Gilbert v. Astrue

Filing 16

OPINION. Signed by Honorable Judge Terry F. Moorer on 2/28/2012. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
SARA ALICE GILBERT,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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CIVIL ACTION NO. 2:11cv331-TFM
(WO)

OPINION
I. Introduction
Plaintiff Sara Alice Gilbert (“Gilbert”) applied for supplemental security income
benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., alleging that

she is unable to work because of a disability. Her application was denied at the initial
administrative level. Gilbert then requested and received a hearing before an Administrative
Law Judge (“ALJ”). Following the hearing, the ALJ concluded that the plaintiff was not
under a “disability” as defined by the Social Security Act. The ALJ, therefore, denied the
plaintiff’s claim for benefits. 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).
Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the

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.

United States Magistrate Judge. The case is now before the court for review pursuant to 42
U.S.C. § 405(g) and § 1631(c)(3). Based on the court’s review of the record in this case and
the parties’ briefs, the court concludes that the Commissioner’s decision is due to 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 determination,2 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 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).3

2

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.
3

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).

2

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); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “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). A reviewing court may not look only to those parts of the
record which support 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 1179 (11th Cir. 1986).
[The court must] . . . 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. Administrative Proceedings
Gilbert was 52 years old during the hearing and completed the tenth grade of high
school. (R. 47-48.) Gilbert has prior work experience as a short-order cook. (R. 37, 49, 57.)
Gilbert alleges that she became disabled on April 9, 2007, from back and neck pain, carpal
tunnel syndrome, high blood pressure, and headaches. (R. 50-51, 54, 56.) After the hearing,
the ALJ found that Gilbert suffers from severe impairments of mild obesity; bilateral carpal
tunnel syndrome, mild right, moderate on the left; mild degenerative disc disease of the
cervical spine; and gastroesophageal reflux disease and non-severe impairments of benign
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hypertension and history of asthma. (R. 24.) The ALJ also found that Gilbert is unable to
perform her past relevant work, but that she retains the residual functional capacity to perform
less than the full range of light work. (R. 30.) Testimony from the vocational expert led the
ALJ to conclude that a significant number of jobs exist in the national economy that Gilbert
may perform, such as work as a ticket seller, garment sorter, and mail clerk. (R. 33.)
IV. The Plaintiff’s Claims
As stated by Gilbert, she presents the following issue for the court’s review:
Whether the final decision of the Commissioner of the Social Security
Administration denying benefits to Plaintiff is supported by substantial
evidence and whether improper legal standards were applied.
Specifically, the ALJ erred in failing to fully develop the record and in failing
to find favorably under the medical vocational rules.
(Doc. No. 13, Pl. Brief, p. 1.)
V. Discussion
A. The Duty to Develop the Record
Gilbert argues that the ALJ should have resolved inconsistences in the record by recontacting Dr. Kishore Chivulka, a consultative psychologist, eliciting additional testimony
from a medical expert, or obtaining another consultative examination. Specifically, Gilbert
claims that an ambiguity exists because the results of a nerve conduction study were not
incorporated into Dr. Chivulka’s report to the Commissioner. Gilbert argues that “in light of
the fact that Dr. Chivulka’s reference to [the nerve conduction study] ends in a sentence
fragment . . . it does appear to have been done afterwards. . . .” (Doc. No. 13, p. 6.) Gilbert
also contends that Dr. Chivulka’s determination that she is able to use both hands constantly
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for pushing, pulling, handling, fingering, and feeling is inconsistent with the results of the
nerve conduction study. (Id., p. 7.)
An administrative law judge has a duty to develop a full and fair record. Kelley v.
Heckler, 761 F.2d 1538 (11th Cir. 1985). When there is a conflict, inconsistency, or
ambiguity in the record, the ALJ has an obligation to resolve the conflict, giving specific
reasons supported by the evidence as to why he accepted or rejected an opinion regarding the
plaintiff’s capacity for work. See Baker v. Astrue, No. 1:11cv35-CSC (M.D. Ala. 2012). See
also Battle v. Astrue, 243 Fed. Appx. 514, 523 (11th Cir. 2007).
During the hearing on September 4, 2008, the ALJ determined that an evaluation by
a consultative neurologist and an EMG nerve conduction study of Gilbert’s hands and arms
were necessary. (R. 58.) The ALJ subsequently ordered a consultative examination and
additional testing. The medical records indicate that, on September 25, 2008, Dr. Chivulka
conducted an examination of Gilbert, administered a nerve conduction study and completed
both a neurological evaluation for disability report and a medical source opinion form. (R.
315-323.)
Dr. Chivuluka’s report concerning his clinical impression of Gilbert’s evaluation does
contain one isolated sentence fragment. Specifically, Dr. Chivuluka noted:
Presents for evaluation of multiple complaints. History is not
consistent. Clinical examination does not show significant
pathology. Nerve conduction studies and EMG of both upper
extremities was performed and t
(R. 316.) Gilbert places great emphasis on this grammatical error, arguing that the sentence
fragment establishes that Dr. Chivuluka did not review the nerve conduction study before
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entering his findings in the report and medical source opinion form. Dr. Chivuluka’s notes,
however, clearly indicate that “[n]erve conducting studies and EMG of both upper extremities
w[ere] performed” before he prepared the disability report. (Id.) More importantly, the
medical records indicate that Dr. Chivuluka was the administrator of the nerve conduction
study referenced in the report. Thus, the medical evidence clearly establishes that Dr.
Chivuluka was aware of the results of the nerve conduction study at the time he prepared his
report.
The court finds that Dr. Chivuluka’s summary of the nerve conduction study is not in
any way inconsistent with the conclusions in the disability report or his findings in the
medical source opinion form. In his summary of the nerve conduction study, Dr. Chivuluka
found as follows:
NCS:
1.

Delayed peak latency, normal SNAP amplitude and slow nerve
conduction velocity in fingers to wrist segment of the right
median sensory nerve. Delayed peak latency, low SNAP
amplitude (D2) only and normal nerve conduction velocity in the
fingers to wrist segment of the left median sensory nerve.

2.

Delayed peak latency, low SNAP amplitude and slow nerve
conduction velocity in fingers to wrist segments of the right and
left ulnar sensory nerves.

3.

Prolonged terminal latencies, normal F-latencies, normal CMAP
amplitude and normal nerve conduction velocity of the right and
left median motor nerves.

4.

Normal terminal and F-latencies, normal CMAP amplitude and
normal nerve conduction velocity of the right ulnar motor nerve.
Prolonged terminal latency, normal F-latency, normal CMAP
amplitude and normal nerve conduction velocity of the left ulnar
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motor nerve.
EMG:
Normal resting activity, normal insertional activity, normal motor unit
amplitude and duration with normal recruitment pattern in all tested muscles of
the right and left upper extremities. Normal needle EMG of right and left
cervical paraspinal muscles.
Conclusion:
These electrophysiological findings are indicative of moderate carpal tunnel
syndrome, moderate on left and mild on right. There is no evidence for ulnar
neuropathy.
(R. 323.)
In the medical source opinion form, Dr. Chivuluka found that Gilbert has the residual
functional capacity to lift and carry ten to fifteen pounds constantly and twenty pounds
frequently; push or pull and reach overhead with both arms and handle constantly; and handle,
finger, and feel with both hands constantly. Gilbert argues that the ALJ should have obtained
additional information from Dr. Chivuluka or another consultative physician to determine
whether a finding that she is able to use both hands constantly is consistent with the results
of the nerve conduction study indicating that she suffers from moderate carpal tunnel
syndrome on the left and mild carpal tunnel syndrome on the right. Although Dr. Chivuluka
did not differentiate between Gilbert’s left and right hands when determining she is able to
use handle, finger, and feel constantly, Dr. Chivuluka’s findings that Gilbert is right handed,
is able to oppose thumbs to fingertips and suffers from moderate carpal tunnel syndrome on
the left coupled with mild on the right without ulnar neuropathy supports his conclusion that
Gilbert is able to perform certain hand functions on a constant basis. This court therefore
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concludes that there is no ambiguity or inconsistency with respect to Dr. Chivuluka’s findings
concerning Gilbert’s ability to use her hands.
Even assuming arguendo that Dr. Chivuluka’s opinion was inconsistent with the
objective medical evidence, the court concludes that the ALJ adequately developed the record
by consulting a medical expert, Dr. James Anderson, at the supplemental hearing. “Medical
experts are considered experts in the Social Security disability programs and their opinions
may be entitled to great weight if their opinions are supported by the evidence in the record.”
Skrzynski v. Astrue, No. 2:11cv36-SPC, 2011 WL 5357818, *6 (M.D. Fla. 2011) (citing 20
C.F.R. §§ 404.1512(b)(6), 404.1527(f)(2)(I)(iii), 413.912(b)(6), 416.927(f)(2)(l)(iii), and SSR
96-6p). During the hearing, the following exchange occurred:
Representative :

Doctor, if I understood your testimony correctly, the
claimant has more problems with her left hand than with
her right?

Medical Expert:

Yes, sir.

Representative:

And would that – the problems she has, would that affect
her ability for fine or gross manipulation or both?

Medical Expert:

It would both limit her use of that hand for both
(INAUDIBLE) to only occasional.

Representative:

Okay, I have nothing further, Your Honor.

ALJ:

That on the left, is that what you’re --

Medical Expert:

Yes, sir on the left. On the right she’d be able to use it
frequently.

(R. 39-40.) Thus, the medical expert testified that Gilbert would be able to perform both fine
and gross manipulation with her left hand occasionally and with her right hand frequently.
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Dr. Anderson’s testimony is supported by the objective medical records. (R. 321-323.) The
court therefore concludes that the ALJ adequately developed the record and resolved any
inconsistencies in Dr. Chivuluka’s medical records concerning Gilbert’s ability to use her
hands by consulting a medical expert. The court also notes that the ALJ included Dr.
Anderson’s opinion that the claimant would be able to occasionally perform fine and gross
manipulation with her left hand and frequently perform those activities with her right in his
hypothetical question to the vocational expert.
Given the medical records indicating that Gilbert is right-hand dominant with carpal
tunnel syndrome which is mild on the right and moderate on the left and Dr. Anderson’s
opinion that Gilbert would be able to use her right hand frequently and her left hand
occasionally, the court concludes that the ALJ did not err in failing to seek an additional
consultative examination or otherwise develop the record. See Holladay v. Bowen, 848 F.2d
1206, 1209 (11th Cir. 1988) (The ALJ is not required to order a consultative examination
unless the record demonstrates that an examination is necessary for the ALJ to render a
decision.).
B. The Medical-Vocational Guidelines
Gilbert contends that the ALJ improperly applied the Medical-Vocational Guidelines,
20 C.F.R. Pt. 404, Subpt. P., App. 2 (“Grids”) because Rule 201.14 establishes that she is
disabled. According to Gilbert, the ALJ improperly concluded that she could perform light
work when, under the Guidelines, her exertional limitations establish she can perform no more
than sedentary work.
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Exclusive reliance on the grids is appropriate only when a claimant has no nonexertional impairments that significantly limit her basic work activities. Foote v. Chater, 67
F.3d 1553 (11th Cir. 1995); Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
[I]n determining residual functional capacity only exertional limitations are
considered . . . If a claimant has nonexertional impairments that significantly
limit the ability to do basic work activities . . . then the grid regulations do not
apply. . . . However, when both exertional and nonexertional work impairments
exist the grids may still be applicable. [N]on–exertional limitations can cause
the grid to be inapplicable only when the limitations are severe enough to
prevent a wide range of gainful employment at a designated level. Therefore,
when both exertional and nonexertional limitations affect a claimant’s ability
to work, the ALJ should make a specific finding as to whether the
nonexertional limitations are severe enough to preclude a wide range of
employment at the given work capacity level indicated by the exertional
limitations. Courts will review this determination only to determine whether
it is supported by substantial evidence.
Sryock, 764 F.2d at 836 (internal citations omitted).
The crux of Gilbert’s claim concerns the ALJ’s determination that she could perform
less than the full range of light work. Gilbert argues that the ALJ should have found her to
be capable of no more than sedentary work based on her obesity and postural limitations, such
as her inability to heel, toe, or tandem walk and her significant difficulty in squatting and
rising, as well as her upper extremity limitations. The Social Security Administration has
developed a sequential evaluation process to determine if a plaintiff is disabled. 20 C.F.R.
§§ 404.1520 and 416.920. It is the plaintiff’s responsibility to demonstrate an inability to
return to her past relevant work. Lucas, supra. After a plaintiff has shown that she cannot
perform her past relevant work, the burden then falls upon the Commissioner to show that
there are other jobs in the national economy that the plaintiff can perform. Jones v. Apfel, 190
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F.3d 1224, 1228 (11th Cir. 1999).
The ALJ determined by expert vocational testimony that there are other light jobs that
Gilbert could perform in the national economy within the limitations of her impairments.
During the hearing, the following exchange between the ALJ and vocational expert occurred:
Q:

Okay. Well, for our first hypothetical then, let me ask you to
assume a person of the claimant’s age, she’s in the age range of
51 to 52, and she has a 10th grade education, and this past
relevant work history. She is right-hand dominant, based on
previous testimony. Now, for our hypothetical, I’d like to adopt
the limitations set out at Exhibit 12F, pages four to six. I believe
that’s the relevant pages. We will modify that slightly based on
Dr. Anderson’s testimony. Briefly indicated, as far as handling
and fingering, that would be occasionally for the left and
frequently for the right. Now, based on that information, could
you give me your opinion whether such a person could do – oh,
I’m going to assess mild to moderate pain by the way, which
occasionally interferes with concentration, persistence and pace.
Let me just make a note. . . . All right, based on that information,
could you give me your opinion of whether such a person would
be capable of doing any of the claimant’s past relevant work?

A:

Your Honor, past relevant work would be precluded.

Q:

Okay. Now are there any other jobs that such a person could do?

A:

Yes, Your Honor.

Q:

Okay. If you could give some examples.

A:

All right. Several examples would be ticket seller, this is DOT
number 411.407-030, this job is light and unskilled work with an
SVP: 2, 1,000 of these jobs exist regionally, regionally referring
to the State of Alabama; 200, 700,000 or more exist nationally.
A second example would be a garment sorter, this is DOT
number 222.687-014, this [] job is light unskilled work with an
SVP: 2, 2,000 of these jobs exist regionally; 429,000 or more
exist nationally. A third example, would be a mail clerk, with the
exception of U.S. postal service employees, this is DOT number
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209.687-026, this is light, unskilled work with an SVP: 2. . . .
(R. 42.)
During the colloquy, the ALJ incorporated Exhibit 12F, which includes Dr.
Chivuluka’s medical source opinion regarding Gilbert’s limitations. In the medical source
opinion, Dr. Chivuluka found that Gilbert is able to lift or carry ten to fifteen pounds
constantly and twenty pounds frequently; push or pull with both arms and legs constantly;
climb, balance, crouch, crawl occasionally; stoop and kneel frequently; and handle, finger,
feel, talk, hear, and reach overhead constantly. (R. 317-318.) The consultative neurologist
also found that Gilbert is able to work in extreme cold, heat, humidity, and vibration
frequently, as well as work around fumes, dust, or poor ventilation occasionally. (R. 319.)
In a handwritten note on page 6 of the opinion, Dr. Chivuluka advises the reader to “pl[ease]
refer to dictated notes.” (R. 318.) In the typewritten and/or dictated report which was
prepared on the same day as the medical source opinion, Dr. Chivuluka provides more
specific details concerning Gilbert’s limitations. For example, he found that Gilbert weighs
201 pounds and her flexion and extension movements of the thoraco lumbar spine are limited
due to body habitus. (R. 315-316.) Dr. Chivuluka also found that Gilbert’s gate was normal
and that she has significant difficulty in squatting and raising from the squatting position. (R.
316.) He concluded his report as follows:
Physical CE emphasis Sheet addition:
Based on my medical findings, in my opinion about the claimant’s ability,
despite the impairments, to do work related activities such as standing, walking,
lifting, carrying, handling, sitting, hearing, speaking and traveling are possible.
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(Id.)

Thus, the ALJ met his responsibility by incorporating the report which referred to

Gilbert’s specific physical limitations into his hypothetical question to the vocational expert
concerning her ability to perform light work jobs. See Jones, supra.
In addition, the ALJ relied heavily on the opinion of Dr. Chivuluka when determining
Gilbert has the residual functional capacity to perform light work. This court’s review of the
medical records indicates that the ALJ’s findings concerning Gilbert’s limitations are
consistent with Dr. Chivuluka’s opinion.

Consequently, the ALJ’s reliance on Dr.

Chivuluka’s opinion regarding Gilbert’s work restrictions is supported by substantial
evidence.4

Based on the foregoing, the court concludes that the ALJ’s determination that,

based on Gilbert’s age, education, work experience, and residual functional capacity for light
work, with restrictions which include simple grasping, fine manipulation and feel with her
right hand frequently and her left hand occasionally; climbing, balancing, crouching, and
crawling occasionally; and working in or around extreme temperatures and other
environmental factors frequently, there are jobs that exist in significant numbers in the
national economy that she can perform is supported by substantial evidence. This court must
accept the factual findings of the Commissioner if they are supported by substantial evidence
and based upon the proper legal standards. Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).

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Gilbert argues that the ALJ erred by failing to properly designate the weight to which he assigned
each medical opinion. After reviewing all the medical evidence and Gilbert’s testimony, the ALJ determined
that Gilbert was not disabled. The ALJ heavily relied on the opinion of Dr. Chivuluka in his analysis. Even
though the ALJ did not specifically state the specific weight he assigned to each piece of evidence, the ALJ
recited all the applicable law and detailed all the relevant medical evidence. More importantly, even if it was
error, it is harmless. The opinion of the ALJ shows that he carefully considered the evidence in this case and
was extremely familiar with it. A remand is not required on this basis.

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VI. Conclusion
The court has carefully and independently reviewed the record and concludes that
substantial evidence supports the ALJ’s conclusion that the plaintiff is not disabled. Thus,
the court concludes that the decision of the Commissioner is supported by substantial
evidence and is due to be affirmed.
A separate final judgment will be entered.
Done this the 28th day of February, 2012.

/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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