Kelley v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION and ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/27/2012. (AHI )

FILED
2012 Apr-27 PM 04:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
ROBERT DONALD KELLEY,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.

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Civil Action No. CV-11-S-3104-E

MEMORANDUM OPINION AND ORDER
Claimant Robert Donald Kelley commenced this action on August 24, 2011,
pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of
the Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”),
and thereby denying his claim for a period of disability and disability insurance
benefits. For the reasons stated herein, the court finds that the Commissioner’s ruling
is due to be affirmed.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253

(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that: (1) the ALJ’s finding that claimant is capable of performing
light work is not supported by substantial evidence; (2) the ALJ impermissibly
assigned “great weight” to the opinion of the non-treating, non-examining state
agency physician; (3) the ALJ erred in finding that claimant’s participation in
activities of daily living undermined his disability claim; and (4) the ALJ improperly
considered claimant’s alleged noncompliance with prescribed treatment. Upon
review of the record, the court concludes that these contentions are without merit.
The primary problem with claimant’s arguments is that claimant last met the
insured status requirements of the Social Security Act on June 30, 2008.1 Claimant
therefore bore the burden of proving disability on or prior to June 30, 2008. See 42
U.S.C. § 423(a) and (c); 20 C.F.R. §§ 404.101, 404.130, and 404.131; Ware v.
Schweiker, 651 F. 2d 408, 411 n.3 (5th Cir. July 1981).2 Most of the evidence on
which claimant relies to support his arguments relates to injuries to his hand and
shoulder. Those injuries all occurred after claimant’s date last insured, and any

1

See Tr. at 17.

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
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impairments resulting from those injuries are therefore irrelevant to claimant’s claim
for benefits.3
The evidence dating before June 30, 2008 relates primarily to claimant’s
hearing problems. Even though claimant had a tumor removed from his ear in
November of 2008, the medical evidence does not reflect that he experienced
disabling hearing impairments prior to that date. Dr. Morton Goldfarb, the ear, nose,
and throat specialist who removed claimant’s tumor, noted on July 27, 2007, that
claimant complained of gradual hearing loss, noises, and pain in his right ear, as well
as dizziness and imbalance. Even so, on examination, Dr. Goldfarb noted claimant
could hear conversational voices, that his external ears had no lesions or tenderness
to palpitation, that his tympanic membrane was normal with no lesions or
perforations, and that no fluid was present behind his tympanic membranes. Dr.
Goldfarb made similar findings on August 10, 2007.4 Claimant did not see Dr.
Goldfarb again until September 29, 2008, because he had gotten “sidetracked.”5 The
tumor was removed soon after that, and claimant made good post-surgical progress,
except for some nerve damage as a result of the surgery.6
3

The court recognizes that medical evidence dating after claimant’s date last insured could
be relevant to claimant’s disability status, but only if it reflected on claimant’s ability to perform
work prior to the date last insured. An injury that did not occur until after the date last insured could
not possibly reflect on claimant’s ability to do work prior to the date last insured.
4

Tr. 172-76.

5

Tr. 193.

6

See Tr. 191-200, 225-26.
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There is no other evidence of a disabling impairment that existed prior to
claimant’s date last insured. To the extent claimant did experience some hearing loss
and balance disturbance, those impairments were accommodated by the ALJ’s
restriction of no climbing ladders, ropes, or scaffolds; no working in a hazardous
environment around unprotected heights or hazardous machinery; and no work
requiring balancing or using a telephone or similar equipment.7 The court is not
persuaded by claimant’s argument that the ALJ’s finding of an ability to do light work
is inconsistent with the medical evidence indicating balance problems. Light work
does require the ability to stand and walk, but there is no evidence that claimant’s
balance problems were so severe that he could not stand or walk.
Further, contrary to claimant’s argument, the ALJ was not required to order a
consultative examination in order to determine claimant’s residual functional
capacity. It is the ALJ’s responsibility to determine a claimant’s residual functional
capacity. See 20 C.F.R. § 404.1546(c) (“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.”). See also Robinson v. Astrue, 365 F. App’x 993, 999 (11th Cir. 2010)
(“We note that the task of determining a claimant’s residual functional capacity and
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Tr. 20.
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ability to work is within the province of the ALJ, not of doctors.”). The ALJ was not
required to obtain a residual functional capacity evaluation from any treating or nontreating source. It is true that the ALJ
has an obligation to develop a full and fair record, even if the claimant
is represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981). The ALJ is not required to seek additional
independent expert medical testimony before making a disability
determination if the record is sufficient and additional expert testimony
is not necessary for an informed decision. Wilson v. Apfel, 179 F.3d
1276, 1278 (11th Cir. 1999) (holding the record, which included the
opinion of several physicians, was sufficient for the ALJ to arrive at a
decision); Holladay v. Bowen, 848 F.2d 1206, 1209-10 (11th Cir. 1988)
(holding the ALJ must order a consultative exam when it is necessary
for an informed decision).
Nation v. Barnhart, 153 F. App’x. 597, 598 (11th Cir. 2005) (emphasis supplied).
Furthermore, claimant bears the ultimate burden of producing evidence to support her
disability claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(citing 20 C.F.R. §§ 416.912(a), (c)). The court concludes that the record in this case
was sufficient to give substantial support to the ALJ’s decision, even in the absence
of a residual functional capacity finding by a treating or examining physician, and the
ALJ was not required to order an additional consultative examination.
The ALJ also properly afforded “great weight” to the report of Dr. Callins, the
state agency physician. Social Security regulations also provide that, in considering
what weight to give any medical opinion (regardless of whether it is from a treating

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or non-treating physician), the Commissioner should evaluate: the extent of the
examining or treating relationship between the doctor and patient; whether the
doctor’s opinion can be supported by medical signs and laboratory findings; whether
the opinion is consistent with the record as a whole; the doctor’s specialization; and
other factors. See 20 C.F.R. § 404.1527(d). See also Wheeler v. Heckler, 784 F.2d
1073, 1075 (11th Cir. 1986) (“The weight afforded a physician’s conclusory
statements depends upon the extent to which they are supported by clinical or
laboratory findings and are consistent with other evidence as to claimant’s
impairments.”). Dr. Callins’ opinion was consistent with the rest of the medical
evidence of record, including records from Dr. Goldfarb, claimant’s treating
physician.
Finally, the ALJ properly considered claimant’s daily activities and
noncompliance with prescribed treatment. Both are permissible factors for the ALJ
to consider in evaluating claimant’s credibility and the extent of impairment resulting
from claimant’s subjective symptoms. See 20 C.F.R. § 404.1529(c). Furthermore,
neither factor formed the entire basis for the ALJ’s decision, and the decision reached
by the ALJ was supported by substantial medical evidence of record.
Based on the foregoing, the court concludes the ALJ’s decision was based upon
substantial evidence and in accordance with applicable legal standards. Accordingly,

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the decision of the Commissioner is AFFIRMED. Costs are taxed against claimant.
The Clerk is directed to close this file.
DONE this 27th day of April, 2012.

______________________________
United States District Judge

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