McAllister v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 09/19/12. (CVA)

FILED
2012 Sep-19 PM 02:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIAM G. MCALLISTER,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
2:11-cv-3845-AKK

MEMORANDUM OPINION
Plaintiff William G. McAllister (“McAllister”) brings this action pursuant to
section 1631(c)(3) of the Social Security Act (“the Act”), 42 U.S.C. § 1383(c)(3),
seeking review of the final adverse decision of the Commissioner of the Social
Security Administration (“SSA”). Doc. 1. This court finds that the Administrative
Law Judge’s (“ALJ”) decision - which has become the decision of the
Commissioner - is supported by substantial evidence. Therefore, for the reasons
elaborated herein, the Court will AFFIRM the decision denying benefits.
I. Procedural History
McAllister filed his application for Title XVI Supplemental Security Income

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(“SSI”) on August 26, 2008, alleging a disability onset date of May 10, 2007, due
to a severe head injury he sustained in an accident on January 14, 1988. (R. 96,
140). After the SSA denied his application on October 31, 2008, (R. 64-68),
McAllister requested a hearing on November 24, 2008, (R. 71), which he received
on April 13, 2010, (R. 30-61). At the time of the hearing, McAllister was 52 years
old with a high school education, and his past relevant work included working as a
carpet cleaner. (R. 25, 144, 163). McAllister had not engaged in substantial
gainful activity since August 26, 2008, the date of his application. (R. 20).
The ALJ denied McAllister’s claims on May 10, 2010, (R. 15-28), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review on September 8, 2011, (R. 1-6). McAllister then filed this action
on November 7, 2011, pursuant to 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
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supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability 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
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has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). Specifically, the Commissioner
must determine in sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to

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prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
The court turns now to the ALJ’s decision to ascertain whether McAllister
is correct that the ALJ committed reversible error. In that regard, the court notes
that, performing the five step analysis, the ALJ initially determined that McAllister
had not engaged in substantial gainful activity since the date of his application,
and therefore met Step One. (R. 20). Next, the ALJ found that McAllister
suffered from the severe impairments of “cognitive disorder and status post closed
head injury.” Id. The ALJ then proceeded to the next step and found that
McAllister failed to satisfy Step Three because he “does not have an impairment
or combination of impairments that meets or medically equals one of the listed
impairments.” (R. 20). Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to
Step Four, where he determined that:
[T]he claimant has no impairment-related exertional limitations, but
has ... non-exertional limitations ... The claimant can learn and
remember simple work routines with practice, and can understand and
remember simple instructions but not detailed ones. He could carry
out simple instructions and sustain attention to simple, familiar tasks
for extended periods. Claimant would benefit from a flexible
schedule and would be expected to miss one to two days of work per
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month. He would benefit from casual supervision and would function
best with his own work area apart from others. Claimant could
tolerate ordinary work pressures but should avoid excessive
workloads, quick decision making, rapid changes, and multiple
demands. He would benefit from regular rest breaks and a slowed
pace but will still be able to maintain a work pace consistent with the
mental demands of competitive level work. Contact with the public
should be casual and feedback should be supportive. Criticism
should be tactful and non-confrontational. Contact with co-workers
should also be casual. Claimant would be expected to have occasional
conflict with co-workers. He could adapt to infrequent, well
explained changes. Claimant would need help with long term
planning and goal setting but would be able to manage short-term
planning on his own.
(R. 22). Moreover, in light of the “non-extertional limitations” residual functional
capacity (“RFC”), the ALJ determined that McAllister is “unable to perform any
past relevant work.” (R. 25). Lastly, in Step Five, the ALJ considered
McAllister’s age, education, work experience, and RFC, and determined that
“there are jobs that exist in significant numbers in the national economy that the
claimant can perform.” (R. 25). Because the ALJ answered Step Five in the
negative, the ALJ found that McAllister “has not been under a disability, as
defined in the Social Security Act, from August 26, 2008, the date the application
was filed.” (R. 26). See also McDaniel, 800 F.2d at 1030.
V. Analysis
The court turns now to McAllister’s contentions that the ALJ (1) failed to

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develop the record by obtaining a medical source opinion (“MSO”) from a medical
expert or by re-contacting the consultative physician for clarification of the
medical report, (2) failed to generate the physical RFC at the initial level, and (3)
failed to meet his burden to establish other work that McAllister could perform by
not considering McAllister’s limitations to include sheltered workshop or
supervised work rather than competitive work. See doc. 7, at 5-10. The court
addresses each contention in turn.
A.

Alleged failure to develop the record with MSO by medical expert or
by re-contacting consulting physician

McAllister contends that the ALJ’s RFC findings were not based on
substantial evidence since the ALJ purportedly failed to fully develop the record
by obtaining an MSO from a medical expert to examine or review the record or
“by contacting the consultive physician for clarification.” Doc. 7 at 5-8. The court
disagrees.
i. Alleged failure to obtain medical expert testimony
While an ALJ “has a basic duty to develop a full and fair record,” Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003), the ALJ is not obligated to
automatically obtain testimony from a medical expert. Rather, the ALJ “may ask
for and consider the opinion of a medical . . . expert concerning whether ...[a

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claimant’s] impairment(s) could reasonably be expected to produce [his or her]
alleged symptoms.” 20 C.F.R. § 404.1529 (emphasis added). Critically, the ALJ
is not required to order additional medical opinion when, as here, the record
contains sufficient evidence for the ALJ to make a disability determination.
Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007) (citation
omitted). Indeed, the ALJ considered McAllister’s entire medical record
available, which was admittedly sparse since McAllister last sought treatment for
his 1988 injury in 1990, to reach a finding that McAllister is not disabled.
Specifically, the record shows that two doctors examined McAllister, including
Malaika Hakima, M.D. on September 23, 2008, (R. 176-178), and Sally Gordon,
Ph.D., a licensed psychologist, on September 22, 2008, (R. 181-184). As it relates
to Dr. Hakima, the ALJ noted that Dr. Hakima reported that McAllister “had
normal grip strength,” his “gait was completely normal [and] there was no
shuffling or wobbling,” and diagnosed McAllister with “kyphosis, history of
mental impairment, and history of head trauma.” (R. 24). Based on Dr. Hakima’s
report, the ALJ noted that “Kyphosis was present but [McAllister] had full range
of motion in all joints.” Id.
After reviewing Dr. Hakima’s report, the ALJ turned next to the
psychological findings and noted that “[a]s far as [McAllister’s] cognitive
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disorder, the objective medical evidence does not support deficits that would
preclude work activity on a regular and sustained basis.” (R. 24). The ALJ went
on to note that “[i]n a further attempt to develop a medical record that is nearly
non-existent due to the claimant’s failure to have sought treatment since 1990, the
State agency arranged for a consultative psychological examination of the
claimant, which was performed by Sally Gordon, Ph.D.” (R. 24). The ALJ added
that
Dr. Gordon noted that [McAllister] drove himself to the examination,
and that he had reported an MVA in 1988, a subsequent return to
independent living following a year of convalescence, a history of
marijuana and cocaine use and two driving-under-the-influence
charges. Dr. Gordon noted...no deficits of attention or concentration,
...normal receptive and expressive language skills, a normal
(euthymic) mood, and no difficulty comprehending test questions and
instructions. [McAllister] was alert and oriented in all spheres, had
average working memory, judgment and intelligence, denied any
mental health treatment or psychological disturbances, and reported
no problems with sleep or appetite. Dr. Gordon diagnosed a
cognitive disorder, NOS, alcohol abuse/polysubstance abuse in full
remission, and a global assessment of functioning of 70, which
indicated only mild symptoms.
(R. 24). Consequently, as related to McAllister’s cognitive disorder, the ALJ
found that “there is no objective evidence to support a level of impairment that
would prevent [McAllister] from performing work activity. He has no significant
deficits in concentration, persistence, or pace. His overall working memory fell

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within the average range, as did his judgment and cognitive function.” (R. 25).
Based on the reports of Drs. Hakima and Gordon, the ALJ held that
“[o]verall, the objective medical evidence demonstrated the absence of any
significant physical limitations that would preclude all work activity or that would
limit the claimant to an extent greater than has been determined herein.” (R. 24).
In reaching this finding, the ALJ noted that McAllister “had worked full time
many years subsequent to his alleged closed head injury,” and “has functioned
without significant deficits ... including performing odd jobs such as painting and
cutting grass for payment.” Id. In short, there was nothing in the record to support
McAllister’s disability contention. In fact, McAllister’s work history suggested
otherwise. Based on this court’s review of the record, the findings the ALJ made
concerning his evaluation of the two medical reports are sufficiently extensive for
the ALJ to make a RFC determination and to find that McAllister was not
disabled. Accordingly, the ALJ committed no error by failing to obtain a medical
expert’s opinion.
ii. Alleged failure to re-contact Dr. Hakima for clarification of the medical
report
Alternatively, McAllister contends that “the ALJ should have considered
developing the record to obtain an MSO by contacting the consultative physician

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[Dr. Hakima] for clarification.” Doc. 7 at 8. Unfortunately for McAllister, the
ALJ is only obligated to obtain a clarification when a consultative physician’s
report is “inadequate or incomplete” such that the ALJ cannot make an informed
decision regarding whether a claimant is disabled. See Davison v. Astrue, 370
Fed.App’x 995, 997 (11th Cir. 2010); Vesty v. Astrue, 353 Fed.App’x 219, 225
(11th Cir. 2009); 20 C.F.R. § 416.919p(a)-(b). In such a case, the ALJ must
attempt to develop the record further by contacting the treating physician to
determine whether the required information is available. See id.
Here, Dr. Hakima’s report was sufficiently complete for the ALJ to
determine, with the other evidence in the record, that McAllister was not disabled.1
Specifically, Dr. Hakima determined McAllister’s chief complaints (“1. Balance
and equilibrium problem. 2. Memory impairment”), reviewed McAllister’s history
of present illness (“[i]n 1988 he had a motor vehicle accident” resulting in “severe
head trauma”), reviewed the impact the illness had on McAllister’s activities of

1

A complete consultative examination report includes the following: (1) the claimant’s
major or chief complaints; (2) a detailed description of the claimant’s history of the major
complaints; (3) a description of pertinent positive and negative detailed findings based on the
history, examination, and lab tests related to the major complaints and any other abnormalities or
lack thereof found during the exam or lab tests; (4) the results of the lab tests; (5) the diagnosis
and prognosis for the claimant’s impairment; (6) a statement about what the claimant can still do
despite the impairments; and (7) an explanation or comment by the medical source on the
claimant’s major complaints. Davison, 370 F. App’x at 997-98 (citing 20 C.F.R. §§
416.919n(c)(1)-(7) and 416.919p(b)).
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daily living, conducted a physical examination, and diagnosed McAllister.
(R.176). There was simply nothing for the ALJ to clarify or further develop.
In the final analysis, ultimately, McAllister has the burden of proving that
he is disabled. See 20 C.F.R. § 416.912(c). McAllister failed to show how the
record was incomplete and what, if any, information was missing. Moreover,
McAllister failed to show how re-contacting Dr. Hakima or obtaining medical
expert testimony would have aided the ALJ to make an informed decision, and
how the purported failure to develop the record prejudiced him. Therefore, the
substantial evidence supports the ALJ’s RFC determination.
iii. Alleged failure to generate a physical RFC at the initial level
McAllister contends next that “no physical RFC was generated at the initial
level” and that only a “non M.D.” prepared a physical summary of McAllister.
Doc. 7 at 6; (R. 185). While there is no record that McAllister had a physical RFC
assessment, he did have a mental RFC assessment, (R. 200-203), which is
consistent with his alleged complaints resulting from a head injury. Regarding
McAllister’s physical ability, the record contained Dr. Hakima’s physical
examination and summary of McAllister, (R. 176-178), which the ALJ used to
generate McAllister’s RFC, noting that the “claimant has no impairment-related
exertional limitations.” (R. 22). As the ALJ pointed out, although “[s]pinal
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Kyphosis was noted by the consultative examiner[, it] was not found to impose
any functional limitations.” (R. 22). Indeed, Dr. Hakima reported that McAllister
“does his own bathing, dressing, feeding, and grooming,” “does housework,” and
sat comfortably during the exam and had no problems getting on and off of the
exam table. (R. 176 - 177). Moreover, she reported that McAllister could squat
and rise to a standing position without problems and that he could heel-to-toe
walk, had a normal gait, and did not exhibit unsteadiness, shuffling or wobbling.
(R. 177). In other words, nothing in the record suggests that McAllister has any
“impairment-related exertional limitations.” Consequently, the substantial
evidence supports the ALJ’s RFC determination and conclusion that McAllister
had no substantial physical impairments.
iv. Alleged failure to consider Medical Vocational Guidelines - 201.12
McAllister also argues that the ALJ should have determined that he met the
criteria for Medical Vocational Guideline Rule 201.12 under from Appendix 2 to
Subpart P of 20 C.F.R. Part 404, Table No. 1 - Residual Functional Capacity:
Maximum Sustained Work Capability Limited to Sedentary Work as a Result of
Severe Medically Determinable Impairment(s) which would qualify McAllister for
a mandatory finding of disabled. However, this argument is not supported by the
evidence. The Medical–Vocational Guidelines (“grids”) direct a finding in a
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particular social security disability benefits case only when there is an exact fit
between the criteria of the grids and the situation before the ALJ. Perbeck v.
Astrue, 487 F. Supp. 2d 1267, 1272 (D. Kan. 2007). Here, there was nothing in
the ALJ’s opinion or the evidence limiting McAllister to sedentary work. To the
contrary, the ALJ opined that McAllister had “no impairment-related exertional
limitations.” (R. 22). Further, the ALJ determined that McAllister could paint, cut
grass, clean around the house, drive, and walk with no problems. (R. 20-25).
These findings and the medical record belie McAllister’s contention that the ALJ
erred by failing to limit him to sedentary work. In short, because McAllister had
cognitive impairments as a result of his head injury rather than physical
impairments, (R. 22), Medical Vocational Guideline Rule 201.12 under Table No.
1 - Residual Functional Capacity: Maximum Sustained Work Capability Limited
to Sedentary Work as a Result of Severe Medically Determinable Impairment(s),
did not apply to McAllister.
B.

Alleged failure to limit McAllister’s possible jobs to sheltered
workshop or supervised work

Finally, McAllister argues that his RFC dictated a sheltered workshop or
supervised work setting rather than competitive employment. Doc. 7 at 8. As
such, McAllister contends that the vocational expert failed to provide other jobs in
the national economy sufficient to meet the Commissioner’s burden. Generally,
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“[i]n order for a vocational expert’s testimony to constitute substantial evidence,
the ALJ must pose a hypothetical question which comprises all of the claimant’s
impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). The
ALJ, in fact, did so in McAllister’s case. Specifically, the ALJ established a
hypothetical where the individual could “learn and remember simple work
routines with practice, could understand and remember simple instructions, but not
detailed ones” and could “tolerate ordinary work pressures, but should avoid
excessive work loads, quick decision-making, rapid changes and multiple
demands and would benefit from regular rest breaks and a slowed pace, but would
still be able to maintain a workplace consistent with the mental demands of
competitive level work.” (R. 53).
Based on these limitations, when the ALJ asked if there are any occupations
that an individual with the same age, education, and work experience as
McAllister could do, the vocational expert testified “First, as a general comment,
that the limitations described in this exhibit sound more like sheltered workshop
or supervised work than competitive employment.” (R. 54). Nonetheless, the
vocational expert stated that “there are numerous jobs in [that] setting” and that
“the design of all these sheltered jobs are to lead to competitive work.” Id. Then,
using the ALJ’s hypothetical, the vocational expert detailed a significant number
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of jobs that exist in the national economy consistent with the limitations stated,
including fast food worker, cleaner/housekeeper, and sorter. (R. 54-56). To
clarify the vocational expert’s testimony, the ALJ asked, “Now was it your
testimony that an individual with the abilities and limitations set forth in Exhibit
C5-F, page 3 would be able to perform these jobs?” (R. 55). The vocational
expert responded that he “narrowed the total number [] of jobs in the state of
Alabama, so the limited range of jobs that [he] cited, yes, would be” and that
considering McAllister’s limitations, including his “memory being poor” and
inability to endure an “eight-hour-a-day” work schedule, he determined that
McAllister could still work at the “light” and “unskilled” levels, which would be
less than the full range of the competitive jobs. (R. 55-56). Specifically, the
vocational expert stated that the limited range of jobs in Alabama is 4,300 for fast
food workers, 1,400 for cleaners/housekeepers, and 1,200 for sorters, compared
nationally to 250,000, 65,000, and 70,000 available jobs, respectively. (R. 54-55).
Put simply, the ALJ’s hypothetical and the vocational expert’s explanation
reveal that the vocational expert considered the non-exertional limitations at issue,
as well as limitations that “sound[ed]” more like sheltered workshop or supervised
work, and determined that jobs still exist that McAllister could perform. Thus,
pursuant to Wilson, 284 F.3d at 1227, the substantial evidence supports the
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vocational expert’s testimony and the ALJ’s finding that McAllister is not
disabled.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that McAllister is not disabled is supported by substantial evidence, and that the
ALJ applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.

Done the 19th day of September, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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