IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SHIRLEY ANN BLACKMAN, :

Plaintiff, :

vs. : CA 15-0202-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. 18 & 19 (“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, 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 Docs. 18 & 19 (“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.”).)

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 1 of 16
2

Plaintiff alleges disability due to hypertension, diabetes mellitus, degenerative 

disc disease of the lumbar spine, history of left ankle fracture with hardware, asthma, 

anxiety, obesity, and dysthymic 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, 2011.

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

July 30, 2010, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 

et seq.).

3. The claimant has the following severe impairment: hypertension; 

diabetes mellitus; degenerative disc disease of the lumbar spine; history 

of left ankle fracture with hardware; asthma; anxiety; obesity; and 

dysthymic 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, the undersigned

finds that the claimant has the residual functional capacity to perform

less than a full range of light work where light work is defined in 20 

CFR 404.1567(b) and 416.967(b). The claimant can lift and carry 20 

pounds occasionally and 10 pounds frequently. The claimant can stand 

and walk no more than 30 minutes at a time and no more than 2 hours in 

an 8-hour workday. The claimant can occasionally use foot controls. The 

claimant can never climb ladders/scaffolds/ropes; work around 

unprotected heights; or work around dangerous equipment. The 

claimant can never work around temperature extremes, humidity, 

wetness, or be exposed to concentrated environmental pollutants such 

as dust, chemicals, and fumes. The claimant is able to carry out simple 

one or two step instructions and detailed but uninvolved written or oral 

instructions involving a few concrete variables in or from standardized 

situations. The claimant must avoid tasks involving a variety of 

instructions or tasks. The claimant needs to avoid work in crowds and 

tasks involving a variety of instructions or tasks. She is able to have 

occasional interaction with the public.

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 2 of 16
3

In making this finding, the undersigned has 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 416.929 and SSRs 96-4p and 

96-7p. The undersigned has also considered opinion evidence in 

accordance with the requirements of 20 CFR 404.1527 and 416.927 and 

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

. . .

The undersigned will now turn to evaluate the medical record of evidence 

regarding the claimant’s alleged physical impairments of hypertension, 

diabetes mellitus, degenerative disc disease of the lumbar spine, asthma, 

history of left ankle fracture with hardware, and obesity to assess the 

claimant’s physical residual functional capacity (RFC). 

The claimant’s medical records reflect that the claimant received 

conservative treatment for her impairments, many of her clinic visits were 

for inconsistent reasons, and she had inconsistent complaints. A treatment 

note from October 5, 2010 indicated that the claimant had a history of 

sinusitis, asthma, hypertension, and depression, but she did not complain 

of any cardiovascular, pulmonary, musculoskeletal, or depression issues 

at that visit. She was diagnosed with sore throat and hemoptysis. A 

treatment note from October 6, 2010 indicated that an X-ray was 

performed and the claimant was diagnosed with tracheobronchitis. On 

January 25, 2011, the claimant presented to the Mobile County 

Department of Health requesting a diabetes check-up and prescription 

refills, and complaining of chest congestion. She was diagnosed with 

tracheobronchitis and prescribed Albuterol, Ultram, and Ampicillin. On 

January 28, 2011, the claimant was diagnosed with tracheobronchitis and 

obesity.

In the summer of 2011, the claimant’s primary issue was with her asthma 

with noted obesity, diabetes, and hypertension. On May 3, 2011, the 

claimant presented to a clinic for chest congestion and a cough, and the 

notes indicate that the claimant admitted to being a current occasional 

smoker. Her blood pressure was 151/92, which is a high blood pressure.

She was diagnosed with tracheobronchitis and hypersecretory 

gastropathy. On May 5, 2011, the claimant presented to the clinic because 

she was unable to afford her albuterol inhalers, but was given samples 

and referred to patient assistance. On May 31, 2011, the claimant went to 

the emergency department for asthma exacerbation and hypertension. At 

that visit, a radiological report demonstrated that the claimant had no 

acute chest pathology, and only mild bilateral hyperinflation. On June 6, 

2011, the claimant presented for a follow up to obtain prescription refills, 

and indicated that she did not have [] money to buy her medications. At 

that visit the claimant did not have any cardiovascular, pulmonary, 

musculoskeletal, or psychological complaints, and the notes indicate that 

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 3 of 16
4

the claimant was not morbidly obese and her blood pressure was 139/75, 

which is a normal blood pressure. The claimant was diagnosed with 

asthma and obesity, and the hospital attempted to help her afford her 

medication. On August 10, 2011, the claimant presented to the Mobile 

County Health Department for complaints of chest pain and muscle 

spasms in her left lower back, yet her musculoskeletal and cardiovascular 

systems appeared normal. She was diagnosed with asthma, obesity, and a 

backache. As of the next day, she reported that she felt better. On 

September 22, 2011, the claimant presented to the USA Medical Center for 

shortness of breath, coughing, and wheezing. At the time of discharge, 

which was the date she presented to the hospital, the discharge notes 

stated that the claimant’s attack appeared to be anxiety related.

In the fall of 2011 through the spring of 2012, the claimant presented for 

follow-up appointments or for issues not related to her severe 

impairments. On September 26 and October 27, 2011, she presented to the 

Mobile County Health Department for cysts and/or boils under her arm, 

and the treatment notes stated that she did not complain of any back pain, 

joint pain, chest pain or discomfort, or shortness of breath. On September 

27, 2011, she presented to Mobile County Health Department for a 

diabetes follow-up appointment. On November 18, 2011; December 16, 

2011; March 30, 2012; July 24, 2012; and May 21, 2012, she presented for 

allergies, but each time no know allergies were noted or found. On April 

20, 2012, the claimant presented for a spider bite to the Mobile County 

Health Department, and the treatment notes stated that the claimant did 

not complain of any cardiovascular, pulmonary, musculoskeletal, or 

psychological issues.

As of July 2012, the claimant started complaining of ankle pain, and made 

some complaints of back pain, but did not complain of symptoms related 

to her asthma, such as shortness of breath. On July 19, 2012 the claimant 

presented for lower back pain and left ankle pain. The notes showed that 

the claimant had a history of depression, lower back pain, left ankle pain 

status post a rod placement, diabetes mellitus, hypertension, and asthma. 

At that visit, the claimant did not complain of any shortness of breath, 

symptoms of depression, or cardiovascular issues. The claimant was 

assessed with elevated blood pressure, obesity, asthma, dysthymic 

disorder, backache, and arthropathy. A radiological report on July 20, 

2012, demonstrated that there was no abnormality of hardware with no 

acute process or tissue deformity in her left ankle. In addition, the report 

demonstrated that there was no evidence of spondylolisthesis in her 

lumber spine, and that her SI joints and soft tissues were unremarkable. 

On August 9, 2012, the claimant went to the emergency room for ankle 

pain because of a ground level fall, and was diagnosed with a left ankle 

contusion and asthma exacerbation. Radiographs were taken of her left 

ankle, and it (sic) showed that there was no evidence of acute fracture or 

dislocation; no lucency around the hardware to suggest loosening or 

infection; and the ankle anatomic alignment was preserved, which 

demonstrated that there was no evidence of a fracture or hardware 

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 4 of 16
5

complication. She was given pain medication and discharged from the 

hospital. Treatment notes from August 14, 2012 indicate that when the 

claimant went to the emergency room, she was told that she did not need 

surgery on her ankle, but instead was given [] pain medication and told to 

keep her leg elevated. On October 5, 2012, the claimant complained of left 

ankle pain and was diagnosed with anthropathy and malunion of the 

ankle.

On October [5], 2012, Mark Pita, M.D. assessed the claimant’s physical 

RFC. Dr. Pita found that the claimant can lift 5 pounds occasionally and 1 

pound frequently; sit for 4 hours; and stand and walk for 0 hours. He 

found that the claimant does not require an assistive device to ambulate. 

He found that the claimant can frequently perform gross manipulation; 

fine manipulation; bending and/or stooping movements; reaching; and be 

exposed to environmental problems. He found that the claimant can 

rarely push/pull; operate motor vehicles; or work with or around 

hazardous machinery. He assessed that the claimant can never climb stairs 

and ladders or balance. He explained that he came to his opinion because 

the claimant’s chronic fracture of her left ankle limits her range of motion. 

In addition, he opined that the claimant’s pain is present to such an extent 

as to be distracting to adequate performance of daily activities or work; 

physical activity greatly increases pain to such a degree as to cause 

distraction from tasks; and that drug side effects can be expected to be 

severe so as to limit effectiveness.

On December 9, 2012, the claimant presented to the Stanton Road Clinic 

for her left ankle. The treatment notes indicated that the claimant was 

asymptomatic for any ankle issues status post her surgery in 

approximately 2008 until August 2012 when she fell. Over the counter 

medication was prescribed for her pain and she was placed into a shortleg walking cast. The doctor indicated that potential removal of the 

hardware would be considered on an outpatient basis if the claimant 

continued to be immobile and in pain. However, he noted there was no 

evidence of breakage.

. . .

After careful consideration of the evidence, the undersigned finds that the 

claimant’s medically determinable impairments could reasonably be 

expected to cause the alleged symptoms; however, the claimant’s 

statements concerning the intensity, persistence and limiting effects of 

these symptoms are not wholly credible. First, the claimant testified at the 

hearing that her ankle is still a problem and affects her ability to walk; 

however, the claimant’s medical records, specifically the radiograph 

reports, demonstrate that the claimant’s recent ankle issue does not show 

an ongoing hardware issue, but rather an ankle sprain that required a cast. 

Second, the claimant’s testimony that her cane is necessary to her walking 

is not wholly credible since no doctor prescribed her a cane and her 

treatment notes did not indicate any abnormal gait, which indicates that 

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 5 of 16
6

the cane is not a necessity. Third, the claimant’s ability to engage in a wide 

array of activities of daily living, such as attending Bible study, choir 

practice, and two church services on Sunday, belies her claims that she is 

completely disabled. The Eleventh Circuit recognizes that an ALJ may 

consider a claimant’s daily activities as a factor in making credibility 

determinations. See Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir. 1984). 

Fourth, the claimant’s complaints of asthma, pain arising from her 

musculoskeletal impairments, anxiety, diabetes issues and hypertension 

issues are not consistent complaints evident from a longitudinal review of 

her medical records.

In light of the record as a whole, the undersigned assigns the following 

residual functional capacity (RFC). The claimant can lift and carry 20 

pounds occasionally and 10 pounds frequently in light of her degenerative 

disc disease of the lumbar spine that is mild with no spondylolisthesis 

evident from a radiograph report. The claimant can stand and walk no 

more than 30 minutes at a time and no more than 2 hours in an 8-hour 

workday in light of her history of left ankle fracture with hardware given 

that the radiograph report showed no abnormality of hardware with no

acute process or soft tissue deformity in her left ankle. The claimant can 

occasionally use foot controls in light of her history of left ankle fracture 

with hardware given that the radiograph reports demonstrate that her

hardware is not causing problems. The claimant can never climb 

ladders/scaffolds/ropes or work around unprotected heights or 

dangerous equipment in light of her obesity, diabetes mellitus, and 

hypertension. The claimant can never work around temperature extremes, 

humidity, wetness, or be exposed to concentrated environmental 

pollutants such as dust, chemicals, and fumes in light of her asthma and 

any exacerbation of her asthma causing her shortness of breath from 

temperature extremes or pollutants. The claimant must avoid tasks 

involving a variety of instructions or tasks, but is able to carry out simple 

one or two-step instructions and detailed but uninvolved written or oral 

instructions involving a few concrete variables in or from standardized 

situations in light [of] her anxiety that is controllable with medication. She 

is able to have occasional interaction with the public since her anxiety is 

controllable with medication. The claimant must avoid tasks involving a 

variety of instructions or tasks in light of her anxiety and potential for 

crying spells. The claimant needs to avoid working in crowds and tasks 

involving a variety of instructions or tasks given her dysthymic disorder.

The undersigned will now turn to weigh the opinion evidence. Dr. Pita’s 

opinion is given no weight. There is no indication as to whether Dr. Pita 

examined the claimant, looked at her complete medical history, or merely 

listened to the claimant’s allegations. Furthermore, the objective 

radiographic evidence and the treatment notes from Stanton Road Clinic 

are in complete contrast to the opinion of Dr. Pita.

. . .

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 6 of 16
7

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 20, 1964 and was 45 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 an issue in this case because 

the claimant’s past relevant work is unskilled (20 CFR 404.1568 and 

416.968).

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 202.20. 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, the 

Administrative Law Judge 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: assembler (DOT 739.687-066) with 1,500 jobs in Alabama and 

102,000 jobs in the national economy; microfilm document preparer (DOT 

249.587-018) with 1,200 jobs in Alabama and 149,000 jobs in the national 

economy; and surveillance system monitor (DOT 379.367-010) with 868 

jobs in Alabama and 102,000 jobs in the national economy.

Pursuant to SSR 00-4p, the undersigned has determined that the 

vocational expert’s testimony is consistent with the information contained 

in the Dictionary of Occupational Titles. 

Based on the testimony of the vocational expert, the undersigned

concludes 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 

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 7 of 16
8

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 July 30, 2010, through the date of this decision 

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

(Tr. 28, 29, 32, 33-35, 36-37, 37 & 38 (internal citations omitted; emphasis in original).) 

The Appeals Council affirmed the ALJ’s decision (Tr. 7-9) 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 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 

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

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

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 8 of 16
9

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 sedentary

jobs identified by the vocational expert during the administrative hearing, is supported 

by substantial evidence.3 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 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 

 3 Even though the ALJ determined that plaintiff retains the physical residual 

functional capacity to perform less than the full range of light work (Tr. 32), the jobs identified 

by the vocational expert in response to the ALJ’s hypothetical fall within the sedentary range 

(see Tr. 78-79).

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).

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 9 of 16
10

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 Blackman in her brief is that the 

ALJ erred in failing to accord adequate weight to the opinions of the treating physician, 

Dr. Mark Pita.5 On October 5, 2012, Pita completed both a physical capacities evaluation 

(“PCE”) and a clinical assessment of pain (“CAP”) form. (See Tr. 347-348.) On the PCE, 

Pita indicated plaintiff can only sit for 4 hours in an 8-hour workday, stand or walk for 

zero hours in an 8-hour workday, lift and carry 5 pounds occasionally and 1 pound 

frequently, rarely perform pushing and pulling movements (arm and/or leg controls), 

rarely operate motor vehicles, rarely work with or around dangerous machinery, never 

climb or balance, and would be absent from work more than four days per month, all 

because of “chronic fracture of [the] left ankle, limiting range of motion[.]” (Tr. 347.) 

Interestingly, on this same form, Pita indicated plaintiff would not require an assistive 

device to ambulate and that she can frequently perform gross and fine manipulation, 

frequently reach, frequently perform bending and/or stooping movements, and 

frequently be exposed to environmental “problems” like dust and allergens. (See id.) On 

 5 During oral argument, counsel for plaintiff suggested that the ALJ erred in 

giving great weight to the opinion of Dr. Duke, in light of the fact that the record contains no 

curriculum vitae on Duke to verify her credentials. Plaintiff also argues that it is not clear what 

records Duke reviewed. 

The Court cannot agree with plaintiff on either prong of her attack on Duke. Initially, the 

undersigned notes that the record does not appear to contain any curricula vitae, including one 

for Dr. Pita. Nevertheless, this “lack” of evidence amounts to no more than harmless error given 

that an Internet search satisfies the Court that Dr. Linda Duke is a practicing clinical 

neuropsychologist. http://www.doctor.com/Linda_Duke (last visited April 22, 2016, at 10:48 

a.m.). In addition, it is clear to this Court what records Duke reviewed as she lists the evidence 

upon which she based her opinions. (See Tr. 292 (referencing the MSE by Dr. Jennifer Adams on 

August 2, 2011, records dated May 3, 2011-June 6, 2011 from the Mobile County Department of 

Health, and evidence of plaintiff’s ADLS).)

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 10 of 16
11

the CAP, Pita indicated that pain is present to such an extent as to be distracting to 

adequate performance of daily activities or work; physical activity—such as walking, 

standing, sitting, bending, stooping, etc.—would greatly increase plaintiff’s pain so as 

to cause distraction from or total abandonment of task; and drug side effects could be 

expected to be severe and to limit effectiveness due to distraction, inattention or 

drowsiness. (Tr. 348.)

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 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 Social 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 RFC assessment must be supported by substantial evidence. See id. 

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

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 11 of 16
12

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 Sec. Admin., 389 Fed.Appx. 944, 947-948 (11th Cir. Jul. 28, 2010) 

(per curiam) (same).

In this case, the ALJ specifically determined that “no” weight was to be accorded 

Pita’s opinions set forth on the PCE and the CAP. (Compare Tr. 37 with Tr. 34.)

Dr. Pita’s opinion is given no weight. There is no indication as to whether 

Dr. Pita examined the claimant, looked at her complete medical history, or 

merely listened to the claimant’s allegations. Furthermore, the objective 

radiographic evidence and the treatment notes from Stanton Road Clinic 

are in complete contrast to the opinion of Dr. Pita. 

(Tr. 37.) The undersigned construes the ALJ’s comments as an implicit (if not explicit) 

finding that Dr. Pita’s opinions were conclusory and inconsistent with the other 

evidence of record. (See id.)

A review of the transcript reflects that Dr. Pita did treat plaintiff on two

occasions during the relevant time period, that is, after July 30, 2010 (see Tr. 28 (onset 

date of July 30, 2010)).6 On July 19, 2012, Pita noted that Blackman walked with a left leg 

limp and had pain with flexion of the left ankle; the pain was characterized by plaintiff 

as throbbing and intermittent (Tr. 350) and yet Pita also noted that plaintiff was in no 

 6 While there is reference in the record to Dr. Pita being the examiner on three 

other dates, that is July 20, 2012, July 24, 2012, and August 14, 2012 (Tr. 358), it is apparent that 

on none of these occasions did Pita actually examine Blackman; instead, on July 20, 2012, Pita 

simply reviewed the x-rays of plaintiff’s left ankle and back, on July 24, 2012, medications were 

prescribed or samples given to plaintiff, and on August 14, 2012, it appears that an LPN in Pita’s 

office spoke with plaintiff about her ER visit on August 9, 2012 (compare id. with Tr. 366) and 

specifically noted that Blackman was “TOLD SHE DO NOT NEED SURGERY ON ANKLE.” 

(Tr. 358.) 

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 12 of 16
13

acute distress (Tr. 351). On October 5, 2012, the same date the PCE and CAP forms were 

completed, Pita again noted that Blackman walked with a left leg limp and had pain on 

flexion of the left leg ankle (Tr. 354); however, when describing her pain on this 

occasion, plaintiff characterized it as throbbing and persistent (Tr. 353). Again, plaintiff 

was noted to be in no acute distress (Tr. 354) and notation was made that the chief 

reason plaintiff was seeing Pita was so he could “[c]omplete disability form[s]” (Tr. 

353.) Moreover, the following observations and comments were made by Pita: “Patient 

is a AAF with chronic left ankle pain. Patient says that she needs another operation to 

re-pin her left ankle. Patient says that the pain and difficulty ambulating have not 

improved.” (Id.)

7

Based on the foregoing, the Court finds that the ALJ was absolutely correct in 

giving no weight to Dr. Pita’s October 5, 2012 RFC and CAP findings because these 

findings were inconsistent with the radiographic evidence, as well as the treatment 

notes from Stanton Road Clinic, see 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 or where the opinions are not bolstered 

 7 Pita’s assessments on this occasion included “[m]alunion of fracture of the ankle” 

(Tr. 355) and since there is no objective evidence of record which reflects any malunion of the 

fracture of the left ankle (compare Tr. 364 (“LEFT ANKLE, THREE VIEWS: No comparison 

studies. There is a compression plate and screws in the lateral malleolus and distal fibula with 

evidence of fracture healing. Wires and pins are noted in the medial malleolus, also 

demonstrating healing of a fracture. Ankle mortise is intact. No abnormality of hardware with 

no acute process or soft tissue abnormality.”) with Tr. 372 (“Three radiographs of the left 

ankle[.] . . . There is a fixation plate with interlocking screws in the distal fibula/lateral 

malleolus and pins traversing the medial malleolus into the tibial metaphysis. There is no 

evidence of acute fracture or dislocation. There is no lucency around the hardware to suggest 

loosening or infection. The ankle anatomic alignment is preserved. The tibiotalar joint is intact. 

Boehler’s angle is preserved. The talar dome is intact. No lytic or blastic lesion is seen. Soft 

tissue swelling noted medially and laterally.”)) it is apparent to the undersigned that this 

assessment was based upon Blackman’s comment that she needed “another operation to re-pin 

her left ankle.” (Compare Tr. 355 with Tr. 353; see Tr. 358 (“SPOKE WITH PT ABOUT ER VISIT. 

TOLD SHE DO NOT NEED SURGERY ON ANKLE.”).)

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 13 of 16
14

by the evidence), as explained more fully infra, and the ALJ correctly surmised that Pita 

was “merely listen[ing] to the claimant’s allegations[]” in completing the forms8. In 

addition, Dr. Pita’s objective clinical findings of pain on flexion of the left ankle and a 

left leg limp—while at the same time also prominently noting that plaintiff was in no 

acute distress—are inherently inconsistent with the findings set forth on both the PCE 

form and the CAP form he completed on October 5, 2012. See Gilabert, supra, 396 

Fed.Appx. at 655 (good cause exists for not affording a treating physician’s opinion 

substantial or considerable weight where those opinions are inconsistent with the 

physician’s own medical records). In particular, nothing about these 

“findings/limitations” support an inability to lift and/or carry more than 5 pounds, as 

indicated on the PCE form completed by Pita, particularly in light of Blackman’s 

unequivocal indication that she can lift 10 to 20 pounds (Tr. 219). Moreover, the medical 

basis identified by Pita—chronic fracture of left ankle, limiting range of motion—and 

Pita’s clinical findings do not support the noted restrictions of an ability to only sit for

four hours out of an eight-hour workday and stand or walk zero (0) hours out of an 

eight-hour workday (see Tr. 347), inasmuch as there is absolutely no evidence in the 

record which establishes that Blackman has a “chronic fracture” of her left ankle 

(compare Tr. 364 with Tr. 372). Also, the other medical evidence of record does not 

support the total inability to lift and carry more than 5 pounds, or the significant sitting 

and standing/walking limitations noted by Pita on the PCE. (See, e.g., Tr. 364 (July 20, 

2012 x-rays of the left ankle showed no abnormality of the hardware in the ankle and no 

 8 That Pita was “listening to” Blackman’s complaints when completing the PCE 

and CAP is clear based not only on Pita’s comment that plaintiff’s visit was specifically for 

completion of the “disability form[s]” but, as well, on his prominent acceptance of Blackman’s 

statements that she needed “another operation to re-pin her left ankle[]” and that her “pain and 

difficulty ambulating ha[d] not improved.” (Tr. 353; compare id. with Tr. 347 & 348.)

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 14 of 16
15

acute process or soft tissue abnormality); Tr. 366-367 (on August 9, 2012, plaintiff 

arrived at the emergency room of the University of South Alabama Medical Center

complaining of left ankle pain after a fall; however, examination of the left ankle 

revealed only mild lateral edema and a final diagnosis of left ankle contusion); Tr. 372

(x-rays taken of plaintiff’s left ankle on her emergency room visit on August 9, 2012 

were read on August 10, 2012, and revealed no evidence of acute fracture or dislocation, 

preserved ankle anatomic alignment, and nothing suggesting any loose hardware; Dr. 

Moroni’s impression was “[s]tatus post left bimalleolar ORIF without evidence of 

fracture or hardware complication.”); and Tr. 374 (on presentment to the Stanton Road 

Clinic on December 3, 2012, physical examination revealed 5/5 strength, tenderness to 

palpation along the lateral incision in and around the area of the plate but no pain on 

“the medial aspect of where the tension band is in place[;]” plaintiff was placed in a 

walking cast for three weeks “to allow for a calming down of the soft tissue, as it 

appears that it could be a sprain[]” and it was noted that if the pain continued hardware 

removal on an outpatient basis would be considered).) Finally, nothing about the justreferenced medical evidence of record—including Dr. Pita’s own clinic notes—support 

the CAP findings; instead, the undersigned agrees with the ALJ’s suggestion that these 

findings were “driven” by plaintiff’s subjective complaints,

9 and, therefore, these 

“findings/opinions” were properly rejected. Cf. Crawford, supra, 363 F.3d at 1159 

(upholding ALJ’s rejection of treating physician’s opinion, in part, because it 

“appear[ed] to be based primarily on [claimant]’s subjective complaints of pain”). 

 9 The Court would be remiss in failing to note that plaintiff does not contest the 

ALJ’s credibility finding.

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 15 of 16
16

Accordingly, the Court finds the ALJ’s articulated reasons for giving no weight to the 

October 5, 2012 PCE and CAP findings supported by substantial evidence.

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

Commissioner’s fifth-step determination is due to be affirmed. See, e.g., Owens v. 

Commissioner of Social Sec., 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 Sec., 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

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 26th day of April, 2016.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

Case 1:15-cv-00202-C Document 21 Filed 04/26/16 Page 16 of 16