Thompson v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 3/27/2014. (AVC)
2014 Mar-27 PM 02:00
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BARRY L. THOMPSON,
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
CIVIL ACTION NO.
On April 9, 2007, claimant Barry L. Thompson applied for a period of disability and
disability insurance benefits under Title II of the Social Security Act, (R. 66, 92–99), and
supplemental security income under Title XVI of the Social Security Act, (R. 67, 100–04). The
claimant alleges disability commencing on December 17, 2003 because of symptoms related to
iliopsoas tendon and chronic hip and back pain.1 (R. 92, 112, 68–69). The Commissioner denied
both claims. (R. 66–69). The claimant subsequently filed a timely request for a hearing before an
Administrative Law Judge on August 28, 2007. (R. 70). The ALJ held the hearing on February 4,
2010. (R. 89, 90, 39–64). In a decision dated March 10, 2010, the ALJ found that the claimant
was not disabled as defined by the Social Security Act and was thus ineligible for disability
benefits and supplemental security income. (R. 22–33, 1). On October 5, 2010, the Appeals
The claimant also asserts impairments of hypertension, obesity, and personality disorder,
although the claimant did not raise these in his initial application. (R. 68–69).
Council denied the claimant’s request for review. (R. 1–4). Consequently, the ALJ’s decision
became the final decision of the Commissioner of the Social Security Administration.
The claimant has exhausted his administrative remedies, and this court has jurisdiction
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this court will
AFFIRM the decision of the Commissioner.
II. ISSUES PRESENTED
The claimant presents the following issues for review: (1) whether substantial evidence
supports the ALJ’s Residual Functional Capacity determination, and (2) whether the ALJ failed
to properly consider the claimant’s severe impairments of record.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if the factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham
v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. Similarly, the court will affirm only those factual determinations that are supported
by substantial evidence. Id. at 1000. “Substantial evidence” is “more than a mere scintilla” of
evidence, Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). An opinion is supported by substantial
evidence if it demonstrates “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Moore, 405 F.3d at 1211; see also Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938).
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look
only to those parts of the record that support the decision of the ALJ, but also must view the
record in its entirety and take account of evidence that detracts from the evidence relied on by the
ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARDS
Under federal law, a person is entitled to disability benefits when the person cannot
“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).
To make this determination, the Commissioner employs a five-step, sequential evaluation
(1) Is the person presently employed?
(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, supbt. P, app. I?
(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); 20 C.F.R. §§ 404.1520, 416.920.
A Residual Functional Capacity assessment involves determining the claimant's ability to
do work in spite of his impairments in consideration of all relevant evidence. Lewis v. Callahan,
125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The ALJ
makes this determination by considering the claimant's ability to lift weight, sit, stand, push, pull,
etc. 20 C.F.R. §§ 404.1545(b), 416.945(b). The law defines light work as "lifting no more than
20 pounds with frequent lifting or carrying of objects weighing up to 10 pounds”; “a good deal of
walking or standing”; or “sitting most of the time with some pushing and pulling of arm or leg
controls.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “To be considered capable of performing a full
or wide range of light work, you must have the ability to do substantially all of these activities.”
A. THE NECESSITY OF MEDIAL EVIDENCE IN MAKING A RESIDUAL
FUNCTIONAL CAPACITY DETERMINATION
Because the hearing before an ALJ is not an adversarial proceeding, the ALJ has a basic
obligation to develop a full and fair record before determining a claimant’s Residual Functional
Capacity. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Developing a full and fair
record, however, does not require an ALJ to secure a medical source opinion regarding the
claimant’s RFC. See 20 C.F.R. §§ 404.1546(c), 416.946(c); see also Langley v. Astrue, 777 F.
Supp. 2d 1250, 1261 (N.D. Ala. 2011) (“The failure to include [an RFC assessment from a
medical source] at the State agency level does not render the ALJ’s RFC assessment invalid.”);
Green v. Soc. Sec. Admin, 223 F. App’x 915, 923–24 (11th Cir. 2007). Because the overall RFC
determination is “based on all the relevant evidence in [the claimant’s] case record,” 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1) (emphasis added), the ALJ can fulfill his responsibility to
develop the record even without a medical source opinion. Thus, as long as the ALJ’s
determination is based on substantial evidence, the absence of an RFC assessment by a medical
source will not render the ALJ’s RFC determination invalid. Green v. Soc. Sec. Admin., 223 F.
App’x 915, 924 (11th Cir. 2007).
While the failure of an ALJ to rely upon an RFC assessment from a medical source is not
enough to invalidate the ALJ’s overall RFC determination, the ALJ’s duty to fully develop the
record may require the ALJ to order a consultative examination if “necessary to make an
informed decision.” Smith v. Commissioner, 501 F. App’x. 875, 878 (11th Cir. 2012). Federal
regulations provide that such an evaluation is appropriate “to resolve an inconsistency in the
evidence or when the evidence as a whole is insufficient to allow [the ALJ] to make a
determination.” 20 C.F.R. §§ 404.1519a(b), 416.919a(b). Ultimately, however, the general rule
remains: if substantial evidence supports the ALJ’s decision, the ALJ does not err in denying a
request for a consultative examination. Holladay v. Bowen, 848 F.2d 1206, 1209–10 (11th Cir.
1988); see also Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984).
B. DETERMINING THE SEVERITY OF A LIMITATION
“In sequential evaluation step two, the [Commissioner] determines whether a claimant
has a ‘severe’ impairment or combination of impairments that causes more than a minimal
limitation on a claimant’s ability to function.” Davis v. Shalala, 985 F.2d 528, 532 (11th Cir.
1993). The regulations provide that “[a]n impairment or combination of impairments is not
severe if it does not significantly limit [the claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1521(a), 416.921(a); see also Crayton v. Callahan, 120 F.3d 1217,
1219 (11th Cir. 1997).
Where a claimant alleges multiple impairments, the Commissioner must consider the
combined effects of all impairments in determining disability, not merely the individual effects of
the several impairments. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990); Walker v.
Bowen, 826 F.2d 996, 1001 (11th Cir. 1987); 20 C.F.R. §§ 404.1522–1523, 416.922–923. Even
where an individual impairment would not render the claimant disabled, the combination of the
claimant’s impairments may establish disability. Caulder v. Bowen, 791 F.2d 872, 880 (11th Cir.
1986). Statements from an ALJ that the claimant “did not have an impairment or combination of
impairments” that met the listings constitute evidence that he considered the combination of a
claimant’s impairments. Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002); see also
Jones v. Dep’t of Health & Human Services, 941 F.2d 1529, 1533 (11th Cir. 1991); Wheeler v.
Heckler, 784 F.2d 1073, 1076 (11th Cir. 1986).
The claimant has a high school education and was forty-three years old at the time of the
administrative hearing. (R. 132, 92, 100). His past work experience includes employment as a
laborer, loader, cook, dishwasher, stocker, mental health worker, and material handler. (R. 139).
The claimant originally alleged that he was unable to work because of snapping iliopsoas tendon
syndrome, chronic hip pain, and lower back problems. (R. 68–69). On appeal, however, the
claimant argued that, in addition to the impairments listed previously, he was disabled because of
his obesity, hypertension, and a mental impairment. (R. 27–32). The claimant argues that the ALJ
did not properly base his decision on adequate medical sources and that the ALJ inappropriately
determined the severity of the claimant’s limitations. The claim alleges that he has not worked
since the onset of his disability on December 17, 2003. (R. 111–12).
A. PHYSICAL LIMITATIONS
(i) Medical Records Prior to Disability
On June 8, 2000, Dr. Solorio examined the claimant for complaints of back pain. The
claimant reported that his back pain began in 1984 while playing basketball, and that lifting at
work had aggravated his symptoms. He reported a history of emergency room visits for pain
medication. Dr. Solorio noted that the examination revealed a “mildly obese male in no acute
distress” who could “ambulate without difficulty,” and had “[m]otor strength [of] grade 5/5.”
While Dr. Solorio did observe a distinct popping noise emanating from the claimant’s lower
back, the claimant’s lumbar X-rays were “unremarkable.” His overall impression was that the
claimant had spinal instability. Dr. Solorio ordered additional X-rays of the lumbar spine and the
hip as a result. (R. 174, 180).
On July 13, 2000, the claimant returned to Dr. Solorio for a follow-up visit, complaining
of persistent back pain. The claimant reported that he was unable to continue performing the
previous work he had done at CareLine. The claimant also revealed that he was unable to walk
for two weeks after his basketball injury in 1984. The X-rays Dr. Solorio ordered of the pelvis,
hip, and spine “reveal[ed] no evidence of instability.” Dr. Solorio’s overall impression was that
the claimant had iliopsoas tendon snapping syndrome. (R. 174–75, 180–81).
After calling in periodically for Lorcet Plus refills, the claimant returned again to Dr.
Solorio on August 30, 2000 for an examination. The claimant reported that his current work
capacity involved “no lifting over 5 lbs, no bending, no reaching overhead, sitting 30 minutes and
no more than 15 minutes of standing rotating on 8 hour shift.” Dr. Solorio noted that the back
and left hip pain is “most likely going to be related to a snapping iliopsoas tendon,” which was
evident in the popping noise Dr. Solorio observed. Dr. Solorio ordered an MRI of the claimant’s
iliopsoas tendon to look for evidence of inflammation before making a diagnosis. (R. 175, 181).
Before returning to Dr. Solorio for a follow-up, the claimant went to Dr. Steven M.
Theiss for an examination on November 13, 2000. Dr. Theiss noted that the claimant was a
“healthy appearing gentleman with a normal gait who c[ould] heel and toe walk without
difficulty.” Dr. Theiss also reviewed an MRI of the claimant’s hip and noted that it was
“unremarkable,” although lumbar films revealed some sclerosis in the claimants’ sacroiliac
joints. Ultimately, Dr. Theiss’s impression was that the claimant suffered from both back pain
and snapping left hip syndrome, although the two were unrelated. Dr. Theiss also stated that the
claimant could consider an iliopsoas tendon release, although it would only remedy the snapping
hip and not the pain the claimant reported. As far as the back pain was concerned, Dr. Theiss
showed some concern about the findings in the lumbar films and stated that he “would
recommend a rheumatology evaluation to evaluate [the claimant] for a seronegative spinal
arthropathy.” (R. 171–72).
After calling in again for more Lorcet Plus refills, the claimant returned to Dr. Solorio on
January 8, 2001 for a follow- up examination. The claimant discussed Dr. Theiss’s
recommendations and the possibility that the claimant might have seronegative spinal
arthropathy and a snapping hip syndrome. Dr. Solorio recommended avoiding the proposed
iliopsoas release for now because he “believe[d] [the claimant’s] biggest problem [wa]s really his
back pain.” He agreed with the referral for a rheumatology and provided the claimant with a refill
of his prescription medication. Dr. Solorio also noted that he felt the claimant needed retraining
“for work that does not involve heavy lifting, no lifting from the floor, and [which would] allow
him to change positions.”(R. 176–77, 182–83).
On June 27, 2002, the claimant again returned to Dr. Solorio for an examination. The
claimant reported that his back and hip pain was “generally getting worse” and revealed his
intention to apply for social security disability benefits. The claimant added that although he had
previously taken Lorcet Plus for pain, he stopped after he started to get addicted, choosing
instead to simply “learn to deal with the pain.” The claimant indicated he was trying to lose
some weight. Dr. Solorio noted that plaintiff did not have shortness of breath or any mental
instability, and that the claimant was “able to arise from the examining table without difficulty.”
Dr. Solorio recommended not doing the surgery at this point, but admitted that he did not have
much experience with this type of procedure and suggested that the claimant return to UAB
Orthopedic Clinic for further investigation. (R. 177, 183).
(ii) Medical Records After Alleged Onset of Disability: Incarceration
Medical records from the Federal Bureau of Prisons indicate that from 2004 to 2006, the
claimant was incarcerated.2 In a record dated February 19, 2004, a registered nurse reported that
the claimant had “moderate back pain” and was taking Naproxen. (R. 240, 242). In a record dated
May 27, 2004, a mid-level practitioner marked the claimant’s current pain level as a two on a
scale of one to ten, indicating mild pain. (R. 238). The report also indicates that the claimant lost
30 pounds while in prison. In a record dated January 19, 2005, the claimant rated his pain at a six
out of ten and exhibited limited flexion, extension, and lateral movements. K. Bennett, an
The exact dates of the claimant’s incarceration are unclear from the record. The ALJ
states that the claimant was incarcerated from February 2004 to July of 2006, which is also
supported by the medical records for the time period. (R. 32). However, the claimant reported
applying for social security disability benefits a day after his release in April of 2007. (R. 250,
Advanced Registered Nurse Practitioner (ARNP), noted that the claimant had spasms during the
movements and exhibited a mild limp when walking. (R. 231).
In a record dated on June 28, 2005, the claimant reported to the medical unit for “severe
back pain.” When asked if he was in pain, claimant answered “Yes, bad.” When asked to rate the
pain, the claimant put a ten out of ten, and when asked how long he had had this problem, the
claimant marked “years.” The claimant’s weight at the time was 190 pounds. (R. 236).
In a record dated July 15, 2005, Dr. J. Hudgins measured claimant’s weight at 200 pounds
and marked the claimant’s pain to be at a 6 out of 10 on the pain scale. The claimant reported
that the pain was worse in the morning, and that during the day, the pain would radiate down his
leg. Dr. Hudgins noted that the claimant’s lumbar and hip regions were locally tender, and
prescribed Naproxen and back strengthening exercises. (R. 234).
On August 1, 2005, K. Bennet, an ARNP, examined the claimant. She noted that the
claimant has experienced persistent lumbar and hip pain, “ongoing for several years, #7/10
scale.” Despite indicating a high level of pain, the claimant also reported “[r]unning on rec yard
for 30 minutes at a time” and “play[ing] basketball on [S]at[urday].” The claimant’s weight at the
time was 200 pounds. When instructing the claimant to take his medication with food, the ARNP
noted that he exhibited “no barriers to learning.” (R. 233).
On August 29, 2005, Dr. Lowry examined the claimant and noted that he weighed 205
pounds and reported pain at a seven out of ten. Dr. Lowry also observed that the claimant grunted
when he sat down and limped as he walked. Upon examining him, he also noted tenderness in
the lumbar and hip region. (R. 232).
On April 14, 2006, K. Bennett Baker, ARNP, again examined the claimant. The ANRP
noted that the claimant weighed 189 pounds, describing his build as medium. (R. 226). She noted
the claimant was not currently on any medication and had a history of chronic back and hip pain.
She prescribed the plaintiff some hydrochlorothiazide, a pill that prevents the body from
absorbing too much salt and is used to treat high blood pressure. (R. 227). She instructed the
claimant to lower his fat and cholesterol intake. She diagnosed the claimant with chronic lower
back pain and hypertension. (R. 222, 228). The ARNP also noted, however, that the claimant has
“lost a substantial amount of weight since arrival,” and that he “[e]xercise[d] 30 minutes daily.”
(R. 223). Concerning the claimant’s mental health, the ARNP noted that he admitted feeling sad
and depressed at times, especially when his girlfriend stop contacting him. Overall, the ARNP
determined the claimant was still qualified for regular duty and regular housing. (R. 218–23,
On July 7, 2006, Ms. Bennett-Baker, an ARNP, examined the claimant and reported that
the claimant was 181 pounds, 5 feet seven inches tall, with hypertension, and pain at a five on a
scale of one to ten. The ARNP reported that the claimant has chronic lower back pain that
became “worse when sitting [and] bending.” Claimant reported feeling stiff after sitting for long
periods of time, and reported not taking over-the-counter medications because they do not help.
(ii) Medical Records After Alleged Onset of Disability: Post-Incarceration
After his release, the claimant went for an examination at the Community Free Clinic on
May 24, 2007. The examining physician3 reported the claimant weighed 198 pounds and had
The signatures were illegible, but the form indicates it was signed by a physician.
back and hip pain. The physician prescribed him medication for pain. (R. 246–48).
On June 28, 2007, the claimant again went to the Community Free Clinic. He still
weighed 198 pounds and requested a refill of his medication and a review of his X-rays. The
physician noted the pain continued but was relieved with medication and that the X-ray showed
“no acute injury.” The physician indicated that no return visit would be necessary. (R. 247).
On June 19–20, 2007, the claimant had a vocational evaluation at the Tennessee Valley
Rehabilitation Center. In the vocational evaluator’s summary, claimant “reported that he would
prefer receiving a disability check than to re-train for a new career due to the constant pain that
he endures,” but that even “if he [wa]s approved for disability he [wa]s interested in part-time
employment that would be suitable for his physical condition.” Similarly, “if he [wa]s denied for
social security benefits, [the claimant stated] he would be interested in re-training to enter a new
career.” The claimant voiced interest in “working with people in a mental health setting, working
with animals or working in a light production assembly setting.” Although the claimant asserted
that he was under a restriction of “not sitting or standing for more than 30 minutes and not lifting
more than five pounds of weight,” the vocational evaluator targeted various jobs that the claimant
might be both interested in and capable of performing. (R. 255–277).
The claimant had a consultative examination on July 20, 2007 performed by Dr. Bharat
K. Vakharia. Dr. Vakharia described the claimant as a young man, weighing 219 pounds,
measuring 67 inches tall, and who was generally in “mild distress.” Dr. Vakharia observed that
the claimant had “tenderness [in the] lumbrosacral spine, [and] also tenderness on the left hip at
iliac crest area.” In addition, Dr. Vakharia reported “movement of left leg [was] severely
painful.” Although the claimant could walk, he reportedly “had difficulty walking on the heel.”
Dr. Vakharia also noticed that movement of the knee was limited “because of the left hip and
back pain.” He reported that the claimant was on 10 milligrams of Flexeril, 500 milligrams of
Naproxen, and 50 milligrams of Ultram. Ultimately, Dr. Vakharia determined the claimant has
lower back pain and hip pain. In examining the claimant’s range of motion, Dr. Vakharia
determined the claimant’s range of motion in his dorsolumbar spine, hips, and knees was
significantly reduced because of lower back pain, with the claimant’s left side experiencing the
greatest limitations. (R. 199–202).
(iv) Residual Functional Capacity Determination
On July 32, 2007, Cassandra Brown, a disability benefits employee, completed the
claimant’s Residual Functional Capacity assessment after having “consulted with Dr.
Shugerman.” (R. 210). Ms. Brown found that the claimant could occasionally lift 20 pounds (less
than one-third of the entire work day); frequently lift up to 10 pounds (less than two-thirds of the
entire work day); stand, walk, or sit each for about 6 hours in an 8 hour workday; and push or
pull without limitation “other than as shown for lift and/or carry.” (R. 204). Ms. Brown based
this determination on the claimant’s consultative examination with Dr. Vakharia, which
demonstrated that the claimant could breathe, walk, and move with some range of motion. ( R.
205). In addition, Ms. Brown looked to the claimant’s 2000 X-ray, which was described as
“unremarkable” and which evidenced no instability. (R. 205, 174–75, 180–81).
In determining the claimant’s postural limitations, she concluded that the claimant could
climb ramps and stairs frequently (less than two-thirds of the time); never climb ladders, ropes,
or scaffolds; and balance, stoop, kneel, crouch, and crawl occasionally (less than one third of the
time). (R. 205). Additionally, the examiner noted no manipulative limitations, which included
reaching in all directions; no visual limitations; and no communicative limitations. (R. 206–07).
Similarly, the only environmental limitations noted in the RFC assessment were to avoid
concentrated exposure to extreme cold and extreme heat and to avoid all exposure to hazards. (R.
In completing her assessment, Ms. Brown found the “claimant’s statement about his
symptoms and functions limitation [only] partially credible as the alleged severity [wa]s not
totally consistent with the objective findings from the evidence in the file.” Id. at 208.
(v) Miscellaneous Medical Records
On May 21, 2009, the claimant went to Dr. Putnam, who treated the claimant for left side
testicular pain and chronic back pain. Dr. Putnam noted the claimant’s weight was 256 pounds
and that he had gained a good deal of weight since prison. Dr. Putnam described the claimant’s
problem as being overweight with chronic back and hip pain, leg cramps on both legs, and pain
in the testes. Dr. Putnam also noted the claimant had high blood pressure in the past. Ultimately,
Dr. Putnam gave the claimant prescriptions for Tramadol and Flexeril. (R. 336–41).
From August 15, 2009 through October 22, 2009, the claimant’s records indicate that the
claimant made approximately eight emergency room visits for treatment of an abscess (likely due
to a bug bite) on the claimant’s abdomen, (R. 303–13, 297, 301–07, 298–99, 314–18, 321–25),
and injuries related to a gunshot wound in the claimant’s left leg, (R. 286–91, 328–29, 282–83,
326–27). The physicians drained the abscess, gave the claimant pain medication, and did not
indicate that further treatment of the abscess would be necessary. (R. 297, 301–07, 321–25).
Similarly, although the claimant experienced residual tenderness from his gunshot wound, likely
due to the bullet fragment purposefully left in his leg, the physicians merely gave the claimant
pain medication and noted that the wound was healing well. (R. 282–84).
On December 17, 2008, Dr. Putnam again examined the claimant, noting that the
claimant had lower torso pain and had gained a significant amount of weight. Dr. Putnam gave
the claimant prescriptions for Nuvigil, Tramadol, Cyclobenezine. (R. 332–35).
B. MENTAL LIMITATIONS
On April 13, 2007, Dr. Jon G. Rogers, Ph.D., gave the claimant a mental health
evaluation. (R. 249–254). He noted that the claimant experienced irritability, difficulty falling
asleep, fear of losing control and going crazy, unstable interpersonal relationship, impulsivity,
and anger management issues. (R. 249). During this examination, the claimant reported getting
up at 7:00 a.m. and going to bed at 11:30 p.m. His days were reportedly filled with
housecleaning, washing the clothes, cooking the meals, washing the dishes and cleaning the
house. His reported hobbies included playing sports and walking. (R. 250).
Dr. Rogers observed that the claimant’s attitude was cooperative, his “[s]tream of talk
was normal,” and his judgment and insight were “fair to poor.” Dr. Rogers reported that the
claimant’s IQ was 94, placing him in the “average range intellectually.” Other test scores
revealed the claimant suffered in math and spelling “to the extent that it indicate[d] significant
learning disabilities.” In assessing the claimant’s work-related mental health, Dr. Rogers
concluded that the claimant could exchange money, although his “[s]ocial response will be below
average.” More importantly, Dr. Rogers concluded that the claimant was “capable of being
cooperative with peers and supervision and maintaining a routine work cycle.” Overall, the
claimant’s “[m]otivation seemed [g]ood,” even though his “[r]esponse to frustration w[ould] be
poor,” and his “[c]ommunication skills, physical, and mental stamina [we]re below average.” (R.
Dr. Rogers’ diagnostic impression was that the claimant suffered from a learning disorder
in spelling, a mathematics disorder, cocaine dependence, cannabis abuse, and alcohol
dependence. He also concluded that the claimant suffered from a personality disorder with antisocial features. Regarding the claimant’s physical problems that may affect mental health, Dr.
Rogers noted that the claimant suffered from headaches, high blood pressure, and daily pain rated
at a level of eight out of ten. Dr. Rogers concluded that all of these impairments in combination
with the claimant’s psychosocial stressors stemming from difficult relationships, his lengthy
incarceration, and his readjustment to society made a Global Assessment of Functioning score of
53 appropriate for the claimant, indicating moderate symptoms. (R. 251–52).
C. THE ALJ HEARING
After the Commissioner denied the claimant’s request for disability insurance benefits
and supplemental security income, the claimant requested a hearing before an ALJ. (R. 70). The
ALJ originally scheduled a hearing for March 26, 2009, but ultimately postponed the hearing
until February 4, 2010, pending the resolution of a prior application the claimant had made for
benefits. (R. 77–81, 34–38, 89–90, 39–64). The claimant, a vocational expert, and the claimant’s
spouse each testified at the hearing.
When asked what his worst physical problem was, the claimant answered “[m]aintaining
a normal lifestyle without pain each and every day.” (R. 48–49). Although the claimant stated
that he tried to go walking everyday, he testified that he could not walk for a long period of time
and definitely could not walk a mile. (R. 46, 51). He testified that he longest period of time he
could sit before getting up because of pain was“[r]ight at about 30 minutes,” and the longest time
he could stand before having to sit down was 15–20 minutes. (R. 50–51).
When asked what he did during the day, the claimant stated he would get up around 11:00
a.m. or 11:30 a.m. and mostly “sit around the house and watch TV, sit down, up and down, walk
back and forth for a minute, sit down, up and down, [and walk] over to [his] mother’s house.” (R.
44, 52–53). The claimant reported visiting his mother—who lives next door to him—every day
to check on her. (R. 45). When asked his hobbies, the claimant stated that he could no longer
enjoy any of his previous hobbies, including playing basketball. (R. 46–47). The most he
reported doing was trying to accompany his wife during her errands, though he admitted that he
would usually end up going back to the car or sitting down in the store while she finished. (R.
The claimant testified that at the time of the hearing, he weighed approximately 327
pounds, but that he was trying to lose weight. (R. 44–45). When asked if he could bend down and
pick up something off the floor, the claimant said that he could not do it without actually getting
on his knees, and that his wife has to help him put on his socks and underwear, use the bathroom,
and enter and exit the bath tub. (R. 51). The claimant also testified that he had begun having
muscle spasms in the leg in which he was shot. (R. 51). He testified that he was taking aspirin,
Tramadol, Nuvigil, and a muscle relaxer to relieve his pain and help him sleep. (R. 44). As a side
effect of these drugs, however, the claimant reported experiencing sleep apnea. (R. 51–52).
The claimant also testified that the last time he worked was in 2001, when he was on his
feet all day assisting with “medical supply, boxing, bending, [and doing] a lot of grabbing of
material.” (R. 46). He admitted he was in vocational rehabilitation and was “trying to go back to
school,” a fact of which the attorney was not aware at the time of the hearing. (R. 50).
The vocational expert testified that he had examined the claimant’s record and that the
claimant would not be capable of doing his past relevant work if his pain was at a seven or
above, but that he might be able to do his past relevant work if his pain was at a six or below. (R.
54–55). When asked if the claimant could perform his past relevant work if the ALJ considered
the claimant’s testimony at the hearing credible, the vocational expert answered, “No.” (R. 55).
When asked if the claimant could perform any work in the area or in the nation as a whole if the
claimant’s testimony were credible, the vocational expert answered, “Not based on his
testimony.” (R. 55).
At the claimant’s insistence, his wife, Maria Thompson, also testified. (R. 56–63). She
stated that the claimant has complained of pain ever since they met, thirteen years earlier. (R. 58).
When asked what time the claimant awakes, she testified that it varied from day to day because
the medication the claimant takes affects his ability to sleep. (R. 59). She testified that the
claimant would wake up frequently in the middle of the night because he could not breathe or
because he was in pain. This started happening before the claimant was shot in the leg, but had
become more frequent since then. (R. 62). When asked what the claimant did to help around the
house, Ms. Thompson testified that the claimant did not help her with household chores and that
she usually went grocery shopping alone. (R. 60–61).
D. THE ALJ’S DECISION
In a decision dated March 10, 2010, the ALJ found that the claimant was not disabled as
defined by the Social Security Act and was thus ineligible for disability benefits and
supplemental security income. (R. 22–33, 1). First, the ALJ determined the claimant had not
engaged in substantial gainful activity since December 17, 2003, the alleged onset date for the
claimant’s disability. (R. 27). Second, the ALJ determined that the claimant’s iliopsoas tendon
snapping syndrome, hypertension, and obesity were all severe impairments “result[ing] in more
than a minimal limitation on [the claimant’s] ability to engage in work related activities.” (R. 27).
Third, the ALJ determined that the claimant did not have an impairment or combination of
impairments that met the Listing of Impairments, and that even when considering both the
claimant’s severe and non-severe impairments, the claimant still had the Residual Functional
Capacity to perform the full range of light work. (R. 27–28).
In making the claimant’s RFC determination, the ALJ closely examined the claimant’s
medical history and determined that while the claimant’s impairments could have caused the
alleged symptoms, “the claimant’s statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are inconsistent with the above
residual functional capacity assessment.” The ALJ pointed to the fact that the claimant’s X-ray
and MRI in 2000 with Dr. Solorio were clear. Additionally, Dr. Solorio did not recommend
surgery and stopped treating the claimant after 2002. (R. 29).
The ALJ also pointed out that the next time the claimant sought treatment was while he
was incarcerated in 2004, leaving nearly a two-year gap in treatment. In addition, even the
various medical records from the prisons painted a mixed picture of the claimant’s disability.
Although the claimant regularly complained of pain, for example, he was cleared for regular duty
work and reported a pain level of only five out of ten near the time of his release. The
consultative examination ordered in July of 2007 pursuant to the claimant’s disability benefits
application similarly made no recommended limitations for the claimant. Community Free Clinic
records in April and June of 2007 further established that, while the claimant was offered
prescription medication for his pain, the lumbar X-rays were negative with no acute findings. (R.
The ALJ noted that the claimant did not seek treatment again until May of 2009, nearly
another two-year gap. (R. 30). Even though the ALJ acknowledged the claimant’s steady weight
gain during this time,4 the ALJ noted that Dr. Putnam’s 2009 impression merely reiterated what
nearly every other examining physician had determined: the claimant is obese and has chronic
low back pain, relieved through prescription medication. (R. 30).
The ALJ also dismissed the claimant’s emergency room records in 2009, in which
claimant was treated for an abscess in his abdominal area due to a possible insect bite and the
gunshot wound to his lower left leg, because the records indicate that the injuries did not impose
“any more than a minimal effect upon [the claimant’s] ability to engage in work.” (R. 30). The
records suggest the gunshot wound was healing well, and the abscess was eventually resolved.
As to the claimant’s mental health, the ALJ summarized Dr. Rogers’ findings—which
included an assessment that the claimant has a mathematics disorder; a learning disorder; a
In June of 2007, claimant weighed 198 pound. (R. 247). In May of 2009, the claimant
weighed 256 pounds. (R. 339). In December of 2009, the claimant weighed 305 pounds. (R.
335). At the time of the hearing in February of 2010, the claimant testified that he weighed 327
personality disorder; a history of cocaine, cannabis, and alcohol abuse (in remission); and a GAF
score of 53—and determined that they were not entitled to substantial weight. (R. 31). As
grounds for determining that the claimant did not have a severe mental impairment for the
purpose of social security disability benefits, the ALJ pointed out that the record shows “no prior
treatment whatsoever for any mental impairments.” (R. 31). In addition, the ALJ observed, “[t]he
claimant did not allege having any mental impairments when he filed his applications nor did he
allege having any mental impairments at the hearing.” (R. 31).
The ALJ also determined that Dr. Rogers’ report itself suggests the claimant’s daily
activities were not severely limited. The claimant reportedly did a variety of household chores
regularly (much more than what he indicated at the hearing) and Dr. Rogers deemed the claimant
“capable of being cooperative with peers and supervisors and maintaining a regular work
schedule.” (R. 31). Thus, the ALJ concluded that the claimant’s personality disorder, learning
disorder, and history of substance abuse—even when considered in combination with his other
severe impairments—“resulted in a no more than mild restriction of daily living activities, no
more than mild difficulty with maintaining social functioning, and no more than mild difficulty
with maintaining concentration, persistence and pace.” In consideration of all the claimant’s
impairments, the ALJ, therefore, determined that a Residual Functional Capacity at the full range
of light work was appropriate. (R. 31).
Although in the fourth step of the analysis the ALJ determined the claimant was unable to
perform any of his past relevant work, the ALJ ultimately concluded in the fifth step of the
analysis that jobs exist in significant numbers in the national economy that the claimant can
perform given the claimant’s Residual Functional Capacity, age, education, and work experience.
A. THE ALJ’S RESIDUAL FUNCTIONAL CAPACITY WAS BASED ON
The plaintiff objects to the ALJ’s ultimate RFC determination that he is capable of
performing the full range of light work on the grounds that the ALJ’s findings are not based on
substantial evidence because (1) the ALJ relied upon an RFC assessment conducted by a nonmedical professional, and (2) the ALJ failed to order a current consultative examination before
rendering his decision. (Doc. 5 at 7).
(i) Residual Functional Capacity Assessments Conducted by Non-Medical
A Residual Functional Capacity is an “individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and continuing basis . . .
[which] means 8 hours a day for 5 days a week, or an equivalent work schedule.” SSR 96-8p,
1996 WL 374184 (July 2, 1996). The law defines light work as "lifting no more than 20 pounds
with frequent lifting or carrying of objects weighing up to 10 pounds”; “a good deal of walking
or standing”; or “sitting most of the time with some pushing and pulling of arm or leg controls.”
20 C.F.R. §§ 404.1567(b), 416.967(b).
As stated previously, the ALJ’s duty to develop a full and fair record does not require the
ALJ to secure a medical source opinion regarding the claimant’s RFC. See 20 C.F.R. §§
404.1546(c), 416.946(c); see also Green v. Soc. Sec. Admin, 223 F. App’x 915, 923–24 (11th
Cir. 2007) (holding that the ALJ’s RFC determination that the claimant could perform light work
was supported by substantial evidence even though the only evidence in the record consisted of
office visit records indicating that the claimant was managing her respiration problems well, had
controlled her hypertension, and that her pain could be treated with over-the-counter medicine).
Instead, “the task of determining a claimant's Residual Functional Capacity and ability to work is
within the province of the ALJ, not of doctors.” Robinson v. Astrue, 365 F. App'x 993, 999 (11th
Cir. 2010). Because the ALJ makes his RFC determination based on all the evidence in the
record, the ALJ can fulfill his responsibility to develop the record without a medical source
opinion as to the claimant’s RFC. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The standard
remains whether the ALJ’s RFC determination is supported by substantial evidence. Green, 223
F. App’x at 924.
Here, substantial evidence of the claimant’s ability to perform light work exists in the
record, even in the absence of a medical source opinion. The claimant applied for social security
benefits on April 9, 2007, alleging his disability began on December 17, 2003. (R. 66, 67, 92,
112, 68–69). Despite the claimant’s consistent complaints of back and hip pain from 2000 to the
date of the hearing in 2010, he was cleared for regular duty and regular housing when
incarcerated from 2004–2006.5 (R. 219). The claimant’s ability to perform light work is also
evident from his August 2005 statement to medical personnel that he exercised thirty minutes
daily and played basketball while in prison. (R. 233). The claimant also reportedly worked in the
prison laundry throughout his incarceration and as a laborer for a year while on Work Release.
(R. 250). Once released, the claimant told Dr. Rogers on April 13, 2007 that his daily activities
The exact dates of the claimant’s incarceration are unclear from the record. See supra
included washing clothes, cooking, washing the dishes, and cleaning the house, and his hobbies
included attending church activities, playing sports, and walking. (R. 250).
In addition to demonstrating the physical capacity to work in a light range position, the
claimant’s medical treatment history does not suggest he requires limitations inconsistent with
light range work. For example, the claimant has significant gaps in treatment. From December of
2003 to February of 2004, (R. 177, 183, 240, 242) and again from July 2007 to May 21, 2009,
(R. 188–202, 336-41), the record shows the claimant did not seek any medical treatment for his
allegedly disabling conditions. In addition, X-ray and MRI scans of the claimant’s back and hips
consistently showed no acute damage. (R. 174, 180, 175, 181, 171, 247). Finally, despite the
sporadic frequency with which the claimant sought medical treatment for his pain, his doctors
never recommended surgery and instead simply continually determined the best approach would
be to prescribe medication to help relieve the pain. (R. 177, 183, 247).
The claimant’s own statements also provide support for the ALJ’s determination that the
claimant can perform light work. In June of 2007, the claimant went through vocational
rehabilitation, in which he “reported that he would prefer receiving a disability check than to retrain for a new career due to the constant pain that he endures,” but “if he [wa]s approved for
disability he [wa]s interested in part-time employment that would be suitable for his physical
condition.” If, however, the claimant’s social security benefits application were denied, the
claimant stated that “he would be interested in re-training to enter a new career.” In discussing
the kind of work the claimant would like to do, the claimant “voiced an interest in working with
people in a mental health setting, working with animals or working in a light production
assembly setting.” (R. 259).
The ALJ’s determination that the claimant has a residual functional capacity to perform
the full range of light work is based on substantial evidence. See Wolfe v. Chater, 86 F.3d 1072,
1078 (11th Cir. 1996) (holding the ALJ’s adverse finding was supported by substantial evidence
because the claimant’s physical activity and conservative medical treatment were inconsistent
with the claimant’s testimony about his nonexertional impairments). The claimant’s
demonstrated physical capacity since the alleged date of disability, his sporadic and conservative
medical treatment, and his own admission that he can work all constitute substantial evidence
that supports the ALJ’s findings. Thus, the ALJ was under no obligation to order an RFC from a
(ii) Ordering Consultative Examinations
Similarly, although ordering a consultative examination may be appropriate in certain
circumstances, federal regulations do not require the ALJ to do so. 20 C.F.R. §§ 404.1519a(b),
416.919a(b). Instead, the regulations provide that the ALJ “may” order a consultative
examination if the evidence is either inconsistent or insufficient to make a decision. Id.
(emphasis added). A non-exhaustive list of circumstances in which such an examination might
be appropriate include cases where “[t]here is an indication of a change in [the claimant’s]
condition that is likely to affect [his] ability to work, but the current severity of [the] impairment
is not established.” Id. Ultimately, however, the lack of mandatory language and the explanatory
examples provided in the regulations suggest that an ALJ’s RFC determination remains
valid—even in the absence of a consultative examination—if supported by substantial evidence.
Robinson v. Astrue, 365 Fed. App’x 993, 999 (11th Cir. 2010).
Here, the claimant appears to argue that a consultative examination was necessary
because the claimant’s condition had significantly changed from the time he was originally
examined in July of 2007 to the time of his hearing in 2010, because of his substantial weight
gain since 2007 and his 2009 gunshot wound to his left leg. (Pl. Brief, at 9).
(a) Weight Gain
While the claimant gained a significant amount of weight since he first applied for
disability benefits in April of 20076, a consultative examination was not necessary because the
record contains no indication that the weight gain was either likely to affect the claimant’s
functional capacity or not already adequately accounted for in the ALJ’s analysis. See 20 C.F.R.
§§ 404.1519a(b), 416.919a(b).
Like all other impairments, obesity is only relevant to the extent it results in “functional
limitation.” SSR 02-1p, 2002 WL 34686281 (Sept. 12, 2002). Thus, even though the claimant’s
weight and height would likely put him in the “extreme obesity” range, “representing the greatest
risk for developing obesity-related impairments,” the ALJ can still determine the claimant has the
capacity to perform light work because obesity “do[es] not correlate with any specific degree of
functional loss.” Id. Thus, in the absence of any information suggesting that the claimant’s
functionality has been compromised by his weight gain, the ALJ has no obligation to order a
consultative examination, “as long as the record contains sufficient information for the [ALJ] to
make an informed decision.” Robinson, 365 Fed. App’x at 999 (quoting Ingram v. Comm’r of
Soc. Sec. Admin., 496 F.3d 1253 (11th Cir. 2007)).
See supra note 5.
In addition, nothing in the ALJ’s opinion suggests that he did not account for the
claimant’s obesity. For example, the ALJ determined that both the claimant’s obesity and
hypertension were severe impairments. (R.27). Similarly, the ALJ referenced the claimant’s
steady weight gain—including his final weight of 327 pounds—prior to making his decision.
(R.28). Finally, the ALJ specifically made note that Dr. Putnam did not prescribe any follow up
treatment in his December 2009 examination of the claimant, despite the fact that Dr. Putnam
discussed the claimant’s significant weight gain during the examination. (R. 30, 335).
Ultimately, the claimant bears the “very heavy” burden of proving he is disabled,
Robinson, 365 Fed. App’x, at 998. Because obesity alone does not necessarily affect an
individual’s functionality, and because the claimant has not pointed to anything more concrete
than the mere possibility that his weight gain limited his functionality, the court determines that
the ALJ had substantial evidence to find that the claimant could perform the full range of light
work—even without ordering an additional consultative examination to consider the claimant’s
(b) Gunshot Wound
The claimant also argues that an updated consultative examination would have been
appropriate because of his 2009 gunshot wound. As the ALJ pointed out, however, medical
records following the injury indicated that the wound was healing well. (R. 30, 284).
Additionally, at the claimant’s examination with Dr. Putnam just two months after being shot,
Dr. Putnam did not indicate any problems or complications existed with the wound. (R. 30, 335).
Thus, the ALJ had substantial evidence to determine the gunshot wound had no lasting effect and
was not a severe impairment, even without an updated consultative examination.
B. THE ALJ PROPERLY CONSIDERED “SEVERE” IMPAIRMENTS OF RECORD
In addition to alleging that the ALJ’s Residual Functional Capacity determination is not
based on substantial evidence, the claimant also alleges that the ALJ erred in his treatment of the
claimant’s obesity and the ALJ erred in refusing to classify the claimant’s mental impairment as
A severe impairment, or combination thereof, is an impairment that “significantly limits
the claimant’s physical or mental ability to do basic work activities.” Griffin v. Comm’r of Soc.
Sec., No. 12–14849, 2014 WL 1045681, at *3 (11th Cir. March 19, 2014); see also 20 C.F.R. §§
404.1521(a), 416.921(a); Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). Although a
claimant is not disabled unless he can demonstrate he suffers from a severe impairment, the
determination that a severe impairment exists does not automatically result in a positive
disability determination; rather, requiring the claimant to prove he suffers from a severe
impairment or a combination of impairments that is severe “acts as a filter” to prevent frivolous
claims from proceeding. Griffin, 2014 WL 1045681, at *3.
As to the claimant’s suggestion that the ALJ erred in determining the severity of the
claimant’s obesity, this court finds the claimant’s argument moot because the ALJ found that the
claimant’s obesity was a severe impairment. (R. 27). To the extent the claimant attempts to
revisit arguments made previously about the way his obesity was factored into his RFC
determination, this court has already addressed those arguments. Although the social security
rulings recognize that obesity can cause functional limitations, SSR 02-1p, 2002 WL 34686281
(Sept. 12, 2002), that possibility does not change the fact that the burden remains with the
claimant to prove those limitations. Robinson v. Astrue, 365 Fed. App’x 993, 998 (11th Cir.
2010). Ultimately, the record shows no evidence that the claimant’s weight gain has resulted in
any additional functional limitations; therefore, the court finds that the ALJ did not err in
classifying the claimant’s obesity as a severe impairment and subsequently refusing to find the
As to the claimant’s argument that the ALJ erred in refusing to classify the claimant’s
mental impairment as severe, this court holds that the ALJ properly determined that Dr. Rogers’
GAF score of 53—indicating moderate limitations—and diagnosis of a mathematics disorder; a
learning disorder; a history of cocaine, cannabis, and alcohol abuse; and a personality disorder
were not entitled to substantial weight. (R. 31). Dr. Rogers was not the claimant’s treating
psychologist, and in fact only examined the claimant once pursuant to a vocational rehabilitation
program. More importantly, prior to Dr. Rogers’ evaluation in April of 2007, the claimant had
never sought treatment for any mental impairments. (R. 31); see Dryer v. Barnhart, 395 F.3d
1206, 1211 (11th Cir. 2005) (holding that ALJ properly discredited the claimant’s testimony
about an impairment where the claimant could not show routine or consistent treatment). In
addition, the claimant did not list any mental impairments when he filed his application or when
he testified at the hearing. (R. 92, 112, 68–69, 39–64). In short, outside of Dr. Rogers’
examination, the record itself is void of any indication that the claimant suffered from a severe
mental impairment. See 20 CFR §§ 404.1508, 416.908 (“A . . . mental impairment must be
established by medical evidence consisting of signs, symptoms, and laboratory findings, not only
by [the claimant’s] statement of symptoms.”).
Additionally, even Dr. Rogers’ evaluation itself does not suggest that the claimant’s
mental impairment affects his daily activities. (R. 250). While Dr. Rogers did state that the
claimant suffered from below average communication skills and that his response to frustration
would be poor, he ultimately determined that the claimant is “capable of being cooperative with
peers and supervision and maintaining a routine work cycle.” (R. 251). Based on this evidence,
the ALJ justifiably concluded that any mental impairment the claimant may have had put no
more than a “mild” restriction on daily living activities, social function, and maintaining
concentration, persistence, and pace. (R. 31). Because a “severe” impairment is one that
significantly limits the claimant’s ability to do basic work activities, the ALJ properly concluded
that the claimant’s mental impairment was not a severe impairment within the meaning of the
regulations. 20 C.F.R. §§ 404.1521(a); 416.921(a).
For the reasons stated above, the court concludes that the decision of the Commissioner is
supported by substantial evidence and is due to be AFFIRMED.
DONE and ORDERED this the 27th day of March, 2014.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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