Poke v. Astrue

Filing 18

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 1/23/2012. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
MELISSA ANN POKE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CIVIL ACT. NO. 1:10CV768-CSC

MEMORANDUM OPINION
I. Introduction.
The plaintiff applied for disability insurance benefits pursuant to Title II of
the Social Security Act, 42 U.S.C. § 401 et seq. and for supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et
seq., alleging that she was unable to work because of a disability. Her application
was denied at the initial administrative level. The plaintiff then requested and
received a hearing before an Administrative Law Judge ("ALJ"). Following the
hearing, the ALJ also denied the claim. The Appeals Council rejected a
subsequent request for review. The ALJ's decision consequently became the final

decision of the Commissioner of Social Security (Commissioner).1 See Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for
review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3).2 Based on the court's
review of the record in this case and the briefs of the parties, the court concludes
that the decision of the Commissioner should be affirmed.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits
when the person is unable to
engage in 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 12 months...
To make this determination3 the Commissioner employs a five step,
sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the specific
1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L.
No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to
Social Security matters were transferred to the Commissioner of Social Security.
2

Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the
United States Magistrate Judge.
3

A "physical or mental impairment" is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.

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impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the
economy?
An affirmative answer to any of the above questions leads either to
the next question, or, on steps three and five, to a finding of
disability. A negative answer to any question, other than step three,
leads to a determination of "not disabled."
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The standard of review of the Commissioner's decision is a limited one.
This court must find the Commissioner's decision conclusive if it is supported by
substantial evidence. 42 U.S.C. § 405(g); Ingram v. Comm. of Soc. Sec. Admin.,
496 F.3d 1253, 1260 (11th Cir. 2007). "Substantial evidence is more than a
scintilla, but less than a preponderance. It is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971); Crawford v. Comm'r of Soc.
Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004). A reviewing court may not look
only to those parts of the record which supports the decision of the ALJ but
instead must view the record in its entirety and take account of evidence which
detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d
4

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case
(SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are
appropriately cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir.
1981) (Unit A).

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1179, 1180 (11th Cir. 1986). The court "may not decide the facts anew, reweigh
the evidence, or substitute . . . [its] judgment for that of the [Commissioner]."
Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration in
original) (quotation marks omitted).
[The court must, however,] . . . scrutinize the record in its entirety to
determine the reasonableness of the [Commissioner's] . . . factual
findings . . . No similar presumption of validity attaches to the
[Commissioner's] . . . legal conclusions, including determination of
the proper standards to be applied in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. The plaintiff was 33 years old at the time of the hearing
before the ALJ and has a 11th grade education. The plaintiff’s prior work
experience includes work as a forklift operator, spray painter and fast food worker.
Following the administrative hearing, the ALJ concluded that the plaintiff has
impairments of discoid lupus, borderline intellectual functioning, personality
disorder and depression. Nonetheless, the ALJ concluded that the plaintiff was
not disabled because the plaintiff has the residual functional capacity to perform
sedentary work with restrictions.
B. The Plaintiff's Claims. As stated by the plaintiff, her claims are
1.

The Commissioner's decision should be reversed because the ALJ's
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residual functional capacity determination regarding Ms. Poke's
physical capacity lacks the support of substantial evidence, as the
record is devoid of any physical residual functional capacity
assessment completed by any physician.
2.

The Commissioner's decision should be reversed because the ALJ
neglected his duty to develop a full and fair record as required.

3.

The Commissioner's decision should be reversed because the ALJ
failed to properly identify, consider, or discuss all of Ms. Poke's
severe impairments.
IV. Discussion

A. Residual Functional Capacity Assessment. The ALJ concluded that
the plaintiff has the residual functional capacity
to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a)
and 416.967(a) except the claimant can lift, carry, and push/pull ten
pounds, stand and walk two hours in an eight-hour day, and sit six
hours in an eight-hour day. The claimant can understand, remember,
and carry out very short, simple instructions and attend for periods of
two hours, but contact with the general public and changes in the
work setting should be minimal.
(R. at 22)
“Residual functional capacity, or RFC, is a medical assessment of what the
claimant can do in a work setting despite any mental, physical or environmental
limitations caused by the claimant's impairments and related symptoms. 20 C.F.R.
§ 416.945(a).” Peeler v. Astrue, 400 Fed.Appx. 492, 494 n.2 (11th Cir. 2010). The
plaintiff contends that the record must contain a residual functional capacity
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determination by a physician. However, the plaintiff’s argument conflates the
nature of residual functional capacity with the responsibility for making the
residual functional capacity determination. The Commissioner’s regulations
clearly show who is responsible for making the residual functional capacity
determination when a case has reached the administrative law judge hearing.
If your case is at the administrative law judge hearing level or at the
Appeals Council review level, the administrative law judge or the
administrative appeals judge at the Appeals Council (when the
Appeals Council makes a decision) is responsible for assessing your
residual functional capacity.
20 CFR § 404.1546.
But that observation does not end the enquiry. The essential question raised
by the plaintiff is whether it is necessary to have a residual functional capacity
assessment by a medical provider as part of the evidence which an ALJ must
consider in reaching a determination. In this case, the answer is no. First, the ALJ
stated that he
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 C.F.R.

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§§ 404.1529 and 416.9295 and SSRs 96-4p6 and 96-7p.7 The
Administrative Law Judge has also considered opinion evidence in
accordance with the requirements of 20 C.F.R. §§ 404.1527 and
416.9278 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p.9
(R. at 22)
Furthermore, the ALJ considered the opinion of the State Agency
psychologist, noting that the opinion was “consistent with medical evidence as a
whole.” (R. at 20-21) See Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th
Cir.1991) (ALJ did not err in relying on the opinion of a nonexamining physician
where the physician's opinion was consistent with the opinions of examining
physicians). Thereafter, the ALJ reviewed and considered the other medical
evidence including the records of Dr. Tamburin, the plaintiff’s treating
dermatologist (R. at 367-77) and the psychological consultant’s examination. (R.
at 384-86) In short, there was sufficient medical evidence upon which the ALJ

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These regulations explain how the Commissioner evaluate symptoms, including pain.

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This Ruling clarifies the policy of the Social Security Administration on the evaluation of
symptoms in the adjudication of claims for disability benefits under title II and title XVI of the Social
Security Act.
7

This Ruling clarifies when the evaluation of symptoms, including pain, requires a finding about
the credibility of an individual and explains the factors to be considered in assessing the credibility of the
individual's statements about symptoms.
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These regulations describe how the Commissioner evaluates opinion evidence.

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Generally, these Rulings describe how the Commissioner evaluates and uses medical source
opinions.

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could make a reasoned decision, and he stated with particularity the weight he
gave to the evidence and his reasons for considering it. See Sharfarz v. Bowen,
825 F.2d 278, 279 (11th Cir.1987) (per curiam) (ALJ must state with particularity
the weight given to different medical opinions and the reasons therefor). The
court concludes there was sufficient medical evidence before the ALJ from which
he properly could made a residual functional capacity assessment.
B. Full and Fair Record. The plaintiff argues that the duty to develop a
full and fair record was neglected in several ways in the instant case. First, Poke
argues that fairness required that the ALJ order a consultative examination or
obtain a medical source opinion from one of Poke's treating physician's in order to
properly develop the record regarding Poke's residual functional capacity. “In light
of the limited amount of medical evidence regarding her condition, a CE or
medical source opinion was necessary.” (Pl. Br. at 6)
These arguments improperly shift to the Commissioner the burden of
establishing the evidentiary basis from which Poke’s residual functional capacity
may be determined. In the fourth step of the sequential analysis, the ALJ
determines the claimant's RFC and her ability to return to her past relevant work.
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir.2004). While the ALJ has the
responsibility to make a determination of plaintiff's RFC, it is plaintiff who bears
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the burden of proving her RFC, i.e., she must establish through evidence that her
impairments result in functional limitations and that she was “disabled” under the
Social Security Act. See 20 C.F.R. § 404.1512 (instructing claimant that the ALJ
will consider “only impairment(s) you say you have or about which we receive
evidence” and “[y]ou must provide medical evidence showing that you have an
impairment(s) and how severe it is during the time you say that you are disabled”).
See also Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.2001) (it is
claimant's burden to prove RFC, and ALJ's responsibility to determine RFC based
on medical records, observations of treating physicians and others, and claimant's
description of limitations). The ALJ was not required to secure a medical source
opinion about Poke’s residual functional capacity.
The plaintiff relies on several opinions of other district courts for the
proposition that the Commissioner’s fifth-step burden must be supported by a
residual functional capacity assessment of a physician. Respectfully, the court
disagrees to the extent that these cases suggest that the fourth-step residual
functional capacity determination must be based on a medical source evaluation.
It appears that the cases which seem to so hold conflate the fourth and fifth step of
the sequential analysis with respect to who has the burden of developing the
evidence necessary to determine residual functional capacity. For the same
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reasons, the ALJ was not under a duty to order a consultative examination
concerning Poke’s physical capacity.10
The ALJ had before him sufficient medical and psychological evidence
from which he could make a reasoned determination of Poke’s residual functional
capacity. He was not required to secure from a medical source a residual
functional capacity assessment.
The plaintiff argues that a consultant

C. All of Poke’s Impairments.

or medical source opinion was required for the ALJ to properly evaluate her stab
wound and “subsequent chest pain.” (Pl. Br. at 8) Poke was stabbed in the chest
in 2007, which caused a “subtle left sided pneumothorax . . .” (R. at 303) She was
admitted to the hospital on April 14, 2007. (R. at 283) Poke supports her argument
in this way:
[P]rogress notes from Dr. Barry Taylor's office dated April 16, 2008,
state that Ms. Poke had "been having chest pain where she was
stabbed last [year]" (Tr. 379). On that date, Dr. Taylor noted that she
was to continue taking Acetaminophen 650 mg two to three times
daily, and he added a prescription for Ultram 50 mg, to be taken three
times daily, for pain control (Tr. 378). Considering this information,
the ALJ should have concluded that further development was
10

Nation v. Barnhard, 153 F.Appx 597 (11th Cir. 2005), does not hold that an ALJ must secure an
residual functional capacity assessment from a medical source. Nation argued that the ALJ did not fully
and fairly develop the record because one of his physicians did not complete an assessment. The court
held that the record contained sufficient other evidence from which the ALJ could reach his conclusion.
Nation does not stand for the proposition that an ALJ must always secure an residual functional capacity
evaluation from a medical source.

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necessary to determine the severity of the stab wound and what
limitations, if any, arose there-from.
Pl. Br. at 9.
This argument misrepresents the record. Poke did indeed complain about
chest pain, but these complaints were made to a nurse on April 16, 2008. The
physician’s notes do not mention chest pain, and his assessment of her on April 16
was hypertensive, allergic rhinitis, headaches and insomnia. (R. at 378) No
mention was made by hime of chest pain or other problems related to Poke’s stab
wound. Thus, the record does not support Poke’s argument that the pain
medications were given to her for chest pain. An administrative law judge is not
required to order a consultative examination unless the record establishes that such
an examination is necessary to enable the administrative law judge to render a
decision. Holladay v. Bowen, 848 F.2d 1206, 1210 (11th Cir.1988). Here the
record does not support Poke’s contention that more information was needed.
Poke next contends that the ALJ failed to consider the side effects of her
medications. There is no need to dwell on this claim. Poke’s physicians discussed
with her the side effects of the drugs, but other than some stomach problems (R. at
367) there is no evidence that Poke experienced any side effects which might
impair her ability to work.

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Finally, Poke alleges that the ALJ erred because he failed to consider her
status post stab wound as a severe impairment. Only slight, trivial impairments
that “would clearly not be expected to interfere with the individual's ability to
work, irrespective of age, education or work experience” are not severe.
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.1986). As noted above,
Poke’s comment about chest pain was made to a nurse, and the doctor’s notes do
not mention that pain. (R. at 378) Those notes plainly do not show the pain
medication was prescribed for chest pain because the doctor does not mention that
pain in his notes. Id. Poke has failed to fulfill her burden to demonstrate that her
status post stab wound had any impact on her ability to work.
D. The Question of Poverty. In his opinion, the ALJ premised in part his
conclusion that Poke was not disabled on her failure to comply with her doctors’
orders or consistently seek treatment. (R. at 23). After the court initially reviewed
this case, the court entered an order requiring the parties to file supplemental
briefs on the issue of whether the ALJ erred in failing to consider Poke’s poverty
as a legitimate reason for these failures. In Dawkins v. Bowen, 848 F.2d 1211
(11th Cir. 1988), the court held that while a remediable or controllable medical
condition is generally not disabling, when a claimant is unable to afford prescribed
treatment and has no way to obtain it, a condition that is disabling in fact is also
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legally disabling. After a careful review of the record, the court concludes that the
question of Poke’s poverty has no bearing on this case. Even though neither party
so informed the court, a close review of the record shows that Dawkins is a
Medicaid recipient. On a Social Security Administration form asking about
physicians who have treated her, Poke states that “Medicaid informed me that I
was assigned to Dr. Taylor in August and the earliest he can see me is 112007 . . .”
(R. at 208) On February 2, 2008, Poke was admitted to the hospital for outpatient
surgery. The admission form shows that her Medicaid card was scanned at the
time of her admission. (R. at 323) Thus, Poke had the ability to secure treatment,
and her poverty does not excuse her failures to seek it.
V. Conclusion
For the foregoing reasons, the court concludes that the decision of the
Commissioner is due to be affirmed. A separate final judgment will be entered.
Done this 23rd day of January, 2012.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE