Robbins v. Astrue (CONSENT)

Filing 16

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 3/25/13. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LATOSHA ROBBINS,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,1
Defendant.

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CIVIL ACTION NO. 2:12-CV-674-CSC
(WO)

MEMORANDUM OPINION
I. Introduction.
On June 3, 2009, Latosha Robbins protectively 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. (R. 21). 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. On June 12, 2012 the Appeals Council rejected a subsequent
request for review. (R. 1). The ALJ’s decision consequently became the final decision of
the Commissioner of Social Security (Commissioner).2 See Chester v. Bowen, 792 F.2d 129,

1

2

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.

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

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).3 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 determination4 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.”

Security matters were transferred to the Commissioner of Social Security.
3

Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United
States Magistrate Judge.
4

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.

2

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).5
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 (11 th 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 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, 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).

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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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III. The Issues
A.

Introduction.
Robbins was 35 years old at the time of the hearing before the ALJ. (R. 38, 159).

Robbins’s prior work experience includes work as a housekeeping cleaner and as a napping
machine tender. (R. 50). Robbins last worked as a napping machine tender until December
2007, when the factory in which she worked was closed. (R. 152). Thereafter, she was
unemployed and began attending community college, but did not complete a post-secondary
degree. (R. 166).
B.

The Findings of the ALJ
The ALJ found that Robbins met the insured status requirements of the Social Security

Act through December 31, 2013. (R. 21). Further, the ALJ found that Robbins had the
following severe impairments: morbid obesity, status post right ankle fracture, open
reduction internal fixation. (R. 23).
The ALJ concluded that Robbins does not have an impairment or combination of
impairments that meets or medically equals any of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. (R. 17).
Following the administrative hearing, the ALJ concluded that Robbins
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b), except that she can frequently lift or carry up to
10 pounds, and occasionally lift or carry up to 20 pounds. She can sit for 6
hours total in an 8-hour day, and at one time for 1-2 hours without interruption.
She can stand/walk for 4-6 hours total in an 8-hour day, and at one time for 30
minutes to 1 hour without interruption. The claimant requires a sit/stand
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option, which takes into account the time limitations for sit/stand/walk
activities, plus all allowable and customary breaks that are normally available
in the work place environment. She has no demonstrated issues of limitation
in the use of the hands for simple grasping or fine manipulation and the
pushing and pulling of hand controls. She is limited to occasional use of her
right leg and foot for repetitive movements such as the pushing and pulling of
foot controls, with no limitations on the use of the left leg and foot. She is
limited to occasional bending, stooping, crawling, climbing, use of stairs,
crouching and kneeling. She should never balance. The claimant is precluded
from climbing ladders, ropes or scaffolds and from participating in activities
involving unprotected heights, hazardous or moving machinery or driving
commercial vehicles. In addition, the claimant suffers from mild to moderate
pain, which occasionally interferes with her concentration, persistence and
pace.
(R. 24).
C. The Plaintiff’s Claims.
As stated by the plaintiff, her claims are
1.

Whether the ALJ erred in failing to find a period of disability of at least
twelve months; and

2.

Whether the ALJ’s residual functional capacity findings are based on
substantial evidence.

(Doc. 13 p. 1).
IV. Discussion
A.

The ALJ did not commit reversible error in failing to find a period of disability
of at least twelve months.
On May 7, 2008, Robbins was attending a school field trip to a firehouse with her

daughter. (R. 42). As part of a demonstration of the firehouse facilities, the firemen talked
Robbins into sliding down the fire pole and promised to catch her if she fell. (R. 42). Nine

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feet from the floor, Robbins lost her grip on the fire pole and plummeted to the floor. (R. 42,
222). No fireman was there to catch her. (R. 42). On landing, she “suffered a significantly
displaced distal intra-articular tibia fracture with fibular fracture.” (R. 222).
It is undisputed that, at the time Robbins initially suffered the ankle fracture in May
2009, she was unable to work due to the injury. (R. 69; Doc. 14 p. 6). Thereafter, Robbins
underwent two surgeries on her ankle followed by a significant period of time healing from
the injury. Following her surgery, Dr. David Volgas noted on June 22, 2009 that Robbins
was “doing okay” and that she was “not weight bearing” on her right ankle, “nor should she
be.” R. 228. On September 14, 2009, Robbins again reported to Dr. Volgas for a follow-up
visit for care of the fracture and, at that time, Dr. Volgas noted that Robbins “is doing pretty
well. . . . At present we just need to have her start weight bearing. I will plan on seeing her
back here in about six weeks.” (R. 255). An x-ray performed on September 14, 2009, noted
“progressive interval healing” of the fractures, as well as the fact that Robbins arrived in her
own wheel chair. (R. 254). On October 26, 2009, Robbins reported for a follow-up x-ray
in her own wheel chair, and the x-ray indicated that “there has been progressive healing of
the right ankle since the prior exam of 14 September 2009. There has been no change of
hardware position. There is no loosening of the hardware.” (R. 253).
On July 1, 2010, Robbins consulted Dr. Paul Goldhagen, who noted that an x-ray
indicated that Robbins’s surgical hardware was intact and that the fracture was “healed.” (R.
258). Dr. Goldhagen noted that Robbins’s gait was antalgic and diagnosed chronic ankle

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pain secondary to the fracture and surgical procedure. (R. 258).
At the July 29, 2010 hearing in this case, Dr. Robert Anderson, a non-examining
physician, testified at the request of the ALJ after listening to Robbins’s testimony and
reviewing her medical records. According to Dr. Anderson, Robbins’s medical record
reflected “uneventful healing of the fracture” and “some post-traumatic pain in the left [sic]
ankle.” (R. 48). He also noted that Robbins was “obese,”6 although “there [were] no obesity
complications documented in the medical record.” (R. 49). In Dr. Anderson’s opinion,
Robbins’s condition limited her to light work “with a sit/stand option.” (R. 49).
Based on the evidence, including the medical record and Dr. Anderson’s opinion, the
ALJ found that, from the date of alleged disability onset through the date of his July 22,
2010, decision, Robbins was limited to light work with a number of limitations on her ability
to use her right leg and foot and on her ability to sit, stand, and walk, including the necessity
of a sit/stand option. (R. 21, 24).
Under the social security regulations, “disability” is defined as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical . . .
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). In Robbins’s view, the medical evidence could
support a finding that the period of healing was so protracted that, even if she was not
disabled on the date of the ALJ’s decision, she was nevertheless unable to work due to pain

6

Robbins is 5’2” tall and weighs 338 pounds. (R. 37, 151).

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and swelling in her right ankle as of May 7, 2009, one year after the initial injury. Robbins
argues that the ALJ therefore erred because he “did not bifurcate his findings in any way”
to indicate whether he found that Robbins was sufficiently healed of the ankle fracture prior
to May 7, 2009 that she was no longer disabled at that point in time.
Robbins cites no authority for the proposition that, in a case of progressive healing,
the ALJ must expressly bifurcate his findings to specify the exact point in time at which an
injury no longer prevents the claimant from engaging in substantial gainful activity. Further,
it is the plaintiff, not the Commissioner, who bears “a very heavy burden” of demonstrating
that she is disabled within the meaning of the Social Security Act. 42 U.S.C. § 423(d)(5)(A);
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999) (“An individual who files an application for Social Security disability
benefits must prove that she is disabled.”). None of the evidence cited by Robbins (Doc. 13
pp. 5-7) indicates that Robin was insufficiently healed by May 9, 2009, to engage in
substantial gainful activity.
Moreover, even if there existed some evidence to support Robbins’s theory that her
disability lasted for twelve months, this court does not review the evidence or the decision
of the ALJ de novo. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The record,
including the medical evidence, substantially supports the ALJ’s finding that Robbins “has
not been under a disability within the meaning of the Social Security Act from May 7, 2009
through the date of [the ALJ’s] decision.” (R. 21). Therefore, the ALJ’s decision is due to

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be affirmed. Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004). (“If the
Commissioner’s decision is supported by substantial evidence, this Court must affirm, even
if the proof preponderates against it.”).
B.

The ALJ’s residual functional capacity determination was based on substantial
evidence.
Citing Social Security Ruling 96-8P, Robbins argues that the ALJ erred by not

requiring the nonexamining medical expert to provide a function-by-function analysis of her
residual functional capacity. (Doc. 11 p. 8). To the extent that SSR 96-8P is binding on the
Commissioner,7 see 20 C.F.R. § 402.35(b)(2); Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir.
1981),8 SSR 96-8P does not require that a nonexamining medical expert must provide a
function-by-function analysis of the claimant’s residual functional capacity.

Rather,

consistent with the regulations, SSR 96-8P provides that the determination of a claimant’s
residual functional capacity is a legal determination reserved to the Commissioner, not to a
nonexamining medical expert, and that this determination is to be based on “all of the
relevant evidence in the case record.”

SSR 96-8P (“The RFC assessment is a

function-by-function assessment based upon all of the relevant evidence of an individual’s
ability to do work-related activities.”); see also 20 C.F.R. § 404.1527(d)(2) (providing that

7

Social Security Rulings do not have the force of law and are not binding on the court. Jones v.
Commissioner of Soc. Sec., 423 Fed. Appx. 936, 939 n.4 (11th Cir. 2011).
8

See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc) (adopting as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981).

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determination of residual functional capacity is not a medical opinion, but a legal
determination reserved to the Commissioner); 20 C.F.R. § 404.1545 (a)(1) (“We will assess
your residual functional capacity based on all the relevant evidence in your case record.”).
In this case, the ALJ did not err in considering the testimony of the nonexamining physician
and the evidence as a whole in determining that, despite pain and limited functionality in her
right foot and leg, Robbins had the residual functional capacity to perform light work with
certain limitations such as a “sit-stand option.” See 20 C.F.R. § 404.1545(a)(3) (providing
that, in determining a claimant’s residual functional capacity, “[w]e will consider any
statements about what you can still do that have been provided by medical sources, whether
or not they are based on formal medical examinations.”).
Robbins argues that a consultative examination should have been ordered because the
medical evidence was insufficient for the ALJ to determine that she could perform light work
with limitations such as a sit-stand option. Specifically, Robbins argues that “[i]t is not clear
[from the record] why there was no further follow-up” by Dr. Volgas after October, 2009,
“or under what circumstances [Robbins] was seen by Dr. Goldhagen. However, based on
[Dr. Goldhagen’s] limited clinical findings, an orthopedic examination with X-rays was
warranted in order to more accurately assess [Robbins’s] ability to return to the workforce.”
(Doc. 13 p. 9). Robbins’s argument fails to recognize that, “[in] general, [the claimant is]
responsible for providing the evidence [the Commissioner] will use to make a finding about
[the claimaint’s] residual functional capacity.” 20 C.F.R. § 404.1545(a)(3). Robbins, not a

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consulting physician, would have been the proper source of information as to why Robbins
did not receive further follow-up care from Dr. Volgas or the “circumstances” under which
Dr. Goldhagen performed his examination. In fact, the ALJ did ask Robbins whether she
was seeking continuing medical care and why she had consulted Dr. Goldhagen in July 2010,
and Robbins explained that she chose to consult Dr. Goldhagen rather than Dr. Volgas
because Dr. Goldhagen’s office was located closer to Robbins’s home. (R. 42).
Further, a consultative examination will be ordered for the purpose of determining a
claimaint’s residual functional capacity only “if necessary” after the Commissioner has made
“every reasonable effort to help [the claimaint] get medical reports from [her] own medical
sources.” 20 C.F.R. § 404.1545(a)(3); see also 20 C.F.R. § 404.1512 (“Generally, we will
not request a consultative examination until we have made every reasonable effort to obtain
evidence from your own medical sources.”). Robbins fails to recognize that her own medical
source, Dr. Goldhagen, did perform a orthopedic exam, including review of x-rays which
showed that the fractures had “healed” and that Robbins’s surgical hardware was intact.
Robbins argues that an additional examination would have provided information that was
more “accurate and up[-]to[-]date,” but she identifies no particular inaccuracy or
insufficiency in Dr. Goldhagen’s orthopedic examination, and she does not specify what
additional necessary information another orthopedic examination or another x-ray could have
provided. Further, there is no merit in Robbin’s suggestion that the medical record available
to the ALJ was outdated; Dr. Goldhagen’s examination was performed only two weeks prior

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to the hearing before the ALJ. Accordingly, there is no reason to conclude that a consultative
examination could have provided necessary information that was not already provided by
Robbins’s treating physicians, and ALJ did not err in failing to order a consultative
examination. See 20 C.F.R. § 404. 1519(a) (providing that the Commissioner will order
consultative examination “when we cannot get the information we need from your medical
sources.”).
Robbins argues that the ALJ erred in “suggest[ing] that if [Robbins] were to diet and
exercise, her medical conditions would improve such that she would be more physically fit
and able to do more.” (Doc. 13 p. 8). The court has considered the context of the ALJ’s
observation that Robbins would be able to “do more” “in the future” if she dieted and
exercised to lose weight and become more physically fit (R. 27), and it is clear from the
ALJ’s discussion that this observation did not provide any basis for the ALJ’s residual
functional capacity determination. See U.S. v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir.
2009) (“‘We have defined dictum as a statement in a judicial opinion that could have been
deleted without seriously impairing the analytical foundations of the holding.’” (quoting
United States v. Crawley, 837 F.2d 291, 292 (7th Cir.1988)). Instead, the ALJ’s residual
functional capacity determination was based on Robbins’s physical condition “from May 7,
2009 through” the date of the ALJ’s decision (R. 21), including the observation, based on
medical evidence and the evidence as a whole, that Robbins “is a younger individual and .
. . is not presently manifesting any serious medical symptoms or issues that could be

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particularly impacted by her obesity at this time.” (R. 27 (emphasis added)). Thus, while the
ALJ “noted” Robbins’s “obesity in assessing a reduced residual functional capacity,” taken
in context, the ALJ’s statement about the possibility of future improvement with weight loss
did not provide a basis for the ALJ’s findings; rather, the statement was mere dicta
suggesting that, at some point in the future, Robbins could develop a more expansive residual
functional capacity than that assigned to her the time of the ALJ’s opinion. Because the
statement made by the ALJ about the possibility of future improvement with diet and
exercise was superfluous to the ALJ’s decision, that statement cannot establish the basis for
reversal, whether or not it was speculative or supported by substantial evidence. See Diorio
v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (holding that the harmless error rule prevented
reversal of an ALJ's decision).
V. Conclusion
For the reasons as stated, the court concludes that the decision of the Commissioner
denying benefits to Robbins should be affirmed. See Landry v. Heckler, 782 F.2d 1551,
1551-52 (11th Cir. 1986) (“Because the factual findings made by the [ALJ] . . . are supported
by substantial evidence in the record and because these findings do not entitle [the claimant]
to disability benefits under the appropriate legal standard, we affirm.”).
The Court will enter a separate final judgment.
Done this 25th day of March, 2013.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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