MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, District Judge.

I. INTRODUCTION

Plaintiff Sarah Whitten ("Ms. Whitten") brings this action under 42 U.S.C. § 405(g). Ms. Whitten seeks a review of a final adverse decision of the Commissioner of the Social Security Administration ("Commissioner"), who denied her application for supplemental security income ("SSI"). Ms. Whitten exhausted the administrative remedies available before the Commissioner. This case is now ripe for judicial review under section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g).

The Court carefully reviewed the record and AFFIRMS the ALJ's decision.

II. RELEVANT BACKGROUND

The amended alleged onset date is December 12, 2013. (Tr. 51). Ms. Whitten suffers from numerous severe impairments, but the ALJ found that none rendered her disabled. (Id. at 53-54, 67). Ms. Whitten filed an application for Social Security benefits on December 12, 2013. (Id. at 51). The Social Security Administration denied that application on March 16, 2014. (Id.). Administrative Law Judge Bruce W. MacKenzie held a hearing on September 24, 2015. (Id. at 51, 67). The ALJ issued his decision on December 28, 2015, which was unfavorable to Ms. Whitten. (Id. at 67). In that opinion, the ALJ found that Ms. Whitten did not meet the disability standard at Steps Three and Five. (Id. at 54, 66). Ms. Whitten requested the Appeals Council review the claim. (Id. at 2-5). The Appeals Council refused. (Id.).

III. STANDARDS

The court's review of the Commissioner's decision is narrowly circumscribed. The function of this court is to determine whether the decision of the Commissioner is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This court must "scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will determine that the ALJ's opinion is supported by substantial evidence if it finds "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. Substantial evidence is "more than a scintilla, but less than a preponderance." Id. Factual findings that are supported by substantial evidence must be upheld by the court.

The ALJ's legal conclusions, however, are reviewed de novo, because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, the ALJ's decision must be reversed. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).

IV. STATUTORY AND REGULATORY FRAMEWORK

To qualify for disability benefits and establish his or her entitlement for a period of disability, a claimant must be disabled as defined by the Social Security Act and the Regulations promulgated thereunder.1 The Regulations define "disabled" as "the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months." 20 C.F.R. § 404.1505(a). To establish an entitlement to disability benefits, a claimant must provide evidence about a "physical or mental impairment" that "must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 404.1508.

The Regulations provide a five-step process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). The sequential analysis goes as follows:

Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further show that such work exists in the national economy in significant numbers. Id.

V. FINDING OF THE ADMINISTRATIVE LAW JUDGE

After considering the record, the ALJ made the following findings:

(Tr. 53-67) (emphasis omitted).

VI. ANALYSIS

Ms. Whitten raises two distinct issues on appeal. The first is whether the ALJ properly evaluated the physicians' opinions. The second is whether the ALJ properly applied the Eleventh Circuit pain standard. After careful review, the Court determines that there is no reversible error.

A. The ALJ Did Not Commit Reversible Error in His Treatment of the Physician Testimony

The first issue is whether the ALJ properly evaluated the medical opinions in this case. Ms. Whitten argues that the ALJ erred in giving greater weight to "the non-examining statements from the DDS paper doctor" than the other medical sources. (See Doc. 9 at 9).

1. Dr. Morgan

Ms. Whitten argues that the "ALJ distort[ed] Dr. Morgan's findings" and omitted facts from the exam. (See Doc. 9 at 10-11). She also argues that the ALJ erred by failing to take into account the limitations noted by Dr. Morgan. (See id. at 11).2 In response, the Commissioner argues that the ALJ was correct to give partial weight to this opinion for several reasons. (See Doc. 12 at 6).3

The Commissioner first argues that "Dr. Morgan was not a treating provider so his opinion was not entitled to controlling weight." (See Doc. 12 at 6) (citing sources). Ms. Whitten agrees, but argues that the ALJ still "did not properly evaluate it." (See Doc. 13 at 3). The Court notes that Dr. Morgan's opinion is not controlling. See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (citing Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986)) ("Also their opinions are not entitled to deference because as one-time examiners they were not treating physicians.").

Second, the Commissioner argues that "some of [Ms. Whitten's] statements to Dr. Morgan were inconsistent with the remaining record." (See Doc. 12 at 6). In particular, Dr. Morgan noted "[suicidal] thoughts" in his evaluation. (Tr. 726). The ALJ adequately discussed the medical records supporting that Ms. Whitten had suicidal thoughts but only in the past. (Tr. 64); (Tr. 771).

Third, the Commissioner argues that "Dr. Morgan's opinion was inconsistent with his own treatment notes." (See Doc. 12 at 7) (citing sources). This was noted by the ALJ as well. (Tr. 64) ("Further, his opinion does not remotely match his own clinical findings."). On review, the Court agrees. (See Tr. 722-30). After an examination showing mostly unremarkable findings, Dr. Morgan assigned severe limitations to Ms. Whitten's "ability . . . to do work-related activities." (Tr. 725-28); (but see Tr. 729). For example, Dr. Morgan's records show almost completely normal range of motion. (Tr. 727-28). They show normal dexterity and grip strength. (Id. at 728). Dr. Morgan also noted that Ms. Whitten was "a well-developed, well-nourished claimant who is cooperative and does not appear acutely ill." (Id. at 723). Although there were some "pain behaviors", Ms. Whitten was "able to ambulate independently [and] transfer independently." (See id.).4 Additionally, it appears that the limitations afforded by Dr. Morgan were based primarily on Ms. Whitten's own statements. (See id. at 722) ("[S]he states she can only sit for five to [ten] minutes before she has lower back pain."). That matters. See Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) ("Dr. Ruiz's opinion that Crawford is permanently and totally disabled is inconsistent with his own treatment notes, unsupported by the medical evidence, and appears to be based primarily on Crawford's subjective complaints of pain.").

Finally, the Commissioner argues that the ALJ made proper determinations on the fibromyalgia and neuropathy. (See Doc. 12 at 8-11). Ms. Whitten concedes that "detailed testing regarding tender points are not in the record." (See Doc. 13 at 4). However, Ms. Whitten argues that Dr. Go and Dr. Morgan diagnosed her with fibromyalgia and that "there is also no doctor who has specifically refuted the fibromyalgia diagnosis." (See id.). That is not enough. SSR 12-2p states that the Commissioner "cannot rely upon the physician's diagnosis alone." See SSR 12-2p. Ms. Whitten fails to argue that she met the fibromyalgia standard in SSR 12-2p. (See id.). Importantly, " the claimant bears the burden of proving [disability]." Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing the Code of Federal Regulations).

The parties also discuss whether the ALJ was correct to discount Dr. Morgan's opinion on neuropathy. (See Doc. 12 at 8); (see Doc. 13 at 4). The Commissioner notes that this diagnosis "[was] based on [Ms. Whitten's] subjective complaints and not supported by the record." (See Doc. 12 at 8). Ms. Whitten responds by citing to portions of the record that purport to show the symptoms of neuropathy. (See Doc. 13 at 4). The Court notes that Dr. Morgan's opinion on neuropathy seems to be based primarily on Ms. Whitten's own statements. (See Tr. 722-24) ("The claimant states that she has a problem with . . . peripheral neuropathy."). As a rule, an ALJ may "discount[] a treating physician's opinion . . . when the opinion appears to be based primarily on the claimant's subjective complaints of pain." Freeman v. Barnhart, 220 F. App'x 957, 960 (11th Cir. 2007) (citing another source). Additionally, the Court notes that, in Dr. Morgan's opinion, he noted largely normal findings regarding Ms. Whitten's extremities. (See Tr. 724). The ALJ noted this as well. (See id. at 58-59, 64). Further, even if the ALJ erred in not accepting the diagnosis of neuropathy, this error was harmless as the record is clear that he considered Ms. Whitten's entire condition and the whole record. (See Tr. 56-57). Even if the ALJ did not accept the label of neuropathy, there is no indication that he ignored the symptoms. (See id. at 54, 56-65).

Accordingly, the ALJ committed no reversible error in his consideration of the evidence from Dr. Morgan.

2. Dr. Bentley

Ms. Whitten argues that the ALJ did not properly examine Dr. Bentley's opinion. (See Doc. 9 at 11-12). Ms. Whitten argues that the ALJ only accepted some of Dr. Bentley's opinion while disregarding evidence that did not support his conclusion. (See id. at 12). Specifically, Ms. Whitten takes issue with the ALJ's treatment of Dr. Bentley's opinions on repetitive work and PTSD. (See id. at 11-12).

In response, the Commissioner points out that "Dr. Bentley was not a treating provider so his opinion was not entitled to controlling weight." (Doc. 12 at 12) (citing 20 C.F.R. §416.929(c); Denomme v. Comm'r of Soc. Sec., 518 F. App'x 875, 878 (11th Cir. 2013)). The Commissioner also notes that much of Dr. Bentley's opinion "was based on [Ms. Whitten's] subjective complaints." (See id.) (citing sources). Specifically, the Commissioner argues that Dr. Bentley's repetitive work limitation was not supported by the record. (See id. at 12-14). Ms. Whitten replies by restating her arguments that the ALJ was "substitut[ing] his opinion for that of the consulting pyschologist." (Doc. 13 at 5). She also cites to Marbury v. Sullivan to support her arguments that the ALJ needed to explain why he did not credit Dr. Bentley's repetitive work finding. (See id. at 6) (citing Marbury v. Sullivan, 957 F.2d 837, 839, 840-41 (11th Cir. 1992)).5

Dr. Bentley is a consultative examiner. (Tr. 64). That means that his opinion does not deserve controlling weight. See Denomme v. Comm'r of Soc. Sec., 518 F. App'x 875, 877 (11th Cir. 2013) ("The ALJ does not have to defer to the opinion of a physician who conducted a single examination, and who was not a treating physician.") (citing McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987)). The Court also notes the principles espoused in Shaw v. Astrue:

Shaw v. Astrue, 392 F. App'x 684, 686-87 (11th Cir. 2010).

It is important to note that the ALJ did not have to give "good cause" to reject Dr. Bentley's opinion. See Shaw, 392 F. App'x at 687. The ALJ also did not have to refer to every individual shred of evidence. See id. at 686 (citing another source). However, the ALJ did have to explain his reasons why he gave less weight to the opinion. See id. at 687. He did so here.

The ALJ adequately explained why he gave less weight to Dr. Bentley's non-controlling opinion. (Tr. 64). He specifically noted Dr. Bentley's finding on repetitive work. (See id.). He also specifically noted the PTSD diagnosis. (See id.). Clearly, the ALJ did not ignore this part of Dr. Bentley's opinion. (See id.). He then notes that there was no diagnosis for "rheumatoid arthritis or right-sided sciatica." (See id.). He also noted that there was no diagnosis of "fibromyalgia or lupus from an acceptable medical source." (See id.). Ms. Whitten does not contest either of these statements, and after searching the record the Court can find no diagnosis for any of those impairments in the relevant time period before the ALJ. The ALJ acknowledged the existence of major depressive disorder but also noted the lack of a diagnosis of borderline intellectual functioning. (See id. at 65). Ms. Whitten provides no citations to any portion of the record where support for that diagnosis could be, other than with Dr. Bentley. (See Doc. 9 at 11-12); (see Doc. 13 at 5-6). Again, while the ALJ did not have to show good cause to reject Dr. Bentley's opinion, the Court notes that one way to show good cause is that the "`opinion was not bolstered by the evidence.'" See Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (citing another source). Contrary to Ms. Whitten's arguments that the ALJ was substituting his opinion for that of Dr. Bentley, the ALJ merely took Dr. Bentley's opinion and compared it to the entire record to see if it was supported. (See Doc. 9 at 12); (Doc. 13 at 5). Here, the ALJ's decision that Dr. Bentley's opinions were not entirely supported by the record is supported by substantial evidence.

Additionally, the Court notes that Ms. Whitten sought treatment at the CED Mental Health Center. (See id. at 861-75). These records are after her meeting with Dr. Bentley and before the date of the ALJ's opinion, meaning that the ALJ had the benefit of these records while Dr. Bentley did not. (See id.). In these records, the Court could find no diagnosis of PTSD or borderline intellectual functioning. (See id.). In fact, her records reflect no impairment in intelligence. (See id. at 870). Additionally, the Court could not find any indication that Ms. Whitten was limited in her ability to do repetitive work. (See id. at 861-75).

For these reasons, the ALJ's determination regarding Dr. Bentley is supported by substantial evidence.

3. Dr. Estock

Ms. Whitten argues that the ALJ erred in his consideration of Dr. Estock's opinion. (See Doc. 9 at 9-10). She argues that the ALJ omitted parts of Dr. Estock's limitations without explanation. (See Doc. 9 at 9-10); (see Doc. 13 at 6-7). While the Commissioner broadly argues that the ALJ did not err in considering Dr. Estock, the Commissioner does not directly tackle this issue. (See Doc. 12 at 14). However, on review, the Court is unpersuaded by Ms. Whitten's arguments.

Ms. Whitten states that the ALJ ignored Dr. Estock's opinions on "[her] need for a `well-spaced work setting,' flexible day schedule, and `casual, non-intense interaction' with the general public and coworkers." (See Doc. 9 at 10) (citing Tr. 56-57, 120-22). The ALJ actually included in his RFC that Ms. Whitten "should have no more than occasional contact with the general public." (Tr. 57). The ALJ also noted that Ms. Whitten needed "constructive non-confrontational criticism" and that any "changes in the work place setting" should be "introduced gradually and infrequently." (See id.). Additionally, Dr. Estock only stated that "the claimant would function best with a flexible day schedule in a well-spaced work setting." (See Tr. 122) (capitalization omitted) (emphasis added). Dr. Estock did not note the flexible day schedule and well-spaced work setting as a limitation; he did not say that without those two things she could not function at all. If Dr. Estock wanted to say that Ms. Whitten needed those two things, he could have said so. He did not.6

Ms. Whitten also points out that "Dr. Estock did not perform a review of a complete case record, as at least 225 pages of records are added to the file after the date of his opinion." (Doc. 9 at 10). Dr. Estock rendered his opinion on March 17, 2014. (Tr. 110). Many of the medical records in this case are dated after March 17, 2014. This is important because, under SSR 96-6p, a "State agency medical and psychological consultant['s]" opinion must be "based on a review of a complete case record" to possibly receive "greater weight than the opinions of treating or examining sources." See SSR 96-6p. However, it is significant that while Dr. Estock might not have seen the entire record, the ALJ did. See Cooper v. Comm'r of Soc. Sec., 521 F. App'x 803, 807 (11th Cir. 2013) ("Moreover, even if the non-examining doctor was unable to review all of [claimant's] medical records before making her RFC determination, she cited several portions of the record in support of her conclusions, and the ALJ, who made the ultimate determination, had access to the entire record as well as Cooper's testimony."). Here, Ms. Whitten does not argue that the ALJ did not have the entire record existing at that time before him when he made his decision. Further, Dr. Estock's opinion contains numerous references to the underlying medical records. (Tr. 115-16).

Accordingly, there is no reversible error in how the ALJ treated Dr. Estock's opinion.

4. Dr. Go

Ms. Whitten also mentions the "treating source statements from Dr. Go." (Doc. 9 at 12) (citing Tr. 965). These statements are dated after the ALJ's decision. (See Tr. 965-67). Ms. Whitten argues that they are "new and material evidence which should be considered on remand." (See id. at 13). However, the Appeals Council has already considered this evidence and found that it "[did] not provide a basis for changing the. . . decision." (Tr. 3, 6). This means that a Sentence Six remand is inappropriate. See Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007) (citing sources). This is because "[a] remand to the Commissioner is proper under sentence six when new material evidence that was not incorporated into the administrative record for good cause comes to the attention of the district court." See id. (citing sources) (emphasis added). Here, the evidence was made a part of the administrative record and considered. (Tr. 3, 6).

Since this evidence was considered by the Appeals Council, the Court must determine whether Dr. Go's opinion means that the ALJ's decision is not supported by substantial evidence. See Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1266-67 (11th Cir. 2007). The Commissioner urges the Court to find that Ms. Whitten has waived this argument as inadequately developed. (See Doc. 12 at 15). Ms. Whitten believes that this argument has not been waived because she "presented the treating source statement to the Appeals Council as new and material evidence and again raised the matter on appeal to this court." (See Doc. 13 at 7). The Court agrees with the Commissioner. Ms. Whitten just briefly mentions Dr. Go in her argument section. (See Doc. 9 at 12-13). She cites three pages from the record and not single case or statute in support. (See id.). This weakly developed argument has been waived.

Even if not waived, this argument is ultimately unpersuasive. It appears that Dr. Go's opinion is wholly conclusory. (See Tr. 965-67). "A treating physician's report `may be discounted when it is not accompanied by objective medical evidence or is wholly conclusory.'" Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991)). Additionally, the Court notes that neither party has cited to the underlying medical records supporting Dr. Go's opinions. (See Doc. 9 at 6, 12-13); (Doc. 12 at 14-15); (Doc. 13 at 7-8). The cited records appear to be a fill-in-the-blank form supplied by Ms. Whitten's attorney. (Tr. 965-67). Further, Dr. Go's conclusory opinions are not supported by the record as a whole.

Accordingly, Ms. Whitten's arguments regarding Dr. Go are unpersuasive.

B. The ALJ Did Not Commit Reversible Error in His Application of the Eleventh Circuit Pain Standard

Finally, Ms. Whitten argues that "[t]he ALJ committed reversible error when he failed to properly apply the requisite two-step test to evaluate Ms. Whitten's complaints of pain and anxiety/depression." (Doc. 9 at 13) (emphasis omitted). The Commissioner disagrees, arguing that substantial evidence supports the ALJ's determination. (See Doc. 12 at 15-19). On review, the Commissioner has the better of the arguments.

The Eleventh Circuit has explained the pain standard:

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002).

First, Ms. Whitten claims that she has "chronic pain and depression symptoms which she experiences daily." (See Doc. 9 at 13) (citing Tr. 85-91, 97-98). Additionally, "[s]he testifies that she has trouble ambulating or sitting for long periods and needs to alternate positions due to back pain." (See id.) (citing Tr. 92-93). However, the record tells a different story. Dr. Morgan's notes indicate that "[s]he is able to ambulate independently without an assistive device." (Tr. 723). There were numerous unremarkable, or only mildly remarkable, medical findings regarding Ms. Whitten's use of her extremities. (See Tr. 441, 743, 760, 772, 892, 904, 933).The ALJ spent time discussing Ms. Whitten's use of her extremities in the course of his opinion. (See Tr. 57-61, 64). The ALJ also discussed Ms. Whitten's back pain. (See Tr. 57-60, 63-64). Despite Ms. Whitten's arguments to the contrary, the ALJ's opinion is supported by substantial evidence.

Ms. Whitten then turns to SSR 96-8p. (See Doc. 9 at 14). Under that rule, "[t]he RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis." SSR 96-8p. Additionally, "[w]ork-related mental activities generally required by competitive, remunerative work include the abilities to: understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting." Id. Ms. Whitten argues that the ALJ's opinion "does not adequately provide reasons for rejecting" the evidence relating to her alleged mental impairments. (See Doc. 9 at 14). However, the ALJ's opinion does adequately explain his rationale related to her mental impairments. (See Tr. 61-65). He also notes the restrictions shown by the medical record. (See id. at 62-63). In fact, the ALJ actually noted fairly broad limitations regarding Ms. Whitten's mental impairments and how they affect her ability to function at work. (See Tr. 56-57).

Ms. Whitten implies that the ALJ used the wrong standard in this case. (See Doc. 9 at 14-15). However, Ms. Whitten does not say where the ALJ actually used the wrong standard. (See id.). Additionally, Ms. Whitten argues that the ALJ cherry-picked the evidence that suited his theory of the case. (See id. at 15). However, in making that argument, Ms. Whitten does not bring to the attention of the Court any piece of evidence that the ALJ omitted, much less one that would constitute reversible error. (See id.). Accordingly, these arguments are unpersuasive.

There is no reversible error in how the ALJ approached applied the Eleventh Circuit pain standard. He adequately explained his rationale and his conclusion is supported by substantial evidence. After reviewing the parties' arguments and the record, the Court determines that Ms. Whitten's second argument does not merit reversal.

VII. CONCLUSION

While the Court may have come to different conclusions if it had the free hand to re-weigh the evidence, it simply is not provided that luxury. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Bloodsworth, 703 F.2d at 1239). When faced with an opinion supported at the very least by substantial evidence and the proper legal standards, this Court must affirm. For these reasons, the decision of the Commissioner is due to be, and hereby is, AFFIRMED.

DONE and ORDERED.