, this Court finds that the ALJ was free 

to reject the foregoing opinions of Dr. Pace because the evidence of record supported a 

contrary conclusion. Compare Gilabert, supra, 396 Fed.Appx. at 655 (good cause exists for 

not affording a treating physician’s opinion substantial or considerable weight where 

the evidence supports a contrary finding) with Ellison v. Barnhart, 355 F.3d 1272, 1275-

1276 (11th Cir. 2003) (the fact that the claimant worked for several years in spite of his 

seizure disorder, combined with the medical records of several doctors indicating that 

plaintiff’s seizure disorder did not prevent him from performing unskilled work, 

constituted substantial evidence supporting the ALJ’s decision to discredit doctor’s 

opinion that plaintiff was totally disabled).5

In light of the foregoing, and because plaintiff raises no other issues, the 

Commissioner’s fourth-step determination is due to be affirmed. Compare Land v. 

Commissioner of Social Security, 494 Fed.Appx. 47, 49 & 50 (11th Cir. Oct. 26, 2012) 

(“[S]tep four assesses the claimant’s RFC to determine whether the claimant is capable 

 5 The evidence supporting a contrary conclusion is not limited to plaintiff’s 

earnings records, however, as evidence from consultative examiners Dr. Thomasina Sharpe (Tr. 

465-474) and Dr. Thomas Wyatt (Tr. 417), as well as numerous clinical findings noted by Dr. 

Pace and other doctors at Mobile Adult Care, LLC, including normal gait and no focal deficit 

(see, e.g., Tr. 356, 424, 445, 449 & 453), also support a contrary conclusion.

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of performing ‘past relevant work.’ . . . A claimant’s RFC takes into account both 

physical and mental limitations. . . . Because more than a scintilla of evidence supported 

the ALJ’s RFC assessment here, we will not second-guess the Commissioner’s 

determination.”) with Phillips, supra, 357 F.3d at 1238-1239 (“At the fourth step, the ALJ 

must assess: (1) the claimant’s residual functional capacity []; and (2) the claimant’s 

ability to return to [his] past relevant work. 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. 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. Furthermore, the RFC determination is used both to determine 

whether the claimant: (1) can return to [his] past relevant work under the fourth step; 

and (2) can adjust to other work under the fifth step . . . . If the claimant can return to 

[his] past relevant work, the ALJ will conclude that the claimant is not disabled. If the 

claimant cannot return to [his] past relevant work, the ALJ moves on to step 5.” 

(internal citations, quotation marks, and brackets omitted; brackets added)).

CONCLUSION

In light of the foregoing, it is ORDERED that the decision of the Commissioner 

of Social Security denying plaintiff benefits be affirmed.

DONE and ORDERED this the 15th day of April, 2016.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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