Eljack v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge Virginia Emerson Hopkins on 6/22/12. (SAC )
2012 Jun-22 AM 10:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MAWIA MOHAMED ELJACK,
MICHAEL J. ASTRUE,
) Case No.: 2:11-CV-1854-VEH
Plaintiff Mawia Mohamed Eljack (“Mr. Eljack”) brings this action pursuant to
42 U.S.C. § 405(g), § 205(g) of the Social Security Act. He seeks review of a final
adverse decision of the Commissioner of the Social Security Administration
(“Commissioner” or “Secretary”), who denied his application for Supplemental
Security Income (“SSI”). Mr. Eljack timely pursued and exhausted his administrative
remedies available before the Commissioner. The case is ripe for review pursuant
to 42 U.S.C. § 405(g), § 205(g) of the Social Security Act.1
42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.
FACTUAL AND PROCEDURAL HISTORY
Mr. Eljack was a 49-year-old male at the time of his hearing before the
administrative law judge (hereinafter “ALJ”). (Tr. 15, 21). He has at least a high
school education. (Tr. 22). His past work experiences include employment as a
security guard. (Tr. 21). Mr. Eljack claims he became disabled on December 4,
2007, due to diabetes, high blood pressure, swelling of his joints, pain, and
neuropathy. (Tr. 72, 127). His last period of work ended on December 14, 2007.
Mr. Eljack protectively filed an application for SSI on January 30, 2008. (Tr.
111–13). His claims were denied by the Regional Commissioner on April 3, 2008.
(Tr. 66–70). Mr. Eljack timely requested a hearing (Tr. 71), which was held on
October 27, 2009, in Birmingham, Alabama. (Tr. 15). The ALJ concluded that Mr.
Eljack was not disabled and issued his written decision denying his applications for
benefits on December 2, 2009. (Tr. 15–23). The ALJ’s decision became the final
decision of the Commissioner when the Appeals Council denied Mr. Eljack’s request
for review on April 8, 2011. (Tr. 1–5).
Mr. Eljack filed his Complaint on June 1, 2011, which asks this court to review
the ALJ’s decision. (Doc. 1). This court has carefully considered the record and
remands the decision of the ALJ for further findings consistent with this opinion.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court. The ALJ’s legal conclusions, however, are reviewed de novo,
because no presumption of validity attaches to the ALJ’s determination of the proper
legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993).
If the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, the ALJ’s decision must be reversed. Cornelius v.
Sullivan, 936 F. 2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.2 The Regulations define “disabled” as “the
inability to do 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
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment
listed by the Secretary;
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of April 1, 2007.
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in the
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to former applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the
claimant has satisfied steps one and two, she will automatically be found disabled if
she suffers from a listed impairment. If the claimant does not have a listed
impairment but cannot perform her work, the burden shifts to the Secretary to show
that the claimant can perform some other job.” Pope, 998 F.2d at 477; accord Foote
v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
At step one, the ALJ found that Mr. Eljack has not engaged in substantial
gainful activity since December 14, 2007. (Tr. 17). At step two, he found that the
medical evidence supported a finding that Mr. Eljack’s impairments of diabetic
neuropathy, edema, diabetes mellitus II were considered “severe” according to 20
C.F.R. § 416.920(c). (Tr. 17).3 At step three, the ALJ held that Mr. Eljack’s
The ALJ also evaluated the diagnosis of morbid obesity that was present in Mr.
Eljack’s medical records, but found that it did not constitute a “severe” impairments for the
purposes of his disability claims because it “causes no more than a minimal limitation in [Mr.
medically determinable impairments, in combination, do not meet or medically equal
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix I of the
Social Security Regulations. (Tr. 19). At step four, the ALJ considered the entire
record and found that Mr. Eljack retained the residual functional capacity (“RFC”)
to perform a modified range of sedentary work4 and determined that he was “limited
to occasional pushing and pulling bilaterally, and occasional stooping, kneeling,
crouching, and crawling.” (Tr. 20). The ALJ then found that Mr. Eljack could no
longer perform his past relevant work (as a security guard) because his sedentary RFC
no longer allows for him to perform “light and semiskilled” work. (Tr. 21). Finally,
at step five, the ALJ used the Medical-Vocational Guidelines (hereinafter “grids”)
at 20 C.F.R. Part 404, Subpart P, Appendix 2, as a framework for decisionmaking,
and considering the grids along with the testimony of the vocational expert, he
concluded that Mr. Eljack could perform other jobs existing in significant numbers
in the national economy and was therefore “not disabled.” (Tr. 22–23). Accordingly,
the ALJ denied Mr. Eljack’s SSI application. (Tr. 23).
Eljack’s] ability to perform basic work activities.” (Tr. 19). Notably, Mr. Eljack offered no
testimony at the hearing as to this impairment other than stating his “weight doesn’t swing a lot”
and that “it hasn’t been a problem.” (Tr. 37).
Sedentary work involves lifting no more than 10 pounds at a time, occasionally lifting
or carrying articles like docket files, ledgers, and small tools, and occasionally walking and
standing. See 20 C.F.R. § 416.967(a).
Mr. Eljack’s identifies two “reversible errors” in the ALJ’s decision. First, he
contends that this case should be reversed because the ALJ did not properly consider
his age in applying the grids. (Doc. 12 at 11-13). Second, he argues that the ALJ
failed to fully develop the record because he did not order a consultative examination
and did not consider all of Mr. Eljack’s medical diagnoses. (Id. at 13-18).
The ALJ Did Not Properly Consider Mr. Eljack’s Age in Applying The
The grids require the ALJ to “consider [a claimant’s] chronological age in
combination with [his or her] residual functional capacity, education, and work
experience” to determine vocational ability. 20 C.F.R. § 404.1563(a). However, in
applying the grids, the Regulations provide that the Secretary “will not consider [a
claimant’s] ability to adjust to other work on the basis of [his or her] age alone”;
instead, the Secretary is directed to “consider advancing age to be an increasingly
limiting factor in the person’s ability to make such an adjustment.” Id. The
Regulations set out the following age categories for use in applying the grid rules:
a “younger person” is under age 50; a “person approaching advanced age” falls within
the bracket of 50 to 54 years of age; and a “person of advanced age” is age 55 or
older. Id. § 404.1563(c), (d), and (e). The Regulations further provide:
We will use each of the age categories that applies to you during the
period for which we must determine if you are disabled. We will not
apply the age categories mechanically in a borderline situation. If you
are within a few days to a few months of reaching an older age category,
and using the older age category would result in a determination or
decision that you are disabled, we will consider whether to use the older
age category after evaluating the overall impact of all the factors of your
Id. § 404.1563(b) (emphasis added).
This court has recently opined that the proper measuring date for determining
a claimant’s age for application of the grids is the date the ALJ renders his decision.
See Overstreet v. Astrue, No. 11-cv-1238, Doc. 15 at 9-10 (N.D. Ala. May 29, 2012)
(“Accordingly, the court finds that the appropriate measuring date for a claimant’s
age for purposes of grid analysis is the date that the ALJ’s decision is rendered.”
(citing Crook v. Barnhart, 244 F. Supp. 2d 1281, 1283 (N.D. Ala. 2003) and 3 Soc.
Sec. Law & Prac. § 43:153 (2012)).
Here, Mr. Eljack was approximately three and one-half months shy of his
fiftieth birthday on December 2, 2009, the date of the ALJ’s written decision. If he
had been 50 on the date of the decision, that would have placed him in the “person
approaching advanced age” category and resulted in a finding of “disabled” under
Rule 201.12 of the grids had the ALJ been applying the grids directly.5 Though the
In this case, because the ALJ found Mr. Eljack could not perform the entire range of
exertional demands of sedentary work, he used the grids as a “framework” for his decision,
ALJ did not make an express finding in his grid analysis section (Tr. 22) as to the
applicable age category, the ALJ noted earlier in his opinion that Mr. Eljack “was 47
years old, which is defined as a younger individual age 18–49, on the date the [initial
SSI] application was filed.” (Tr. 21) (emphasis added) (citing 20 C.F.R. § 416.963).
Because the ALJ appeared to have measured Mr. Eljack’s age from the date of his
initial SSI application rather than the date of his decision, he wrongly applied the
legal standards. If the ALJ had properly measured Mr. Eljack’s age as of the date of
his decision, which was more than eight months after he turned 49, he would have
recognized the borderline age situation.6
The Eleventh Circuit has not addressed in depth the issue of borderline age
situations in context of Social Security grid analysis. However, the following portion
of a Social Security law treatise specific to the topic of borderline age situations is
relevant and instructive to the case at hand:
consistent with the guidance of Rule 200.00(e). (See Tr. 22).
Based on this court’s research, courts will generally recognize a borderline situation
where a person whose age falls within six months or less of the next highest age category. See,
e.g., Pettway v. Astrue, CIV.A 10-127-C, 2010 WL 3842365, at *3 (S.D. Ala. Sept. 27, 2010)
(“Based on my review of the cases, the consensus among federal courts appears to be that six
months from the older age category is the extent to which courts will recognize a borderline age
situation.” (citing cases)); Harrison v. Astrue, No. 3:09cv509/LAC/EMT, 2011 WL 1158750, at
*9 n.14 (N.D. Fla. Feb. 24, 2011) (citing cases). However, the court recognizes that “[i]n
applying the Grids, the ALJ has the discretion to determine whether, under the circumstances of
the particular case before him, a claimant's age should be considered borderline, and if so, which
Grid Rule(s) should be applied” and that “[t]here are no fixed guidelines as to when a borderline
situation exists.” Harrison, 2011 WL 1158750, at *9 (citations omitted).
As in other cases, when a borderline age situation is presented in a
disability case involving the application of the Medical-Vocational
Guidelines, a factual determination must be made as to the appropriate
age category to apply under the Guidelines. Accordingly, when a
claimant falls within a borderline age group, the SSA may not
mechanically apply age categories in relying on the Medical-Vocational
Guidelines to determine whether the claimant is disabled; rather, the
SSA must determine based on whatever evidence is available which of
the categories on either side of the borderline best describes the
claimant, and the SSA may apply that category in using the Guidelines.
For instance, the determination that a claimant, who was 55 days short
of her 55th birthday on the last day of her insured status, was not of
“advanced age” which, if combined with her complained of ailments,
would have rendered her disabled, was not the result of an ALJ's failure
to conduct a proper analysis of a “borderline” case; review of the ALJ's
decision indicated that the ALJ was unpersuaded by the claimant's
allegations regarding the extent of her impairments and that many health
problems arose after her insured status expired. In another case,
although a claimant was within a few days of reaching age 45 at the time
of the ALJ's decision, hers was not a borderline situation warranting
application of the rule for the 45 to 49 age category because the record
showed that the claimant completed eighth grade and read at a third
grade level, and she said in her application that she could read and write,
which meant that she was not illiterate. However, an ALJ was held to
have impermissibly applied the age categories in a mechanical manner
in considering a claim under the Guidelines when he failed to place a
claimant in the category of claimants approaching advanced age, where
the claimant was only 92 days short of age 50 when the ALJ's decision
was rendered. Moreover, an ALJ had to clarify what age he used in
considering the disability status of a 47-year-old claimant, who was 49
years old at the time of the decision, and elaborate on whether he had
considered the claimant's borderline age and list the applicable reasons
for his decision, so that the court, on judicial review, could determine
whether the ALJ improperly mechanically applied the age categories
when considering the claimant's age as a vocational factor.
An ALJ's improper refusal to place a claimant in the next higher age
category in a borderline situation constitutes harmless error where the
Guideline rule applicable to an individual in the higher category, at the
claimant's education, work experience, and residual functional capacity,
would result in a finding of not disabled.
3 Soc. Sec. Law & Prac. § 43:153.
The Commissioner correctly observes that “simply because a claimant is close
to an older age category does not mean the claimant should be mechanically placed
in the older age category.” (Doc. 10 at 5). However, in this case, the ALJ’s opinion
does not indicate that he even recognized the borderline age situation because he
appeared to use the wrong measuring date for assessing Mr. Eljack’s age. The
Commissioner’s brief focuses on Mr. Eljack’s “fail[ure] to show why he should have
been mechanically placed in the older age category,” id., while the relevant inquiry
for the court to determine is whether the ALJ applied the correct legal standards.
Here, it is clear that he did not. Because the court finds that the ALJ failed to
properly consider Mr. Eljack’s age when applying the grids, his decision is due to be
remanded for further fact findings and assessment of the grids.
The ALJ Fully Developed The Record and His Decision Is Supported
By Substantial Evidence.7
Mr. Eljack also argues that the ALJ failed in his duty to fully develop the
Because the court’s decision to remand for further findings based on the age issue will
not necessarily result in a reversal of benefits, the court also considers Mr. Eljack’s additional
arguments for reversal.
record because he did not order a consultative examination8 and did not consider all
of Mr. Eljack’s medical diagnoses. More specifically,
Plaintiff submits that the ALJ’s failure to develop the record was so
complete that not only did he fail to order a CE, but he did not even
include many of the diagnoses that [Mr. Eljack] had[,] such as
emphysema by x-ray, osteomyelitis of the ankle and foot, diabetic
retinopathy, chronic venous stasis of the legs bilaterally and morbid
obesity. The ALJ also overlooks the fact that there was a diagnosis in
one of the medical records of paranoid schizophrenia. We do not know
whether this diagnosis is accurate or not as it was never mentioned again
and Dr. Allen did not mention it either.
(Doc. 9 at 16).
First, as to Mr. Eljack’s contention that the ALJ failed to consider all medically
determinable diagnoses, the court notes that the ALJ did, in fact, consider his
diagnosis of osteomyelitis as a potentially disabling condition. (See, e.g., Tr. 17
(recognizing that Mr. Eljack “was diagnosed with great toe osteomyelitis” when he
presented to Cooper Green Hospital on December 4, 2007); id. at 18 (“On January 18,
x-rays of [Mr. Eljack]’s right and left foot were obtained due to possible
osteomyelitis.”)). At the hearing, the ALJ specifically questioned Mr. Eljack about
his diagnosis of osteomyelitis, but Mr. Eljack appeared to deny the accuracy of that
Mr. Eljack explains that because “[t]he Social Security Administration did not send
[Mr. Eljack] for a consultative examination (CE) . . . [Mr. Eljack]’s attorney sent him to Dr.
Jeremy Allen, who treats patients at Cooper Green Hospital where [Mr. Eljack] is treated, and
who had access to all of [Mr. Eljack]’s medical records (R. 260-266).” (Doc. 9 at 8). Dr. Allen
examined Mr. Eljack on October 9, 2009. His examination findings and functional assessment,
along with a medical source statement (“MSS”), are in the record at Tr. 260-66.
diagnosis. (See Tr. 39-41). Also, in the ALJ’s opinion, he noted that Mr. Eljack’s
treating physician, after reviewing the x-rays taken on January 18, 2008, “did not see
osteomyelitis in either foot.” (Tr. 18).
Similarly, the ALJ expressly considered Mr. Eljack’s diabetic medical
diagnoses, his venous stasis of the legs, and morbid obesity, as his description of the
medical records is replete with references to these conditions. (Tr. 17–19). Specific
to his diagnosis of morbid obesity, Mr. Eljack admitted at the hearing that his weight
“hasn’t been a problem” for a “long time” his weight “doesn’t swing a lot.” (Tr. 37).
Likewise, when the ALJ questioned Mr. Eljack about his diabetes at the hearing, he
admitted that it’s under fairly good control. (Tr. 42). Mr. Eljack testified that his
blood sugar levels are “in control, but the blood pressure is out of control.” (Tr. 42).
As to the emphysema and paranoid schizophrenia, although the ALJ did not
expressly consider these two diagnoses in his opinion, the medical record does not
indicate that these conditions have caused Mr. Eljack any functional limitations that
would affect his vocational capacity. As to the “diagnosis in one of the medical
records of paranoid schizophrenia” that Mr. Eljack references, he does not contend
that the isolated diagnosis limits his functional capacity in any way. Moreover, Mr.
Eljack admits, “[w]e do not know whether this diagnosis is accurate or not as it was
never mentioned again and Dr. Allen did not mention it either.” (Doc. 9 at 16).
Clearly, by Mr. Eljack’s own admission, his medical record does not substantiate a
medically determinable disabling impairment under the Social Security Act.
Therefore, the court is not persuaded that the ALJ committed reversible error by
failing to consider any of Mr. Eljack’s medically determinable diagnoses.
Second, as to Mr. Eljack’s suggestion that the ALJ failed to develop the record
because he failed to order a consultative examination, the ALJ’s RFC assessment was
nevertheless supported by substantial evidence. Although the ALJ accorded little
weight to the opinion of the consulting physician selected by Mr. Eljack, Dr. Allen
(the only physician in the record who rendered a medical source statement (“MSS”)),
he properly articulated his reasons for doing so:
Dr. Allen assessed that even in the most ideal of circumstances, [Mr.
Eljack] would be unable to compete in the competitive work
environment due to inability to ambulate, and that he would be unlikely
to regain his ability to ambulate in a manner sufficient to regain his
residual functional capacity. Dr. Allen’s opinion, however, is given
little weight as the undersigned did not make the same observations
concerning [Mr. Eljack]’s gait and ambulation at the hearing. Moreover,
[Mr. Eljack] had never treated with Dr. Allen prior to this examination,
and he found the claimant to be more limited than the treating physicians
at Cooper Green Hospital who have treated the claimant on numerous
occasions. Further, the regulations provide that the final responsibility
for deciding issues such as an individual[’]s [RFC] and whether the
[RFC] prevents an individual from working is reserved to the
Commissioner. (20 CFR 404.1527(e) and 416.927(e)).
An ALJ may not arbitrarily reject uncontroverted medical testimony. Walden
v. Schweiker, 672 F.2d 835, 839 (11th Cir. 1982). The opinion of a treating physician
as to the plaintiff’s condition and the medical consequences thereof is entitled to
deference, absent good cause. See 20 C.F.R. §§ 404.1527, 416.927; Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (“The law of this circuit is clear that
the testimony of a treating physician must be given substantial or considerable weight
unless ‘good cause’ is shown to the contrary.”). Good cause exists when the treating
physician’s opinion is “not bolstered by the evidence, or where the evidence supports
a contrary finding.” Lewis, 125 F.3d at 1440. The good cause standard is also met
when “the doctors’ opinions [are] conclusory or inconsistent with their own medical
Here, the ALJ concluded that Dr. Allen’s one-time assessment of Mr. Eljack’s
condition and functional capabilities was due less weight because it was inconsistent
with the opinions of Mr. Eljack’s regular treating physicians at Cooper Green
Hospital. Thus, the ALJ articulated good cause for discounting Dr. Allen’s MSS.
Moreover, the ALJ’s decision to give less weight to Dr. Allen’s opinion is supported
by substantial evidence based on the inconsistencies he identified. The weight
afforded a physician’s conclusions regarding a claimant depends upon the extent to
which statements are supported by clinical or laboratory findings and are consistent
with other evidence of record. See 20 C.F.R. §§ 404.1527(d), 416.927(d)(1); Phillips
v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004); Crawford v. Comm’r, 363 F.3d
1155, 1159-60 (11th Cir. 2004); Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986). A doctor’s opinion should be given controlling weight only if it is consistent
“with other substantial evidence in [Plaintiff’s] case record. . . .” 20 C.F.R. §
404.1527(d)(2). “Generally, the more consistent an opinion is with the record as a
whole, the more weight [that opinion shall be accorded].” 20 C.F.R. § 404.1527(d)(4).
Thus, the court finds no error in the ALJ’s reasoning and decision to discount
the opinion of Dr. Allen. Mr. Eljack nevertheless contends that the ALJ should have
ordered another consultative examiner to support his RFC assessment and fulfill his
obligation to develop a full and fair record. (Doc. 9 at 15 (citing Reeves v. Heckler,
734 F.2d 519, 522 n.1 (11th Cir. 1984) and Holiday v. Bowen, 848 F.2d 1206, 1209
(11th Cir. 1988)). As this court has previously noted, neither the Eleventh Circuit nor
this court has adopted a bright line test to determine whether the lack of a treating
physician’s MSS as to a claimant’s functional ability calls for a remand. Rose v.
Astrue, No. 11-cv-1186-VEH, Doc. 10 at 17-18 (N.D. Ala. Nov. 1, 2011). In some
cases, a treating physician’s MSS is necessary. See, e.g., id.; Clemmons v. Astrue,
No. 3:06-CV-1058-VEH, slip op. at 11 (N.D. Ala. Jun. 11, 2007); Coleman v.
Barnhart, 264 F. Supp. 2d 1007, 1010 (S.D. Ala. 2003). In others, it is not. See, e.g.,
Green v. Social Security Administration., 223 Fed. App’x 915, 923 (11th Cir. 2007)
(ALJ discounted a treating physician's opinion regarding claimant’s functional
abilities and limitations, but there otherwise remained substantial evidence to find the
claimant not disabled); Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)
(lack of a treating physician’s medical opinion did not invalidate the ALJ’s RFC
assessment because there existed substantial evidence, outside the objective medical
evidence, supporting such); Dudley v. Astrue, No. 3:06-CV-1286-VEH (N.D. Ala.
Apr. 24, 2007) (similar); Cash v. Astrue, No. 5:07-CV-0952-VEH (N.D. Ala. May 15,
2008) (similar). In sum, the outcome of these cases turns upon the sufficiency vel non
of other evidence in the record that supports the ALJ’s RFC determination even in the
absence of a MSS from the claimant’s treating physician. Malone, slip op. at 26.
Based on the particular facts and circumstances of this case, the court does not
find that an additional MSS from one of Mr. Eljack’s treating physicians was
necessary to substantially support the ALJ’s decision. This is so because substantial
evidence documenting the non-impact of Mr. Eljack’s medically determinable
impairments independently supports the ALJ’s RFC assessment. More specifically,
the ALJ cited to multiple records from Mr. Eljacks regular treating physicians at
Cooper Green Hospital that show that his primary conditions were “well controlled”
and “healing well.” (Tr. 21 (detailing at least six different treatment records that
“show [Mr. Eljack]’s diabetes mellitus to be well controlled on his prescription
medication regimen and his foot ulcers to be healing well.”)).
uncontroverted records of Mr. Eljack’s regular treating physicians consistently
demonstrate that his medical conditions were improving and, generally, not causing
any observable functional problems, any further MSS from Mr. Eljack’s treating
physicians would be unnecessary in this case.
Additionally, the ALJ’s RFC assessment is further bolstered by his own
credibility determinations based on his observations of Mr. Eljack’s gait and
ambulation at the hearing, which he detailed in his opinion. (See Tr. 20–21 (“After
careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent that
they are inconsistent with the above residual functional capacity.”)).
Because the ALJ’s RFC assessment is supported by substantial evidence, and
because the ALJ applied the correct legal standards in discounting the opinion of Dr.
Allen, the court does not find that the ALJ committed reversible error on the
additional issues raised by Mr. Eljack.
The Court finds that the ALJ’s determination that Mr. Eljack is not disabled is
not supported by substantial evidence because improper legal standards were applied
to the grid analysis (specifically, concerning Mr. Eljack’s age) in reaching his
determination.9 Pursuant to the above analysis, the Commissioner’s final decision
is due to be remanded for further factual findings. A separate order consistent with
this Memorandum Opinion will be entered.
DONE and ORDERED this the 22nd day of June, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
Other than the age issue, the ALJ’s decision is substantially supported by the evidence
and applies the correct legal standards.
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