Crittenden v. Colvin
MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 1/3/2017. (kh, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
ROY L. CRITTENDEN,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Civil Action No.: 2:16-cv-21-WC
Roy L. Crittenden (“Plaintiff”) filed an application for social security income under
Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq., on April 6, 2011. His
application was denied at the initial administrative level. Plaintiff then requested and
received a hearing before an Administrative Law Judge (“ALJ”). At that hearing, the ALJ
determined that Plaintiff had the residual functional capacity to perform light work, and
further found Plaintiff was not disabled. Plaintiff appealed the decision to the Appeals
Council, which remanded the case to the ALJ on April 15, 2014, finding that the “decision
does not contain an adequate evaluation of the treating and nontreating source opinions.”
A second hearing was held before an ALJ on July 14, 2014. Following that hearing, the
ALJ issued a decision finding Plaintiff had not been under a disability as defined in the
Social Security Act from May 21, 2010, through the date of the decision. Plaintiff appealed
to the Appeals Council again, which rejected his request for review of the ALJ’s decision.
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 under 42 U.S.C. § 405(g). Pursuant to 28
U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry of
a final judgment by the undersigned United States Magistrate Judge. Pl.’s Consent to
Jurisdiction (Doc. 10); Def.’s Consent to Jurisdiction (Doc. 9). Based on the court’s review
of the record and the briefs of the parties, the court AFFIRMS the decision of the
STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to benefits when the person is
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.
42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 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.
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
(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 [the Listing of
(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
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step Four. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step One through
Step Four. At Step Five, the burden shifts to the Commissioner, who must then show there
are a significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Id. at 1238-39. The RFC is what the claimant is
still able to do despite the claimant’s impairments and is based on all relevant medical and
other evidence. Id. It may contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work
McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits. Supplemental security income cases arising under Title XVI of the Social Security Act
are appropriately cited as authority in Title II cases. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412 (5th
Cir. 1981); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The definition of
disability and the test used to determine whether a person has a disability is the same for claims seeking
disability insurance benefits or supplemental security income.”).
experience to determine if there are jobs available in the national economy the claimant
can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational
Guidelines4 (“grids”) or call a vocational expert (“VE”). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s 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); see also Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the
Commissioner’s findings, [a reviewing court] must affirm if the decision reached is
supported by substantial evidence.”). 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
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was forty-five years old at the time of the alleged disability onset date and
is therefore considered a younger individual according to the regulations. Tr. 59. At the
second hearing before the ALJ, Plaintiff was forty-nine years old and had completed high
school. Tr. 72, 74. Following an administrative hearing, and employing the five-step
process, the ALJ found at Step One that Plaintiff “has not engaged in substantial gainful
activity since May 21, 2010, the alleged onset date[.]” Tr. 43. At Step Two, the ALJ found
that Plaintiff suffers from the following severe impairments: “degenerative joint disease of
the shoulders, history of left rotator cuff impingement, history of left elbow nerve
entrapment, arthritic changes of the knees, carpal tunnel syndrome, diabetes mellitus with
peripheral neuropathy, obesity, and hypertension[.]” Tr. 44. At Step Three, the ALJ found
that Plaintiff “does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments[.]” Tr. 44. Next, the ALJ
articulated Plaintiff’s RFC as follows:
[T]he undersigned finds that the claimant has the residual functional capacity
to perform a range of “sedentary work,” as that term is otherwise defined in
20 CFR 404.1567(a) and 416.967(a). Specifically, the claimant can lift and
carry up to 10 pounds occasionally and less than 10 pounds frequently. He
can stand or walk about 2 hours and can sit for at least 6 hours out of an 8See 20 C.F.R. pt. 404 subpt. P, app. 2.
hour workday. However, he can stand for no more than 20 minutes
continuously and can sit for no more than 1 hour continuously. He can
perform no overhead reaching on the left. He can perform tasks not requiring
rapid, repetitive, forceful g[r]asping, but otherwise can perform handling and
fingering on a frequent basis. He can perform tasks not involving exposure
to workplace hazards such as unprotected heights and dangerous moving
machinery. He can perform tasks not involving operation of vibrating tools
Tr. 45. Having consulted with a VE at the hearing, the ALJ concluded at Step Four that
Plaintiff “is unable to perform any past relevant work[.]” Tr. 59. Finally, at Step Five, and
based upon the testimony of the VE, the ALJ determined that “[c]onsidering the claimant’s
age, education, work experience, and residual functional capacity, there are jobs that exist
in significant numbers in the national economy that the claimant can perform[.]” Tr. 59.
The ALJ identified several representative occupations, including “Machine Tender,”
“Folder,” and “Machine Operator.” Tr. 60. Accordingly, the ALJ determined that Plaintiff
“has not been under a disability . . . from May 21, 2010, through the date of this decision[.]”
Plaintiff argues that “[t]he ALJ erred in failing to give appropriate weight to the
opinions of [Plaintiff’s] treating physician, and [in] failing to properly explain his reasons
for the weight he assigned [to that treating physician].” Pl.’s Br. (Doc. 12) at 1.
“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis,
what [the claimant] can still do despite impairment(s), and [the claimant’s] physical or
mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Absent “good cause,”
an ALJ is to give the medical opinions of treating physicians “substantial or considerable
weight.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R. §§
404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause to discount the opinion of a treating
physician exists “when the: (1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion
was conclusory or inconsistent with the doctor’s own medical records.” Phillips v.
Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). With good cause, an ALJ may disregard
a treating physician’s opinion, but he “must clearly articulate [the] reasons” for doing so.
Id. at 1240–41.
Moreover, the ALJ must state with particularity the weight given to different
medical opinions and the reasons therefor. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th
Cir. 1987) (per curiam). “In the absence of such a statement, it is impossible for a
reviewing court to determine whether the ultimate decision on the merits of the claim is
rational and supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981). Therefore, when the ALJ fails to “state with at least some measure of
clarity the grounds for his decision,” a court will decline to affirm “simply because some
rationale might have supported the ALJ’s conclusion.” Owens v. Heckler, 748 F.2d 1511,
1516 (11th Cir. 1984) (per curiam). In such a situation, “to say that [the ALJ’s] decision
is supported by substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions reached are rational.”
Cowart, 662 F.2d at 735 (quoting Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979))
(internal quotation marks omitted).
Plaintiff argues that the ALJ erred in failing to give appropriate weight to the
opinions of Plaintiff’s treating physician, Dr. Jeffrey Voreis, and in failing to properly
explain his reasons for the weight he assigned Dr. Voreis. Doc. 12 at 4-7. The undersigned
Upon completion of a medical source statement in 2011, Dr. Voreis indicated that
Plaintiff can lift or carry occasionally 5-10 pounds. Tr. 748. He indicated that Plaintiff
could stand and/or walk less than two hours and for thirty minutes uninterrupted, and could
sit less than two hours and less than thirty minutes uninterrupted in an eight-hour workday.
Tr. 749. He concluded that Plaintiff can occasionally finger, handle, and reach, as well as
stoop, crouch, kneel and climb. Tr. 749-750. He concluded that Plaintiff could never crawl
or balance and should avoid concentrated exposure to being around moving machinery and
driving automobile equipment. Tr. 750.
In 2014, Dr. Voreis provided an updated statement regarding Plaintiff’s physical
abilities. See Tr. 879-892. In that assessment, Dr. Voreis stated that he felt Plaintiff was
not able “to work any employment in the country for an 8 hour day or a 40 hour week. . .
.” Tr. 879. He referenced the disability exam performed in 2011, and stated that Plaintiff
could “now lift probably up to 20 or 25 pounds with his right upper extremity[,]” and
“approximately ten pounds” in his left extremity. Tr. 880. Dr. Voreis noted that, since his
2011 exam, “as a result of work, that [Plaintiff] has achieved a significant improvement in
range of motion especially of his upper extremities.” Tr. 884. Nonetheless, Dr. Voreis
concluded that Plaintiff would not meet the criteria for sedentary work because he “cannot
sit, stand, walk, nor carry less than ten pounds for more than a few minutes at a time.” Tr.
884. He further noted that he felt Plaintiff would be unable to do repetitive tasks, such as
ticket tearing “because his hands will go numb and he will start dropping the the tickets
and not have the strength to grip them.” Tr. 884. Dr. Voreis expected Plaintiff’s condition
to continue to decline. Tr. 885.
In determining that he would “not give controlling weight to the opinions of Jeffrey
Voreis, M.D., regarding claimant’s physical functional abilities[,]” the ALJ provided the
following reasons for discounting the opinion:
Dr. Voreis indicates that the claimant cannot perform sedentary work on a
regular and continuing basis, 8-hours a day, 40-hours per week. Dr. Voreis
is a treating source for the claimant; however, his opinions are inconsistent
with the substantial evidence in this case. For example, in November 2011,
Dr. Voreis stated that the claimant can stand or walk less than 2 hours and sit
less than 2 hours in an 8-hour workday. The doctor found, on examination,
that the claimant had 3/5 strength in all muscle groups of the lower
extremities[.] Yet, his clinical finding is inconsistent with his own records
showing the claimant to have normal gait and no focal neurologic deficits[.]
His clinical finding is inconsistent with those of Dr. Epperson . . . , Dr.
Banner . . ., Dr. Meadows . . ., and Dr. Watson . . ., who all found the claimant
to have a +4-5/5 strength in the lower extremities. His clinical finding is
inconsistent with claimant’s own reports that he has no difficulty sitting and
uses no assistive, such as a cane, for ambulation[.] In November 2011, Dr.
Voreis stated that the claimant can only occasionally handle, finger and reach
with both hands[.] On examination the doctor found the claimant to have
absent reflexes in his upper extremities, diminished sensation in both hands,
and 90 degrees abduction and external rotation of the left shoulder. His
clinical findings are inconsistent with those of Dr. Epperson . . ., Dr. Banner
. . ., Dr. Meadows . . ., and Dr. Watson . . . . These doctors generally indicate
that the claimant has slight weakness and decreased sensation of the left
hand, a “somewhat” numb sensation to light touch over the hands, normal or
near-normal range of motion of the left shoulder . . ., normal range of motion
of the right shoulder, 2/4 or intact reflexes, and +4-5/5 strength in the upper
extremities with no atrophy. His clinical findings are inconsistent with
claimant’s own reports that he has no difficulty reaching . . .; that he uses no
assistive devices such as wrist splints . . ., and that he can use his hands to
care for his personal needs; mop; sweep; do laundry, dishes and some
cleaning; turn a door knob; drive a car; and perform work picking up small
limbs and brush and putting them in a chipper[.]
T. 58. Thus, while the ALJ acknowledged that Dr. Voreis was a treating source for
Plaintiff, he did not afford him controlling weight, as he found his opinions inconsistent
with the substantial evidence in the case, including evidence from his own examinations,
evidence from Plaintiff’s self-reports, and evidence from other physicians. Tr. 58.
As an initial note, it is clear to the undersigned that the ALJ properly justified his
reasons for discounting the medical opinion of Dr. Voreis. Indeed, the ALJ noted that Dr.
Voreis’s opinion conflicted not only with statements from the Plaintiff and from other
physicians, but also with his own examination of Plaintiff. As such, the undersigned
concludes that the ALJ had “good cause” to discount the opinion of Dr. Voreis, a treating
physician of Plaintiff. See Phillips, 357 F.3d at 1241 (11th Cir. 2004) (noting that good
cause exists “when the: (1) treating physician’s opinion was not bolstered by the evidence;
(2) evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.”).
Having determined that the ALJ provided good cause for discounting the opinion of
Dr. Voreis, the undersigned turns to whether the ALJ committed reversible error by failing
to assign a particular weight to Dr. Voreis’s opinion. Clearly, the ALJ discounted the
opinion of Dr. Voreis and afforded it something less than controlling weight. However,
that weight is not specified anywhere within the ALJ’s opinion.
“Ordinarily, an ALJ’s failure to explain the particular weight given to the different
medical opinions provided is reversible error.” Tillman v. Comm’r, Soc. Sec. Admin., 559
F. App’x 975, 975 (11th Cir. 2014) (quoting Sharfarz, 825 F. 2d at 279). “However, when
the ALJ’s error did not affect its ultimate findings, the error is harmless, and the ALJ’s
decision will stand.” Id. That is the case here. Substantial evidence in the record supports
the ALJ’s articulation of Plaintiff’s RFC, including evidence from other treating and nonexamining physicians. Thus, the ALJ’s failure to specify the particular weight he afforded
the opinions of Dr. Voreis is harmless error.
The ALJ articulated the following restrictions in Plaintiff’s RFC:
Plaintiff can perform sedentary work.
Plaintiff can lift up to ten pounds occasionally and less than ten pounds
Plaintiff can stand or walk about two hours and can sit for at least six hours
during an eight-hour workday. However, he can stand for no more than
twenty minutes continuously and can sit for no more than one hour
Plaintiff can perform no overhead reaching on the left.
Plaintiff can perform tasks not requiring rapid, repetitive, forceful grasping,
but otherwise can perform handling and fingering on a frequent basis.
Plaintiff can perform tasks not involving exposure to workplace hazards such
as unprotected heights and dangerous moving machinery.
Plaintiff can perform tasks not involving operation of vibrating tools or
Dr. Sam Banner, whom the ALJ affored “some weight,” performed a consultative
physical examination of Plaintiff and completed a medical source statement regarding
Plaintiff’s functional abilities. See Tr. 779-784. Dr. Banner advised that Plaintiff could
lift and carry up to twenty pounds occasionally. Tr. 779. He determined that Plaintiff
could sit up to eight hours, and for two hours uninterrupted; stand for one hour, and for
thirty minutes uninterrupted; and walk for thirty minutes, and for fifteen minutes
uninterrupted. Tr. 780. He found that Plaintiff could frequently use the dominant right
hand for handling, fingering, feeling and pushing/pulling and occasionally use it for
reaching. Tr. 781. While he noted that Plaintiff could never use the left hand for reaching
overhead, he could use the left hand occasionally for reaching in other directions, as well
as for handling, fingering, feeling, pushing and pulling. Tr. 781. Dr. Banner determined
that Plaintiff could occasionally use his feet for the operation of foot controls and could
occasionally climb stairs and ramps, balance, stoop, kneel and crouch. Tr. 782.
Dr. William Watson, whom the ALJ afforded “some weight,” performed a
consultative physical examination of Plaintiff and reached similar conclusions to Dr.
Banner when completing a medical source statement regarding Plaintiff’s physical
abilities. See Tr. 797-802. In his assessment, Dr. Watson found that Plaintiff can
frequently lift and carry up to twenty pounds and occasionally lift or carry up to fifty
pounds. Tr. 797. He determined Plaintiff could sit five-and-a-half hours in an eight-hour
workday, and for one hour uninterrupted. Tr. 798. He found Plaintiff could stand or walk
thirty minutes during a workday, and for five to ten minutes uninterrupted. Tr. 798. He
noted that Plaintiff can frequently use his right hand for reaching and occasionally use his
right hand for handling, fingering and feeling, and pushing and pulling. Tr. 799. Dr.
Watson noted that Plaintiff could occasionally use his left hand for handling, fingering and
feeling, but never for reaching, pushing, or pulling. Tr. 799. He determined that Plaintiff
can occasionally use his feet for the operation of foot controls, climb stairs and ramps,
balance, stoop, kneel, crouch and crawl. Tr. 798-799. He concluded that Plaintiff should
never use ladders or scaffolds, and should avoid unprotected heights. Tr. 799.
Finally, the ALJ relied upon the opinion of Dr. Robert Heilpern, whom he afforded
less than significant weight.
Dr. Heilpern, who was not an examining physician,
determined that Plaintiff could occasionally lift twenty pounds. Tr. 737. He concluded
that Plaintiff could stand and/or walk, with normal breaks, for a total of six hours, and could
sit for a total of six hours in a workday. Tr. 737. Dr. Heilpern felt Plaintiff would be
limited in his upper extremities in pushing and pulling, as well as his ability to reach,
handle, finger, and feel. Tr. 737, 739. Finally, Dr. Heilpern determined that Plaintiff could
frequently climb ramps/stairs, balance, stoop, and kneel, but could never crawl or climb
ladders or ropes. Tr. 738.
The RFC articulated by the ALJ is consistent with the opinions of Dr. Banner, Dr.
Watson, and Dr. Heilpern. Indeed, all three doctors agreed that Plaintiff could carry up to
twenty pounds frequently. Plaintiff’s RFC restricted him to lifting and carrying ten pounds
occasionally and less than ten pounds frequently. Dr. Banner determined that Plaintiff
could sit for eight hours while Dr. Watson determined Plaintiff could sit for five-and-a-half
hours. Dr. Heilpern opined that Plaintiff could sit for six hours. Plaintiff’s RFC restricted
him to sitting for no more than six hours in an eight-hour day, and no more than one hour
continuously. Dr. Banner determined that Plaintiff could stand for an hour and walk for
thirty minutes, while Dr. Watson determined that Plaintiff could stand or walk for thirty
minutes. Dr. Heilpern concluded that Plaintiff could stand and/or walk for approximately
six hours per day. Plaintiff’s RFC restricted his standing and walking to no more than two
hours per working day, and additionally restricted Plaintiff’s standing for no more than
twenty minutes continuously. Finally, Dr. Banner and Dr. Watson similarly agreed that
Plaintiff could frequently use his right extremity, while his left extremity could be used
occasionally for some tasks, and never for reaching. Dr. Heilpern concluded that Plaintiff
had limitations in reaching, handling, fingering and feeling. Plaintiff’s RFC restricted him
to tasks that do not involve overhead reaching with the left hand.
Clearly, there are some contradictions between Dr. Voreis’s assessment of
Plaintiff’s physical abilities and the assessments of Dr. Banner and Dr. Watson. However,
the ALJ gave good cause to discount the opinion of Dr. Voreis. That being said, the ALJ’s
articulation of Plaintiff’s RFC predominately reflect the assessments of Dr. Banner, Dr.
Watson, and Dr. Heilpert, whom the ALJ afforded “some weight” or less than significant
weight. As the ALJ’s articulation of Plaintiff’s RFC is supported by the assessments of
those physicians, the undersigned concludes that there is sufficient evidence in the record
to support the ALJ’s RFC assessment. Thus, the ALJ’s error, if any, of failing to assign a
particular weight to the opinion of Dr. Voreis is harmless, and the ALJ’s decision should
not be reversed on that basis.
The court has carefully and independently reviewed the record and concludes that,
for the reasons given above, the decision of the Commissioner is AFFIRMED. A separate
judgment will issue.
Done this 3rd day of January, 2017.
/s/ Wallace Capel, Jr.
UNITED STATES MAGISTRATE JUDGE
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