Chaverst v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 10/31/2012. (AVC)

FILED
2012 Oct-31 PM 03:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SAMUEL ADAM CHAVERST, JR.,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

}
}
}
}
}
}
}
}
}
}
}

Case No.: 2:11-CV-2785-RDP

MEMORANDUM OF DECISION
Plaintiff Samuel Adam Chaverst, Jr. brings this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c) seeking review of the decision by the Commissioner of the Social Security
Administration denying his applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). Based upon this court’s review of the record and the
briefs submitted by the parties, the court finds that the final decision of the Commissioner is due
to be affirmed.
I.

Proceedings Below
Plaintiff filed his application for disability insurance benefits (“DIB”) and Supplemental

Security Income (“SSI”) on September 15, 2006. (Tr. 99). Plaintiff alleged a disability onset
date of September 14, 2006, after a motorcycle accident led to the amputation of his dominant
right arm.

(Tr. 102).

Plaintiff’s application was initially denied by the Social Security

Administration on November 17, 2006. (Tr. 99-107). Plaintiff then requested and received a
hearing before Administrative Law Judge (“ALJ”) L. K. Cooper, Jr. on November 19, 2008. (Tr.
31). In his April 9, 2009 decision, the ALJ determined Plaintiff was not disabled within the

meaning of the Social Security Act and thus not eligible for DIB or SSI benefits. (Tr. 30.).
After the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision became the
final decision of the Commissioner. (Tr. 9). Therefore, it is a proper subject of this court’s
appellate review. 42 U.S.C. §§ 405(g), 1383(c).
Plaintiff was 30 years old at the time of the hearing. (Tr. 33, 99). He did not complete
his high school education, and he was diagnosed with learning disabilities while in school. (Tr.
48-49, 180-90). Plaintiff previously worked in a variety of areas. His last work was medium,
unskilled work in maintenance and housekeeping. (Tr. 34, 157). He had other heavy, unskilled
work in shipping and receiving as a loader. (Id.). Plaintiff had also performed light to medium,
unskilled work in car detailing and as a busser at a country club. (Id.).
On September 14, 2006, Plaintiff’s motorcycle collided with a truck at a high speed. (Tr.
196). He was thrown 65 to 80 feet. (Id.). His injuries were severe and he was brought to UAB
hospital on a trauma alert. (Id.). Plaintiff was diagnosed and treated for bilateral pulmonary
contusions and wounds, an axillary hematoma with a subclavian artery occlusion, a right
midshaft humeral fracture, and facial lacerations. (Id.). During the course of surgery on his arm
at UAB, his surgeons, Dr. Volgas and Dr. Melton, determined Plaintiff’s right arm to be
unsalvageable and the limb was amputated. (Tr. 199). Following surgery, Plaintiff progressed
well and was discharged from UAB on September 23, 2006. (Tr. 196-97).
Plaintiff was seen for follow up appointments at UAB on October 4 and 5, 2006. At his
October 4 appointment, Plaintiff claimed to be doing well except for an inability to sleep at
night. (Tr. 211). At his October 5 appointment, Plaintiff endorsed a pain level of 7 out of 10 and
was prescribed Lortab. (Tr. 215). On Oct. 30, 2006, Plaintiff was seen by his surgeon, Dr.
Volgas, for another follow up appointment. (Tr. 228). Dr. Volgas reported Plaintiff was “in
2

good spirits and . . . doing well in terms of his psychiatric adjustment.” (Tr. 228). He noted
Plaintiff had “some phantom sensation and some phantom pain” and prescribed Lyrica for pain.
(Id.). Plaintiff returned to see Dr. Volgas on January 2, 2007. (Tr. 227). Plaintiff reported little
progress in terms of pain relief and that he had quit taking the Lyrica. (Id.). Because Plaintiff’s
wounds were healed, Dr. Volgas reported there was little more he could do for Plaintiff and
suggested Plaintiff follow up at the pain clinic at Cooper Green Mercy Hospital. (Id.).
On March 5, 2007, Plaintiff was seen at Cooper Green and endorsed a pain level of 10
out of 10. (Tr. 234). Plaintiff indicated Tramdol was his sole medication, and he was prescribed
additional medications for pain. (Tr. 234-35). The specific prescriptions are illegible. (Tr. 235).
Later that month, Plaintiff was seen by a pain specialist, Dr. James Beretta; however, the notes
from this visit are also largely illegible. (Tr. 225). On July 30, 2007, Plaintiff was seen by Dr.
Mark Wilson at the Cooper Green pain clinic. (Tr. 233). During this appointment, Plaintiff
reported no marijuana use since his accident. (Id.) Plaintiff again endorsed a pain level of 10
out of 10; however, Dr. Wilson noted Plaintiff was smiling and in no distress.

(Id.).

Additionally, Dr. Wilson noted that a bottle of Gabapentin prescribed to Plaintiff for pain was
still full and Plaintiff’s one month supply of Tramdol was never refilled. (Id.). Plaintiff cited
difficulty swallowing the Gabapentin as his reason for not taking the medication. (Id.). Dr.
Wilson prescribed new medication, Elavil, for Plaintiff’s pain. (Id.)
Dr. Wilson’s notes from the July 30 appointment also indicate he ordered a knee x-ray
for Plaintiff because Plaintiff complained of knee pain. (Tr. 233). However, Dr. Wilson’s notes
from Plaintiff’s next visit on October 5, 2007 indicate Plaintiff failed to show up for the x-ray
appointment. (Tr. 232). At the hearing, Plaintiff testified that he did in fact show up for the xray but there was no sitting room available in the facility, prompting him to leave. (Tr. 47-48).
3

In any case, according to Dr. Wilson’s October 5, 2007 notes, Plaintiff indicated that his knee no
longer hurt him. (Id.).
At the October 5, 2007 appointment, Plaintiff admitted smoking marijuana within the last
week. (Tr. 232). Plaintiff endorsed a pain level of 9 out of 10; however, he reported only taking
the Elavil prescribed on his last visit occasionally, instead of regularly at bedtime as directed.
(Id.). Dr. Wilson again counseled Plaintiff on properly taking medication and prescribed another
medication, Doxepin, for his pain. (Id.).
On October 29, 2007, Plaintiff reported to vocational rehabilitation services (“VRS”) at
Workshops, Inc. in Birmingham, Alabama for job training. (R. 246). VRS records indicate that
Plaintiff reported he was taking no prescription medications and was in general good health.
(Id). A VRS progress report dated January 7, 2008, noted Plaintiff was “a reliable worker,”
“doing well in class,” and “job ready.” (Tr. 241). On February 7, 2008, VRS terminated
Plaintiff from the program indicating he was “ready for competitive employment.” (Tr. 243).
His final report stated “his rate of production was good especially for someone who has only one
arm.”

(Tr. 244).

At the hearing, however, Plaintiff testified he required many breaks to

complete his work at VRS. (Tr. 46). He also testified that while at VRS his pain was severe
enough to make him want to lie down, but that he was not able to. (Tr. 75). He further testified
that he had to take time off from his work at VRS due to his pain. (Tr. 63). However, when
asked how much time he was required to take off, Plaintiff indicated only one or two days. (Id.).
In fact, attendance and productivity were cited as some of Plaintiff’s strengths by VRS. (Tr.
244).
On March 27, 2008, Plaintiff returned for a follow up appointment with Dr. Wilson at the
pain clinic and reported a pain level of 0 out of 10. (R. 231). He reported he was not taking any
4

prescription medications and that he was “coping and doing great.” (Id.) Dr. Wilson’s notes
indicate he discharged Plaintiff from the pain clinic following this visit.

(Id.). However,

Plaintiff testified at the hearing that if he told Dr. Wilson he was doing great, he meant doing
great on that specific day of the appointment and not overall. (Tr. 55-57). When asked at the
hearing why he reported he was taking no medications to Dr. Wilson, Plaintiff testified (without
specificity) that some of his medication put him in greater pain. (Tr. 52). Additionally, he stated
he could not afford one of his medications, Lyrica. (Id.).
At the hearing, Plaintiff also testified he returned to work for a previous employer, Cash
Molding, in March 2008, working one day per week. (Tr. 38). He stated his work was janitorial
in nature and that he had trouble completing this work because of his pain and injury. (Tr. 3940). Plaintiff indicated he was laid off from this employment in June 2008. (Tr. 37, 50).
Regarding his pain, Plaintiff characterized it as a constant, all day pain. (Tr. 60). He testified
that the pain was extreme enough to require him to “ball up” and stop whatever task he was
doing on bad days. (Tr. 68). He testified that his pain had gotten worse in the last few months.
(Tr. 74). He noted that in the three weeks before his hearing, his pain had required him to stay in
bed three to four days per week. (Tr. 72). His girlfriend, Tanisha Michelle Maston, also
testified at the hearing on his behalf. (Tr. 76-83). She indicated Plaintiff had difficulty with
tasks such as cooking, washing himself, and dressing. (Tr. 80-81). However, Ms. Maston
indicated Plaintiff could successfully perform other tasks such as driving a vehicle despite his
pain. (Tr. 81). Plaintiff also indicated he was able to successfully text message and otherwise
operate a cellular telephone. (Tr. 84).

5

II.

The ALJ’s Decision
The law and regulations governing claims for DIB and SSI are identical. Therefore,

claims for DIB and SSI are treated identically for the purpose of determining whether a claimant
is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir. 1986). Claimants under
DIB and SSI must prove “disability” within the meaning of the Act, which defines disability in
virtually identical language for both programs. 42 U.S.C. §§ 423(d), 1382c(a)(3),
1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a), 416.905(a). A person is entitled to disability benefits
when the person is unable to “engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). “Substantial gainful activity” is work that
involves significant physical or mental activities done for pay or profit. 20 C.F.R. § 404.1572.
A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities, which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner employs a five-step, sequential evaluation process to determine
whether a claimant is entitled to benefits:
1.
2.
3.
4.
5.

Is the person presently working?
Is the person’s impairment(s) severe?
Does the person’s impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
Is the person unable to perform his or her former occupation?
Is the person unable to perform any other work within the national
economy?

20 C.F.R. §§ 404.1520, 416.920. Before performing the fourth and fifth steps, the ALJ must
determine the claimant’s residual functional capacity (“RFC”). Phillips v. Barnhart, 357 F.3d
6

1232, 1238-39 (11th Cir. 2004). The RFC is the most the claimant is able to do despite his
impairments and is based on all relevant medical and other evidence. Id. at 1238. It can contain
both exertional and nonexertional limitations. Id. at 1242-43.
The burden of proof rests squarely on a claimant through step four in the process. Id. at
1237-39.

If a claimant meets his burden through step four, the burden shifts to the

Commissioner at step five. Id. at 1241 n.10. If a claimant is unable to perform his previous
work, the Commissioner must show there are a significant number of jobs in the national
economy the claimant can perform. Id. at 1239. This determination is based on the claimant’s
RFC, age, education, and work experience. Id. The ALJ can either use the Medical Vocational
Guidelines (“the Grids”) or hear testimony from a vocational expert (“VE”) in making this
determination. Id. at 1239-40.
The ALJ found that Plaintiff had not engaged in substantial gainful activity since
September 14, 2006. (Tr. 24). Plaintiff met the insured status requirements of the Social
Security Act through September 30, 2011. (Id.). The ALJ concluded Plaintiff had the severe
impairment, as defined by the Social Security Act, of phantom limb pain associated with an
upper extremity amputation.

(Id.).

At the hearing, Plaintiff also alleged knee problems

contributing to his inability to work; however, the ALJ determined Plaintiff failed to produce
evidence supporting that claim. (Tr. 25). The ALJ then determined that Plaintiff’s above listed
impairment did not meet or medically equal the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Id.). This was because the ALJ determined Plaintiff retained the ability
to perform fine and gross movements effectively with his left extremity. (Id.).
Before proceeding to steps four and five, the ALJ determined Plaintiff had the RFC to
“perform simple light work, as defined in 20 C.F.R. [§§] 404.1567(b) and 416.967(b), that would
7

not be precluded by the loss of the dominant upper extremity.” (Tr. 25). The ALJ determined
that Plaintiff’s medically determinable impairment could reasonably be expected to cause the
alleged phantom limb pain; however, the ALJ concluded Plaintiff’s allegations regarding the
intensity, persistence, and limiting effects of his symptoms were not credible to the extent they
were inconsistent with the ALJ’s stated RFC assessment. (Tr. 26). In support of this finding, the
ALJ cited Plaintiff’s noncompliance in properly taking prescription medication. (Id.). He noted
inconsistences in Plaintiff’s allegations.

(Id.).

He also cited positive work reports from

Plaintiff’s time at VRS that were contrary to Plaintiff’s hearing testimony. (Tr. 27-28). The ALJ
noted that although Plaintiff testified his pain had become worse since his time at VRS, he
reported no objective medical evidence in support of his claim. (Id.). Finally, the ALJ cited
testimony from the hearing indicating Plaintiff was adapting to the use of one hand in everyday
activities such as living alone, driving, and operating a cellular telephone. (Tr. 28).
After determining Plaintiff’s RFC, the ALJ proceeded with step four of the disability
determination and concluded that Plaintiff was unable to return to any of his past relevant work.
(Tr. 28).

In the final step of the analysis, step five, the ALJ determined that considering

Plaintiff’s age, education, work experience, and RFC, there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform.

(Tr. 29).

The ALJ’s

determination was based upon the testimony of the VE. (Id.). Thus, the ALJ ruled Plaintiff was
not disabled as defined by the Social Security Act and not entitled to DIB or SSI benefits. (Tr.
29-30).
III.

Plaintiff’s Argument for Remand or Reversal
Plaintiff’s brief presents arguments organized into two sections. The first section alleges

the ALJ erred because the evidence presented by Plaintiff established a period of at least twelve8

months of disability. (Pl.’s Mem. at 6-9). The second section of Plaintiff’s brief argues that the
ALJ erred in determining Plaintiff’s RFC. (Pl.’s Mem. at 9-11). The court has scrutinized
Plaintiff’s brief and identified the following specific contentions in this section: (1) the ALJ’s
RFC determination was not compliant with Social Security Ruling 96-8p (Pl.’s Mem. at 9); (2)
the Commissioner and later the ALJ improperly relied on an RFC generated by a non-M.D.
disability specialist (Pl.’s Mem. at 9-10); and (3) the ALJ failed to develop the record by not
ordering a consultative examination because no Social Security Medical Source Opinion was
available to the ALJ. (Pl.’s Mem 10-11). The court will address each of these arguments in turn.
IV.

Standard of Review
Judicial review of disability claims under the Social Security Act is limited to whether

the Commissioner’s decision is supported by substantial evidence and whether the correct legal
standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002). “Substantial evidence is less than a preponderance, but rather such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005); see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990).
The Commissioner’s factual findings are conclusive when supported by substantial
evidence. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). If supported by substantial
evidence, the Commissioner’s factual findings must be affirmed, “even if the evidence
preponderates against the Commissioner’s findings.” Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1159 (11th Cir. 2004); see also Martin, 894 F.2d at 1529. Legal standards are
reviewed de novo. Moore, 405 F.3d at 1211.

9

V.

Discussion
1.

The ALJ Committed No Reversible Error in Finding Plaintiff was Not
Disabled at Any Time for a Twelve Month Period.

Plaintiff first argues the ALJ erred in failing to find that a period of disability existed for
at least twelve months. Specifically, Plaintiff claims the “medical evidence of record reasonably
supports a finding that a threshold period of disability of twelve months was established.” (Pl.’s
Mem. at 6). Over several pages, Plaintiff’s brief outlines the evidence of his pain presented to
the ALJ. (Pl.’s Mem. at 6-8). Additionally, Plaintiff asserts that “[t]he ALJ did not bifurcate his
findings in any way, finding [Plaintiff] was not disabled from September 2006 through the date
of the decision.” (Pl.’s Mem. at 8). Plaintiff’s argument concludes by noting the ALJ found
credibility issues in Plaintiff’s pain testimony, but did not entertain the possibility Plaintiff used
marijuana for pain relief. (Pl.’s Mem. at 9).
The court notes that Plaintiff cites no authority of any kind in support of this argument.
It appears Plaintiff believes this court can review the ALJ’s factual determinations de novo. It
cannot. “This court may not decide facts anew, reweigh the evidence, or substitute our judgment
for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citation
omitted). Furthermore, “[i]ssues raised in a perfunctory manner, without supporting arguments
and citation to authorities, are generally deemed to be waived.” N.L.R.B. v. McClain of Georgia,
Inc., 138 F.3d 1418, 1422 (11th Cir. 1998). The court cannot reconsider the evidence presented
at the hearing in the manner Plaintiff asks. To the extent that Plaintiff’s brief in this section
presents further arguments beyond a reconsideration of the evidence, such arguments are too
undeveloped for the court to make any determinations regarding them.

Finally, and most

importantly, the ALJ’s findings challenged (albeit in a perfunctory manner) here are supported
10

by substantial evidence. Thus, this court determines the ALJ committed no reversible error in
concluding that no twelve-month period of disability existed.
2.

The ALJ’s Residual Functional Capacity (RFC) Determination was Proper
and Supported by Substantial Evidence.

Plaintiff’s brief makes several arguments and assertions concerning the ALJ’s RFC
determination. The court has grouped these into three subsections in order to address them in a
more structured manner.
A.

Plaintiff Has Failed to Show the ALJ’s RFC Determination was Not
Compliant with Social Security Ruling 96-8p.

Plaintiff makes the following argument regarding the ALJ’s RFC determination:
[The ALJ’s RFC] is merely a circular, conclusory statement that
does not constitute an RFC and is not compliant with the
specificity requirements of [Social Security Ruling] 96-8p. It did
not include any limitations in vocation terms and failed to take
account of the effect of [Plaintiff’s] pain due to be addressed by
the virtue of its inclusion as a severe impairment. It does not even
agree with the hypothetical presented to the VE who was left to
gapfill for the ALJ in this regard.
(Pl.’s Mem. at 9).

Again, Plaintiff raises arguments “in a perfunctory manner, without

supporting arguments and citation to authorities.” McClain of Georgia, Inc., 138 F.3d at 1422.
While Plaintiff cites to SSR 96-8p1, his brief contains no references to specific provisions of the
ruling beyond what is outlined above. Plaintiff’s assertion that the ALJ’s failure to include
“limitations in vocational terms” is too underdeveloped for the court to make a determination
regarding its merits. Furthermore, while Plaintiff’s argument cites to the hypothetical presented
to the VE, the hypothetical is solely an issue for step five in the Social Security process. It has
1

Social Security Rulings, such as SSR 99-8p, are published on authority of the Commissioner and are binding
on all components of the administrative process. Klawinski v. Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th Cir.
2010) (citing Sullivan v. Zebley, 493 U.S. 521, 531 n. 9 (1990)). As the Eleventh Circuit has noted, “[e]ven though the
rulings are not binding on us, we should nonetheless accord the rulings great respect and deference, if the underlying
statute is unclear and the legislative history offers no guidance.” Id. (citation omitted).

11

no bearing on the ALJ’s RFC determination and is thus not relevant as to this argument. See
Phillips, 357 F.3d at 1240.
With respect to Plaintiff’s assertion that the ALJ “failed to take account of the effect of
pain due to be addressed by the virtue of its inclusion as a severe impairment,” the court notes
the ALJ is not necessarily required to limit the claimant’s RFC simply because the claimant’s
impairments were found to be severe in step two. Rather, the RFC is an assessment of a
claimant’s ability to work in consideration of his impairments, including those that are severe
and not severe. See 20 C.F.R. § 404.1545. Evaluating Plaintiff’s RFC, the ALJ determined that
Plaintiff’s medically determinable impairment could reasonably be expected to cause his alleged
phantom pain. (Tr. 26). See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). However,
the ALJ found Plaintiff’s allegations concerning the intensity, persistence, and limiting effects of
these symptoms were not credible to the extent they were inconsistent with his RFC. (Tr. 26).
In this jurisdiction, “[i]f the ALJ discredits subjective testimony, he must articulate
explicit and adequate reasons for doing so. Failure to articulate the reasons for discrediting
subjective testimony requires, as a matter of law, that the testimony be accepted as true.” Wilson
v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citations omitted). Complying with this
requirement, the ALJ thoroughly reviewed Plaintiff’s medical records, testimony at the hearing,
and other evidence presented and stated explicit and adequate reasons for discrediting Plaintiff’s
allegation.
Specifically, the ALJ cited Plaintiff’s failure, on multiple occasions, to comply with
taking medications prescribed for pain as evidence belying the severity and chronicity of his
alleged pain. (Tr. 26-27). In response to Plaintiff’s assertion at the hearing that he could not
afford at least one of his medications, the ALJ noted Plaintiff had the resources to purchase
12

marijuana and cigarettes, suggesting a lack of credibility with respect to this assertion. (Tr. 28).
The ALJ noted that at a March 2007 visit to the Cooper Green Mercy Hospital pain clinic,
Plaintiff endorsed a pain level of 10 out of 10 pain, but his physician noted he was smiling,
appeared not to be in distress, and had a normal weight and blood pressure. (Tr. 27). The ALJ
also discussed that while Plaintiff testified at the hearing that he had to miss days at VRS due to
pain, and that his pain was constantly requiring rest periods at VRS, the documentation provided
by VRS noted attendance was one of Plaintiff’s strengths and nothing in his VRS reports
indicated Plaintiff required accommodations for rest. (Id.). Additionally, although Plaintiff
testified that his pain became considerably worse after completing VRS, the ALJ cited a report
from Cooper Green Hospital two months after Plaintiff left VRS indicating he endorsed a pain
level of 0 out of 10 pain. (Tr. 27-28). The ALJ noted that between Plaintiff’s March 27, 2008
visit to Cooper Green and the hearing on November 19, 2008, Plaintiff produced no objective
evidence collaborating his allegation of worsened pain. (Tr. 28).
In sum, much of Plaintiff’s assertions in this argument are either irrelevant or too
underdeveloped for the court to make any determination regarding their merits. Furthermore,
Plaintiff fails to show the ALJ did not properly address his allegations of pain. The ALJ found
Plaintiff’s pain allegations were not credible, and provided explicit and more than adequate
reasoning for this determination. Thus, Plaintiff’s argument that the ALJ’s decision was not
compliant with SSR 96-8p is without merit.
B.

No Improper Weight at Any Level was Given to a Non-Medical
Source Opinion.

Plaintiff next contends that “[t]he ALJ did not state what weight was given to any
medical opinion and did not even report any State Agency assessment.” (Pl.’s Mem. at 9).
13

Plaintiff notes that his initial RFC assessment was performed by a non-medical disability
specialist, Felecia Haynesworth, without any Medical Source Opinion (“MSO”). (Id.). Plaintiff
argues that the only time a non-medical examiner may make a disability determination is when
“there is no medical evidence to examine and the individual refuses to attend a consultative
examination.” (Pl.’s Mem. at 10). In support of this argument, Plaintiff cites 20 C.F.R. §
404.1615(c)(1) and (2), which state, “Disability determinations will be made by: (1) A State
agency medical or psychological consultant and a State agency disability examiner; (2) A State
agency disability examiner alone when there is no medical evidence to be evaluated.” Plaintiff
further argues that because Ms. Haynesworth’s report was not a MSO, it was not entitled to be
given any weight by the ALJ. While the ALJ’s opinion does not mention Ms. Haynesworth’s
report, Plaintiff contends that the resemblance between the ALJ’s opinion and Ms.
Haynesworth’s report indicates reliance.2 (Pl.’s Mem. at 10).
To the extent Plaintiff argues that the ALJ must explicitly state how much weight he
gives to each piece of evidence used in his consideration, that argument is wide of the mark —
there is no such requirement. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (noting
that “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in
his decision, so long as the ALJ’s decision . . . is not a broad rejection which is not enough to
enable. . . this court to conclude that the ALJ considered her medical condition as a whole.”)

2

The court notes that Plaintiff’s brief states Ms. Haynesworth’s report was “not from an acceptable medical
source and is entitled to no weight.” (Pl’s Mem. at 10). In the next sentence, Plaintiff states the ALJ’s RFC finding
“closely resembles” Ms. Haynesworth’s assessment. (Id.). Furthermore, in Plaintiff’s conclusion, he states “[the ALJ’s
RFC findings] are not based on an acceptable medical source.” (Pl’s Mem. at 11-12). However, Plaintiff also states
the ALJ’s RFC findings were “unilateral,” without further explanation. (Pl’s Mem. at 10). This lone statement seems
to contradict the whole of Plaintiff’s argument. Based upon the entirety of Plaintiff’s brief, the court has attempted to
construe the most logical meaning to Plaintiff’s argument but notes this ambiguity. To the extent Plaintiff presents
further arguments regarding the “unilateral” nature of the ALJ’s decisions, such arguments are too underdeveloped for
the court to make a determination regarding their merits and are deemed waived.

14

(internal citations omitted). The ALJ must state what weight he gives specific medical evidence
when confronting a situation of differing opinions. See Sharfarz v. Bowen, 825 F.2d 278, 280
(11th Cir. 1987). However, Plaintiff makes no allegation that the ALJ discounted or discredited
any objective medical evidence presented in support of Plaintiff’s claim. His argument is that
the ALJ improperly relied on evidence, namely Ms. Haynesworth’s report.
Reviewing the record, it appears Ms. Haynesworth was a Single Decision Maker
(“SDM”).

(See Tr. 217-224).

SDMs are part of a test program of the Social Security

Administration for making initial disability determinations by non-medical experts. 20 C.F.R. §
404.906(a). Regarding the SDM test program’s effect on 20 C.F.R. § 404.1615, the regulation
cited by Plaintiff, this court has recently noted:
Title 20 C.F.R. § 404.906 states that it will institute these new
procedures “[n]otwithstanding any other provision in this part or
part 422 of this chapter.” 20 C.F.R. § 404.906(a) . . . . Alabama is
one of the states in which these modifications are being tested. 71
Fed.Reg. 45,890 (August 10, 2006). Therefore, the provisions in
20 C.F.R. § 404.906 take precedence over those in 20 C.F.R. §
404.1615 . . . . One of the modifications put into effect by these
new regulations is the Single Decision Maker Model. Under this
model, a single decision maker will make the disability
determination and may also determine if other conditions for
entitlement to benefits based on disability are met. Under this
plan, a signature from a medical or psychological consultant is not
required on disability determination forms. 20 C.F.R. § 404.906
(2007).
Wilson v. Astrue, 2012 WL 3628679, at *7 (N.D. Ala. Aug. 16, 2012). Thus, any suggestion that
Plaintiff’s RFC assessment at the state agency level was inappropriate is without merit.
Regarding Plaintiff’s assertion that the ALJ was not entitled to give any weight to the
SDM’s report, the court again notes that Plaintiff fails to cite any authority in support of this
proposition. Assuming, arguendo, that Plaintiff’s legal interpretation is correct and the ALJ was
15

not entitled to give any weight to the SDM’s report, his argument still fails because it is
speculative. Plaintiff presents no evidence that the ALJ relied on the SDM’s report. Rather,
Plaintiff merely notes that the ALJ’s RFC assessment “closely resembles” the SDM’s report and
invites the court to guess as to the inner thoughts of the ALJ. Such speculation lies beyond this
court’s scope of review, which is confined to whether the ALJ’s decision applies the proper legal
standards and is supported by substantial evidence. Wilson, 284 F.3d at 1221. In sum, Plaintiff
fails to show the Commissioner, at any level, improperly relied on the SDM’s report.
C.

The ALJ Did Not Fail to Develop the Record.

Finally, Plaintiff claims the ALJ failed to developed the record because no MSO was
available to the ALJ when making his RFC determination. Plaintiff acknowledges that there is
no specific requirement for a MSO, but contends the ALJ has the option of ordering a
consultative examination and, in this situation, should have taken advantage of this option in
order to comply with his duty to fully develop the record.
In support of his argument, Plaintiff claims the ALJ should have ordered a consultative
medical examination based upon 20 C.F.R. § 404.1519a(b), which states in relevant part:
Situations requiring a consultative examination. A consultative
examination may be purchased when the evidence as a whole, both
medical and nonmedical, is not sufficient to support a decision on
your claim. Other situations, including but not limited to the
situations listed below, will normally require a consultative
examination:
…
(5) There is an indication of a change in your condition that
is likely to affect your ability to work, but the current
severity of your impairment is not established.
As the courts have often noted, “[b]ecause a hearing before an ALJ is not an adversary
proceeding, the ALJ has a basic obligation to develop a full and fair record.” E.g., Graham v.
16

Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). However, Plaintiff’s argument is even more
problematic in that it takes 20 C.F.R. § 404.1519a(b) out of context and fails to appreciate his
burden of proving a disability.
While 20 C.F.R. § 404.1519a(b) appears to support Plaintiff’s argument, Plaintiff fails to
cite 20 C.F.R. § 404.1519a(a), which indicates the scope of the provision. Specifically, the
section (a) states, “If we cannot get the information we need from your medical sources, we may
decide to purchase a consultative examination.” 20 C.F.R. § 404.1519a(a) (emphasis added).
Section (a) goes on to state, “Before purchasing a consultative examination, we will consider not
only existing medical reports, but also the disability interview form containing your allegations
as well as other pertinent evidence in your file.” (Emphasis added). Furthermore, the language
in Section 404.1519a(b), cited by Plaintiff, also uses the term “may” instead of “shall”,
indicating the ALJ has discretion in exercising this authority. As the Eleventh Circuit has noted:
The ALJ may ask the claimant to attend a consultative examination
at the Commissioner’s expense, but only after the Commissioner
(through the ALJ) has given “full consideration to whether the
additional information needed ... is readily available from the
records of [the claimant’s] medical sources.” 20 C.F.R. §
404.1519a(a)(1). The regulations “normally require” a consultative
examination only when necessary information is not in the record
and cannot be obtained from the claimant’s treating medical
sources or other medical sources. 20 C.F.R. § 404.1519a(b).
Doughty v. Apfel, 245 F.3d 1274, 1280-81 (11th Cir. 2001). While “[t]he administrative law
judge has a duty to develop the record where appropriate . . . [he] is not required to order a
consultative examination as long as the record contains sufficient evidence for the administrative
law judge to make an informed decision.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d

17

1253, 1269 (11th Cir. 2007). Consultative examinations are appropriate in certain situations to
help the ALJ make an “informed decision” about a claimant’s medical condition. Id.
As previously discussed, the record contained extensive medical records from Plaintiff’s
accident and initial surgery, through his discharge from the Cooper Green pain clinic. To the
extent Plaintiff argues that the ALJ should have ordered a consultative exam based upon his
testimony of a recent increase in his pain, the court notes that Plaintiff failed to carry his burden
of proving disability by presenting objective medical evidence in support of this claim. See
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Based upon the evidence presented
by Plaintiff in support of his claim, the record was sufficient for the ALJ to make an informed
decision regarding Plaintiff’s condition. Thus, Plaintiff fails to show the ALJ did not fully
develop the record by not ordering a consultative examination.
VI.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff was not disabled during

the period insured is supported by substantial evidence, and proper legal standards were applied
in reaching this determination. The Commissioner’s final decision is due to be affirmed and a
separate order in accordance with this memorandum of decision will be entered.
DONE and ORDERED this

31st

day of October, 2012.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

18