IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL D. BRAGGS, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 15-00174-N

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

Defendant. )

MEMORANDUM OPINION AND ORDER

Social Security Claimant/Plaintiff Michael D. Braggs 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 his

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. By the consent 

of the parties (see Doc. 18), 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. 19).

Upon consideration of the parties’ briefs (Docs. 14, 15) and the administrative 

record (Doc. 13) (hereinafter cited as “(R. [page number(s)])”),1 the Court finds that 

the Commissioner’s decision is due to be AFFIRMED.

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

(See Docs. 17, 20).

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I. Background

On September 20, 2011, Braggs filed applications for DIB and SSI with the 

Social Security Administration (“SSA”),2 each alleging disability beginning January 

8, 2011.3 (R. 21). After his applications were initially denied, Braggs requested a 

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

on May 13, 2013. (R. 21). On December 23, 2013, the ALJ issued an unfavorable 

decision on Braggs’s applications, finding him “not disabled” under the Social 

Security Act. (See R. 18 – 33). Braggs 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 Braggs’s applications became final when the Appeals 

Council denied Braggs’s request for review on February 25, 2015. (R. 1 – 4). On 

March 31, 2015, Braggs filed this action under §§ 405(g) and 1383(c)(3) for judicial 

review of the Commissioner’s final decision. (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, 

 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).

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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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].’ ” 

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 

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[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). See also Owens v. 

Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to 

conduct a de novo proceeding, nor to rubber stamp the administrative decisions that 

come before us. Rather, our function is to ensure that the decision was based on a 

reasonable and consistently applied standard, and was carefully considered in light 

of all the relevant facts.”). “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. 

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Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (“In Social Security

appeals, we review de novo the legal principles upon 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 

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

experience.

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 

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

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 substantial weight to the 

opinion of [Braggs]’s treating physician, Otis Harrison, M.D. Dr. Harrison’s 

opinion is well-supported and is consistent with the other substantial 

evidence of record.”

2. The ALJ “committed reversible error in substituting the opinion of a nonexamining, reviewing State agency physician for the opinion of [Braggs]’s 

treating physician in violation of the Eleventh Circuit case law under 

Coleman v. Barnhart and Social Security Ruling 96-6p.” 

(Doc. 14 at 1 – 2).

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IV. Analysis

A. Claim 1

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

substantial gainful activity since January 8, 2011, the alleged onset date...” (R. 23). 

At Step Two, the ALJ determined that Braggs had the following severe 

impairments: panic disorder, Lortab and Xanax dependence, obesity, arthritis of the 

hands and wrist, headache disorder, asthma, degenerative disc disease of the 

lumbar spine and degenerative joint disease, left wrist osteoarthritis, right hemidiaphragm elevation, bronchitis, and “status post gunshot wounds.” (R. 23). At 

Step Three, the ALJ found that Braggs did not have an impairment or combination 

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

Listing of Impairments. (R. 24). 

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.

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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 

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 Braggs had the RFC “to perform light work as 

defined in 20 CFR 404.1567(b) and 20 CFR 416.967(b),” 6 with certain limitations: 

Braggs could lift/carry up to 20 pounds occasionally and 10 pounds frequently; 

stand and/or walk for 4 hours, no more than 45 minutes at a time; could sit for 6 

hours, no more than one hour at a time; could frequently push and/or pull with the 

right upper extremity and occasionally push and/or pull with the upper left 

extremity; could balance for 4 hours; could occasionally stoop, kneel, and crouch; 

could never crawl or climb ramps, stairs, ladders, ropes, or scaffolds; could 

frequently reach, bilaterally; could occasionally handle with the left hand and 

frequently with the right; could frequently finger with the right hand and 

occasionally with the left; could continuously feel with the right hand and 

frequently with the left; could tolerate occasional exposure to extreme heat, extreme 

 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 is defined as work that 

‘involves lifting no more than 20 pounds at a time with frequent lifting or carrying of 

objects weighing up to 10 pounds.’...The regulations further state that ‘[e]ven 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.’ ” Id. n.5 (quoting 20 C.F.R. § 404.1567(b), which is identical 

to § 416.967(b)).

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cold, and pulmonary irritants; must avoid exposure to unprotected heights and all 

exposure to dangerous machinery; is limited to simple routine tasks involving no 

more than simple, short instructions and simple work-related decisions with few 

work place changes; and could sustain concentration and attention for 2 hour 

periods with customary breaks. (R. 26). Based on this RFC, the ALJ determined 

that Braggs was “unable to perform any past relevant work...” (R. 31). At Step 

Five, the ALJ then determined that there exist significant numbers of jobs in the 

national economy that Braggs can perform given his RFC, age, education, and work 

experience – specifically, document preparer, surveillance system monitor, call out 

operator, and election clerk. (R. 31 – 32). Thus, the ALJ found that Braggs was not 

disabled under the Social Security Act. (R. 32). 

Braggs contends that the ALJ erred in assigning less than substantial weight 

to the opinions of treating physician Dr. Otis Harrison. “ ‘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. §§ 

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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 specialization. These factors apply to both examining and nonexamining 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)). 

“[T]he ALJ must state with particularity the weight given to different medical 

opinions and the reasons therefor.” Winschel, 631 F.3d at 1179 (citing Sharfarz v. 

Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam)). However, 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).

“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) 

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

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

F.3d at 1179 (quoting Lewis, 125 F.3d at 1440). “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.” Id. (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)).

At Step Four, the ALJ summarized Dr. Harrison’s treatment notes and 

opinions as follows:

On September 3, 2013, the claimant was examined by Otis Harrison, 

M.D. in an office visit (Exhibit 16F [(R. 509)]). Dr. Harrison stated 

that the claimant has nasal congestion and a sore throat (Exhibit 17F 

[(R. 510 – 11]). As to the claimant’s physical examination, Dr. 

Harrison noted, “No acute distress.” (Exhibit 17F). With regards to 

the claimant’s respiratory examination, Dr. Harrison noted, 

“Respiratory effort unremarkable. Lungs clear to auscultation 

bilaterally.” (Exhibit 17F). As to the claimant’s musculoskeletal 

examination, Dr. Harrison noted, “Normal gait; Normal station and 

stability; Normal inspection, palpation, stability, muscle strength, 

tone...” [emphasis added] (Exhibit 17F). Dr. Harrison determined that 

the claimant [sic] osteoarthritis in the wrist and degenerative disc 

disease of the lumbar spine (Exhibit 17F). Dr. Harrison did not 

prescribed [sic] any medications (Exhibit 17F). On September 7, 2013 

Dr. Harrison completed and signed a Medical Source Statement 

(Exhibit 16F). Dr. Harrison stated that the claimant was [sic] low back 

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pain, wrist pain and hypertension (Exhibit 16F). As to the claimant’s 

physical activities, Dr. Harrison stated that the a [sic] “increase of 

symptoms to such an extent that bed rest in [sic] necessary.” (Exhibit 

16F). Additionally, Dr. Harrison stated that the claimant is unable to 

engage in any gainful employment (Exhibit 16F).

(R. 29). Fulfilling the requirement that he “state with particularity the weight 

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

631 F.3d at 1179, the ALJ found that Dr. Harrison’s opinion in the Medical Source 

Statement (R. 509) “merits no substantial weight” because it “is not consistent with 

the treatment or examination evidence.” (R. 29). As noted previously, good cause 

exists to discount a treating physician’s opinion when it is not bolstered by the 

evidence and is inconsistent with the physician’s own medical records. Winschel, 

631 F.3d at 1179. The Eleventh Circuit has recently re-emphasized that courts 

“will not second guess the ALJ about the weight the treating physician’s opinion 

deserves so long as he articulates a specific justification for it.” Hunter v. Soc. Sec. 

Admin., Comm'r, 808 F.3d 818, 823 (11th Cir. 2015) (citing Moore, 405 F.3d at

1212). 

Moreover, substantial evidence supports the ALJ’s decision to assign little 

weight to Dr. Harrison’s opinions. As the ALJ noted with emphasis, Dr. Harrison’s 

opinions – that Braggs’s lower back and wrist pain and hypertension precluded him 

from gainful employment and would be so exacerbated by physical activity so as to 

necessitate bed rest – were inconsistent with his treatment notes from an 

examination conducted a mere four days prior, in which he noted “no acute 

distress,” unremarkable respiratory examination, lungs clear to auscultation 

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bilaterally, 7 and normal gait, station, stability, inspection, palpation, stability, 

muscle strength, and tone. Dr. Harrison also prescribed no medication at this 

examination. (R. 29, 510 – 511). 

Dr. Harrison’s opinions were also inconsistent with treatment notes 

concerning Braggs’s physical impairments from several examining, non-treating 

physicians. (R. 27 – 29). Dr. Edward Simms examined Braggs on July 24, 2010, at 

Springhill Medical Center’s emergency room for complaints of pain radiating from 

Braggs’s right flank, noting “no acute distress,” no acute disease process based on a 

portable chest x-ray, a normal sinus rhythm based on an EKG, lungs “clear to 

auscultation bilaterally,” and normal extremities with no obvious deformity. Dr. 

Simms administered a Toradol IV, after which Braggs reported he was “feeling 

much better,” and discharged Braggs that same day with a diagnosis of “back pain” 

and “muscle spasm.” (R. 27 – 28, 345 – 347). Dr. Simms again examined Braggs on 

January 6, 2011, when he returned to the emergency room with complaints of left 

sided chest pain. Dr. Simms noted “no acute distress’” clear lungs with “no acute 

respiratory distress;” nontender extremities with normal range of motion and no 

gross deformities; no joint swelling or instability; and normal blood tests and x-rays. 

Braggs was discharged the same day with “chest wall pain.” (R. 28, 348 – 352). 

Braggs again returned to Springhill Medical Center’s emergency room on February 

 7 “Auscultation” is the method of listening to the sounds of the body during a physical 

examination, usually done using a stethoscope.

(https://www.nlm.nih.gov/medlineplus/ency/article/002226.htm (last visited Mar. 29, 2016)).

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5, and March 10, 2011,8 for complaints of, respectively, shortness of breath and 

moderate sore throat. Different physicians examined Braggs on those visits, with 

their notes indicating unremarkable findings similar to those by Dr. Simms. (R. 28, 

348 – 359).

On March 28, 2012, Braggs visited Dr. Henrietta Kovacs for a consultative 

physical examination. Dr. Kovacs noted that Braggs complained of arthritis of the 

wrist, lower back pain, and difficulty breathing; that his “back and extremities 

examinations were normal;” that he could “do heel and toe walking and squatting in 

both phases;” and that other musculoskeletal examination was largely 

unremarkable, with some limitation in straight leg raising. Dr. Kovacs opined that 

Braggs could lift thirty pounds and carry it a short distance; that he could push and 

pull a grocery cart; that he could not bend but could stoop and squat; that he could 

reach and kneel; that he could climb stairs but get out of breath; and that he can 

crawl but not run or jog.” (R. 28 – 29, 401 – 410). The ALJ assigned “great weight” 

to Dr. Kovacs’s opinions, finding that they “demonstrate that the claimant’s 

physical impairments are not disabling.” (R. 29). 

In asserting that “the opinion of Dr. Harrison is supported by the medical 

evidence of record”, Braggs largely points to various diagnoses from the notes of the 

examining physicians discussed above. (See Doc. 14 at 3 – 4). Tellingly, Braggs 

offers little discussion of Dr. Harrison’s own treatment notes. Indeed, his brief 

makes no mention of Dr. Harrison’s treatment notes from his September 3, 2013 

 8 The ALJ’s opinion mistakenly identifies the examining doctors as “Dr. Edwards” when 

discussing the January – March 2011 examinations. (R. 28).

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examination (R. 510 – 511), the only treatment notes from Dr. Harrison specifically 

discussed by the ALJ in rejecting Dr. Harrison’s September 7, 2013 Medical Source 

Statement. Braggs’s only citation to Dr. Harrison’s treatment notes are diagnoses 

of left wrist pain and low back pain at a March 18, 2013 examination (R. 508) and 

diagnoses of musculoskeletal pain, osteoarthritis of the left wrist, degenerative disc 

disease of L-5 spine, gastroesophageal reflux disease (GERD), chronic bronchitis, 

and hypertension at June 17 and July 26, 2013 examinations (R. 504 – 505). (See

Doc. 14 at 4). However, as the ALJ noted, see supra, these diagnoses were 

accounted for in Dr. Harrison’s September 3, 2013 treatment notes, which the ALJ 

determined did not support Dr. Harrison’s opinions.

The records Braggs cites indicate, at most, that Braggs has a history of back 

and wrist pain. The ALJ did not, however, reject these diagnoses – only Dr. 

Harrison’s opinions as to their limiting effects. The ALJ articulated good cause for 

rejecting Dr. Harrison’s opinions, substantial evidence supports that finding, and 

Braggs has not cited any record evidence that compels a different conclusion. 

Accordingly, the Court OVERRULES Braggs’s assertion of reversible error in 

Claim 1.

B. Claim 2

At Step Four, the ALJ also determined that “the residual functional capacity 

in Exhibit 1A and 3A is generally consistent with the treatment and examination 

evidence and, thus, merits significant weight.” (R. 31). Exhibits 1A (R. 69 – 80) and 

3A (R. 82 – 93) are reports prepared by non-examining state agency physician Dr. 

Case 1:15-cv-00174-N Document 21 Filed 03/29/16 Page 16 of 20
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Gregory Parker on May 1, 2012, during the initial denial of Braggs’s applications. 

Dr. Parker prepared a proposed RFC in each, finding that Braggs could lift and/or 

carry 20 pounds occasionally and 10 pounds frequently; could sit, stand and/or walk 

about 6 hours in an 8-hour workday with normal breaks; could push and/or pull 

with his left upper extremity only occasionally; could occasionally climb ramps and 

stairs, balance, stoop, kneel, crouch, and crawl; could never limb ladders, ropes, or 

scaffolds; and could handle and finger with his left hand only occasionally. (R. 77 –

78, 90 – 91).

Braggs asserts the ALJ improperly rejected the opinion of treating physician 

Dr. Harrison in favor of non-examiner Dr. Parker’s opinion. It is well established in 

this Circuit that “[t]he report of a non-examining doctor ... , standing alone, cannot 

constitute substantial evidence.” Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 

1991) (citing Spencer on behalf of Spencer v. Heckler, 765 F.2d 1090, 1093–94 (11th 

Cir. 1985) (per curiam)). Accord Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). 

However,

[r]egulations require that an ALJ consider the opinions of nonexamining physicians, including state agency [medical] consultants. 20 

C.F.R. § 404.1527(f). The weight due to a non-examining physician’s 

opinion depends, among other things, on the extent to which it is 

supported by clinical findings and is consistent with other evidence. 

See id. § 404.1527(d)(3)–(4); see also Crawford v. Comm'r of Soc. Sec.,

363 F.3d 1155, 1158, 1160 (11th Cir. 2004) (holding that the ALJ did 

not err in relying on a consulting physician's opinion where it was 

consistent with the medical evidence and findings of the examining

physician). Generally, the more consistent a physician’s opinion is with 

the record as a whole, the more weight an ALJ should place on that 

opinion. 20 C.F.R. § 404.1527(d)(4). The opinion of a non-examining 

physician is therefore entitled to little weight when it contradicts the 

opinion of an examining physician. Lamb v. Bowen, 847 F.2d 698, 703 

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(11th Cir. 1988). But where a non-examining physician’s assessment 

does not contradict the examining physician’s report, the ALJ does not 

err in relying on the non-examining physician’s report. See Edwards v. 

Sullivan, 937 F.2d 580, 584–85 (11th Cir. 1991).

Jarrett v. Comm'r of Soc. Sec., 422 F. App'x 869, 873 (11th Cir. Apr. 11, 2011) (per 

curiam) (unpublished).9 If an ALJ has shown good cause to reject the opinion of a 

treating or examining physician, the ALJ may then properly rely on the opinion of a 

non-examining medical source if it is consistent with the objective evidence of 

record. See Flowers v. Comm'r of Soc. Sec., 441 F. App'x 735, 743 (11th Cir. Sept.

30, 2011) (per curiam) (unpublished) (“In sum, because the ALJ articulated good 

cause for discounting the opinions of Flowers’s treating and examining doctors and 

because the consulting doctor’s opinion was consistent with the medical record, 

including the treating and examining doctors’s [sic] own clinical findings, the ALJ 

did not err in giving more weight to the consulting doctor’s opinion.”).10

As explained above, the ALJ articulated good cause to assign little weight to 

the opinions of Dr. Harrison, and substantial evidence supports that decision. 

 9 Though 20 C.F.R. § 404.1527 has been amended since Jarrett was issued, the 

amendments have not affected Jarrett’s substantive application of that regulation.

10 See also SSR 96-6P (S.S.A. July 2, 1996) (“[T]he opinions of State agency medical and 

psychological consultants and other program physicians and psychologists can be given 

weight only insofar as they are supported by evidence in the case record, considering such 

factors as the supportability of the opinion in the evidence including any evidence received 

at the administrative law judge and Appeals Council levels that was not before the State 

agency, the consistency of the opinion with the record as a whole, including other medical 

opinions, and any explanation for the opinion provided by the State agency medical or 

psychological consultant or other program physician or psychologist. The adjudicator must 

also consider all other factors that could have a bearing on the weight to which an opinion 

is entitled, including any specialization of the State agency medical or psychological 

consultant. []In appropriate circumstances, opinions from State agency medical and 

psychological consultants and other program physicians and psychologists may be entitled 

to greater weight than the opinions of treating or examining sources.”).

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Moreover, the ALJ did not base his decision on Dr. Parker’s opinions alone. As 

detailed above, the ALJ considered Dr. Harrison’s treatment notes and the notes of 

several examining physicians. He also assigned “great weight” to the opinions of 

examining physician Dr. Kovacs. The ALJ expressly found Dr. Parker’s opinions to 

be “generally consistent with the treatment and examination evidence,” thus 

meriting “significant weight,” and Braggs has given the Court no reason to question 

this determination. Thus, the ALJ did not err in assigning more weight to nonexamining physician Dr. Parker’s opinions than to the opinions of Braggs’s treating 

physician. Accordingly, the Court OVERRULES Braggs’s assertion of reversible 

error in Claim 2 and finds that the Commissioner’s final decision is due to be 

AFFIRMED.11

 11 Twice incorrectly referring to it as “Eleventh Circuit case law” (see Doc. 14 at 2, 6),

Braggs cites this Court’s decision in Coleman v. Barnhart, 264 F. Supp. 2d 1007 (S.D. Ala. 

2003) (Granade, C.J.), for its holding that “the Commissioner’s fifth-step burden cannot be 

met by ... the residual functional capacity assessment of a non-examining, reviewing 

physician, but instead must be supported by the residual functional capacity assessment of 

a treating or examining physician.” 264 F. Supp. 2d at 1010. Coleman did not cite any 

Eleventh Circuit authority in support of this proposition, and “[t]he opinion of a district 

court carries no precedential weight, even within the same district.” United States v. 

Cerceda, 172 F.3d 806, 812 n.6 (11th Cir. 1999) (en banc) (per curiam). Moreover, this 

holding from Coleman has since been called into doubt. See Packer v. Astrue, Civil Action. 

No 11-0084-CG-N, 2013 WL 593497, at *2-3 (S.D. Ala. Feb. 14, 2013) (Granade, J.) (“Packer 

contends that the ALJ’s RFC determination is not supported by substantial evidence, 

inasmuch as the record does not contain a treating or examining medical source's opinion 

that substantiates the ALJ's RFC. In support of her argument, the Magistrate Judge cites 

Coleman v. Barnhart, 264 F. Supp. 2d 1007 (S.D. Ala. 2003), in which this Court found 

reversible error where an ALJ’s determination was not directly supported by a treating or 

examining physician’s physical capacities evaluation (‘PCE’). However, the fact that no 

treating or examining source submitted such a statement in this case does not, in and of 

itself, mean that there is no medical evidence, much less no ‘substantial evidence,’ to 

support the ALJ's decision.” (citing cases disagreeing with and calling into doubt Coleman)),

aff'd, Packer v. Comm'r, Soc. Sec. Admin., 542 F. App’x 890 (11th Cir. 2013). 

As this Court has since noted, “[n]othing in the regulations requires the ALJ to 

accept at least one medical opinion before rendering a decision—indeed, an ALJ may make 

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V. Conclusion

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

Commissioner’s final decision issued February 25, 2015, denying Braggs’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 29th day of March 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

 

a disability determination without 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 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)).

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