Ray v. Social Security Administration, Commissioner
REVISED MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/27/13. (SAC )
2013 Sep-27 PM 01:37
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BARRY EARL RAY,
MICHAEL J. ASTRUE,
Civil Action No.: 2:12-CV-00191-KOB
REVISED MEMORANDUM OPINION
On August 31, 2009, the claimant, Barry Earl Ray, applied for supplemental security
income under Title XVI of the Social Security Act. The claimant alleges disability commencing
on May 24, 2009 because of beck and neck pain. The Commissioner denied the claim both
initially and on reconsideration. The claimant filed a timely request for a hearing before an
Administrative Law Judge, and the ALJ held a hearing on January 31, 2011. (R. 19, 21). In a
decision dated May 12, 2011, the ALJ found that the claimant was not disabled as defined by the
Social Security Act and, thus, was ineligible for supplemental security income. (R. 25). On
November 23, 2011, the Appeals Council denied the claimant’s request for review;
consequently, the ALJ’s decision became the final decision of the Commissioner of the Social
Security Administration. (R. 4). 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 affirms the decision of the Commissioner.
II. ISSUES PRESENTED
The claimant presents three issues for review: (1) whether the ALJ made a factually
inconsistent residual functional capacity (“RFC”) finding, (2) whether the ALJ adequately
considered the evidence of record, and (3) whether the ALJ properly developed the 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. 1987).
“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. This court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971).
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 may not
look only to those parts of the record that support the decision of the ALJ, but instead 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 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), 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 process:
(1) Is the person presently unemployed?
(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, Subpt. P, App. 1?
(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); See 20 C.F.R. §§ 404.1520, 416.920.
In determining a claimant’s RFC the ALJ should consider “all the ‘relevant medical and
other evidence.’” Siverio v. Comm'r of Soc. Sec., 461 F. App'x 869, 871 (11th Cir. 2012)
(quoting 20 C.F.R. § 404.1545(a)(3)). However, the ALJ need not “specifically refer to every
piece of evidence in his decision.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005).
In evaluating pain and other subjective complaints, the Commissioner must first consider
whether the claimant demonstrated an underlying medical condition, and then “either (2)
objective medical evidence that confirms the severity of the alleged pain arising from that
condition or (3) that the objectively determined medical condition is of such a severity that it can
be reasonable expected to give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991) (emphasis added); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002); 20 C.F.R. § 404.1529.
While the burden rests with the claimant to prove a disability, the ALJ has a duty to
develop a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); 20
C.F.R. § 416.912(c). This duty may include ordering a consultative evaluation. Holladay v.
Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988) (internal citations omitted). However, the duty
does not include “order[ing] a consultative examination [when] 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 1253, 1269 (11th Cir. 2007).
The claimant has a G.E.D. and was fifty-three years old at the time of the administrative
hearing. (R. 66). His past work experience includes employment as a trash collector. The
claimant alleged he has been unable to work because of back and neck pain since May 24, 2009.
He claimed that injuries from a car accident in his personal vehicle on that day cause his back
and neck pain. (R. 24, 107-08).
Four days after the car accident, the claimant reported visiting the UAB Bessemer
emergency room and, on the same date, a chiropractor, Dr. Gerald J. Collins. The claimant
reported receiving medication and physical therapy, respectively.
The Social Security
Administration was unsuccessful in obtaining records from either source. (R. 131-132, 184).
On November 7, 2009, Dr. Sharman Sanders conducted a consultative examination on
the claimant. Dr. Sanders noted that the claimant made multiple sudden movements, moved his
neck in between “form exams,” bent over to put on his shoes and socks and easily got on and off
the exam table. Further, Dr. Sanders stated that the claimant appeared intoxicated with slurred
speech. The claimant admitted to Dr. Sanders he had four beers before the examination. (R.
193-195). Dr. Sanders reported that the claimant’s motor strength in his “[b]ilateral deltoid and
iliopsoas was a 3/5 … Otherwise he is a 5/5 throughout.” The claimant had “normal muscle bulk
and tone.” Before Dr. Sanders could finish testing his strength, however, the claimant became
uncooperative and ended the examination. (R. 196).
On December 17, 2009, Dr. Robert G. Macgregor, treated the claimant for a seizure he
suffered a month prior while drinking with friends. Dr. Macgregor scheduled a brain and spine
MRI and started a trial of Flexeril. (R. 246).
On February 11, 2010, the claimant returned to Dr. Macgregor complaining of knee pain
and swelling. Dr. Macgregor reported that the NCS/EMG indicated the claimant suffered from
C8 radiculopathy and that the claimant’s EEG was normal. He also stated the claimant had
normal bulk and tone and “strength limited by pain in L deltoid, bicep. Otherwise he is 5/5.”
For the seizures, he prescribed no medication but did counsel the claimant about alcohol abuse.
He also ordered a second MRI, continued the Flexeril medication and suggested trying
Neurontin. (R. 231).
On March 10, 2010, the claimant saw Dr. Thomas Stewart Huddle for routine medical
treatment and an MRI with Dr. Siddhartha Gaddamanugu. At the appointment, the claimant
reported suffering whiplash from a second car accident five days prior. The accident occurred in
his driveway while he and a friend were drinking in the car. The claimant did not visit the
emergency room after this accident; instead, the claimant took Aleve and Flexeril “with some
(R. 225-226). The MRI demonstrated lower cervical spondylosis and mild canal
It is not clear whether the “1-2 beers/day” or morning beer before his appointment contributed to the claimant’s
relief. (R. 225).
narrowing. (R. 278-279). Dr. Huddle had the claimant continue the Flexeril and prescribed
sixty mg of Motrin every eight hours for two weeks. (R. 225-226). Further, Dr. Huddle made an
out-patient request for physical therapy. (R. 261-262).
The ALJ Hearing
After the Commissioner denied the claimant’s request for supplemental security income,
the claimant requested and received a hearing before the ALJ. (R. 64).
The claimant testified that when walking ten to fifteen feet or more than half a block, he
experiences numbness in his right arm and leg. (R. 69-70). He testified that this numbness was
not painful. However, he clarified that the pain further limited his physical abilities because he
would “catch a grabbing pain” if he rotated his neck. (R. 71). He testified that the pain and
numbness would prevent him from holding a gallon of milk (R. 70), holding a railing (R. 81), or
washing the dishes without breaks. (R. 79). But he testified that the numbness and pain did not
prevent him from getting dressed (R. 71), but did stop him from bending over or squatting down
(R. 73). He also testified that the plain required him to wear a back and neck brace. (R. 77). He
further testified that the pain can reach a level of nine on a scale of one to ten. (R. 79).
The claimant testified that seeing a chiropractor did not help with the pain. He was
unsure of exactly what medicine he was taking, but he stated that they “kind of help.” The
medication did, however, also make him sleepy. He also testified that the medication “lasts a
while” but that the pain is still there when he wakes up. (R. 72).
A vocational expert, Dr. Kessler, testified concerning the type and availability of jobs
that the claimant was able to perform. (R. 82-85). He classified the claimant’s previous work
experience as a trash or garbage collector as unskilled and very heavy. When the ALJ asked him
whether a hypothetical individual limited to light work could work as a trash collector, Dr.
Kessler responded that such an individual could not.
Specifically, the ALJ
hypothesized about an individual “limited to light work, provided there’s no climbing or ladders,
ropes, or scaffolds,” and no frequent stooping or kneeling.
The ALJ further limited the
individual to “moderate limits in exposure to unprotected heights.” The ALJ then asked what
jobs, if any, would such an individual with an age range of 52-53 and a 12th grade education be
able to perform. Dr. Kessler responded that such an individual could perform the jobs of
“machine operator or tender,” DOT 920.685-022, and of “assemblers and production workers,”
DOT 706.684-022. (R. 83).
The ALJ’s Decision
On May 12, 2011, the ALJ issued a decision finding the claimant was not disabled under
the Social Security Act. (R. 25). First, the ALJ found that the claimant had not engaged in
substantial gainful activity since the alleged onset of his disability. Next, the ALJ found that the
claimant’s back and neck pain qualified as a severe impairment; however, it did not manifest the
specific signs and diagnostic findings required by the Listing of Impairments. (R. 21).
The ALJ then considered the claimant’s subjective allegations of pain to determine his
residual function capacity. The ALJ concluded that “the claimant’s medically determinable
impairment could reasonably be expected to cause the alleged symptoms,” but that the “the
claimant’s statements concerning the intensity, persistence and limiting effects of this symptoms
are not credible.” (R. 22-23).
To support his conclusion, the ALJ first referenced Dr. Sanders’ consultative
examination. The ALJ found that this exam hurt the claimant’s credibility because his report
conflicts with several of the claimant’s statements. The ALJ found that, despite the claimant’s
assertion that he always wears a back brace, he was not wearing one at the time of the
examination. Next, the ALJ found that, despite the claimant’s alleged inability to move his neck,
he was “bending his chin all the way down to his chest and moving his neck around without any
apparent problems.” The ALJ also noted that, again, despite the claimant’s assertion that he was
unable to bend over, Dr. Sanders observed the claimant “reach down, bend over [to the floor],
and retrieve his shoes and socks, without any evidence of pain.” Further, the ALJ stated that Dr.
Sanders “believes the claimant’s motor strength is 5/5.” (R. 23).
The ALJ then discusses the consistency of Dr. Sanders’ assessment with the other
medical evidence on record. He noted that the “MRI findings were generally unremarkable.”
He relied on Dr. Gaddamanugu’s assessment “that claimant’s spinal X-rays of cervical and
thoracic were normal.” He also noted that the head CT scan “showed no evidence for acute
intracranial pathology” and that the claimant’s “EEG was normal.” Id.
Thus, the ALJ found that the claimant could “perform light work, except that claimant
can never climb ladders, ropes, or scaffolds, can only frequently crouch, stoop and kneel, and
can frequently be exposed to unprotected heights.” (R. 22). The ALJ, in making the RFC
finding, gave the greatest weight to Dr. Sanders but also gave significant weight to the other
medical evaluations. He further stated that the other evaluations were “consistent with the total
medical evidence.” (R. 24).
Next, the ALJ determined that the claimant was unable to perform any past relevant
work. However, relying on the testimony from the vocational expert, he found that the claimant
could perform jobs that exist in significant number in the national economy.
Specifically, he found that the claimant could perform the jobs of machine tender and of
assembler production. Based on these findings, the ALJ concluded that the claimant is not
disabled under the Social Security Act. (R. 25).
After careful review, the court concludes that the ALJ applied the correct legal standards
and substantial evidence supports his decision. The court addresses the claimant’s arguments
Factual Inconsistency in the ALJ’s RFC Finding
The claimant first argues the ALJ committed error by finding the claimant could not
climb ladders, ropes or scaffolds, yet could frequently be exposed to unprotected heights. The
claimant contends these findings are mutually exclusive because there is “no provision for the
claimant to get up or down from the heights he can purportedly work … or for the type of
platform this individual is to work on with protection if not some type of scaffold.” (PL.’s Mem.
5-6). However, even if the court accepts this argument, this inconsistency would be a harmless
When the ALJ found that the claimant could perform jobs in the national economy, he
relied on the Vocational Expert’s testimony at the Oral Hearing. (R. 24-25). The ALJ asked the
Vocational Expert about professions with “moderate limits in exposure to unprotected heights.”
(R. 83). However, the Vocational Expert answered with occupations, machine operator and
assembler, that do not include any exposure to unprotected heights. Id.; see DOT Listing No.
920.685-022 available at DICOT § 920.685-022; see DOT Listing No. 706.684-022 available at
DICOT § 706.684-022. Thus, any error regarding the claimant’s ability or inability to work at
unprotected heights is harmless. See Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No
principle of administrative law or common sense requires us to remand a case in quest of a
perfect opinion unless there is reason to believe that the remand might lead to a different
Consideration of the Record
Next, the claimant argues that, in his determining his RFC, the ALJ did not adequately
consider the entire record and over relied on Dr. Sanders’ consultative examination.
Specifically, the claimant contends that the ALJ erred by failing to cite to any medical evidence
after November 2009. The claimant further argues that the ALJ based his RFC finding solely on
Dr. Sanders’ consultative examination, ignoring other medical evidence and testimony. To the
contrary, the court finds the ALJ properly considered the medical evidence on record and
discredited the claimant’s testimony.
“The ALJ makes an RFC finding based on all the ‘relevant medical and other
evidence.’” Siverio v. Comm'r of Soc. Sec., 461 F. App'x 869, 871 (11th Cir. 2012) (quoting 20
C.F.R. § 404.1545(a)(3)). However, “there is no rigid requirement that the ALJ specifically refer
to every piece of evidence in his decision.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.
2005). The ALJ’s findings only must indicate the ALJ “considered [the claimant’s] medical
condition as a whole.” Id. (internal quotation marks omitted) (quoting Foote v. Chater, 67 F.3d
1553, 158 (11th Cir. 1995)).
The claimant’s contention that the ALJ did not consider any medical evidence after
November 2009 lacks merit. The ALJ explicitly referenced Dr. Huddle’s treatment of the
claimant in March of 2010. He specifically cited the 2010 MRI and referenced the interpreting
He noted that Dr. Gaddamanagu “opined that no thoracic spine fracture or
subluxation identified.” (R. 23). The claimant highlights the omission of his March 4, 2010 car
accident and resulting whiplash, continued back and neck pain, and treated radiculopathy (Pl.’s
Mem. 7-8); however, the ALJ did find that the claimant suffered back and neck pain caused by
“underlying medically determinable … impairment(s).” (R. 21-22); see Holt, 921 F.2d at 1223.
The issue is not whether the claimant has back and neck pain caused by an underlying medical
condition; the issue is the extent and the severity of the pain. Here, the claimant does not point
to any medical evidence or any treating physician’s opinion, and the court finds none in the
record, that conflict with the ALJ’s determination of the extent or severity of the claimant’s pain
or his overall RFC assessment.2 Thus, the ALJ adequately considered the “relevant medical …
evidence” in making his RFC determination. See Siverio, 461 F. App'x at 871.
When a claimant attempts to establish disability through his testimony of pain or other
subjective symptoms, the three-part pain standard applies. Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991). To meet the pain standard, a claimant must demonstrate “(1) evidence of an
underlying medical condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the objectively determined
medical condition is of such a severity that it can be reasonable expected to give rise to the
alleged pain.” Id. (emphasis added). A claimant’s subjective testimony supported by medical
evidence that satisfies the pain standard is sufficient to support a finding of disability. Foote v.
Charter, 67 F.3d 1553, 1561 (11th Cir. 1995).
The ALJ may discredit a claimant’s subjective testimony of pain if he does so
specifically and articulates his reasons for doing so. Brown v. Sullivan, 921 F.2d 1233, 1236
(11th Cir. 1991). Failure to articulate adequate reasons for discrediting the claimant’s subjective
complaints of pain requires that the testimony be accepted as true. Id. However, “[a] clearly
articulated credibility finding with substantial supporting evidence in the record will not be
disturbed by a reviewing court.” Foote, 67 F.3d at 1562 (other citations omitted).
In fact, Dr. Macgregor’s opinion of the claimant’s motor strength, omitted from the ALJ’s decision, mirrors Dr.
Sanders’ opinion. (R. 231).
The ALJ explicitly articulated his reasons for discrediting the claimant’s alleged severity
and limiting effect of his pain. When discrediting the claimant’s testimony, the ALJ specifically
noted numerous inconsistencies in the claimant’s previous statements. For example, despite the
claimant’s stated inability to “even bend over,” the ALJ “observed him bend over at the
hearing.” The claimant claimed “he wears a brace all the time,” yet did not wear one to his
medical evaluation with Dr. Sanders. (R. 22). The ALJ cited Dr. Sanders’ statement that the
claimant made several sudden movements, rotated his neck and bent over to pick up his shoes
and socks. The ALJ also noted Dr. Sanders’ observation that the claimant only seemed to have
trouble moving during specific portions of the exam. (R. 23). And, as discussed above, the
other medical records and opinions do not contradict Dr. Sanders’ or the ALJ’s assessment.
Thus, the ALJ’s discrediting of the claimant’s testimony was supported by substantial evidence,
and the court will not second guess the ALJ’s credibility determination. See Foote, 67 F.3d at
Development of the Record.
Finally, the claimant argues the ALJ should have ordered a second consultative medical
examination pursuant to 20 C.F.R. 416.919(a) or considered a medical expert opinion pursuant
to 20 C.F.R. 416.929(b). According to the claimant, this omission amounts to a breach of the
ALJ’s duty to develop the record. For reasons discussed below, the court concludes that the ALJ
was not required to obtain a consultative examination or medical expert opinion.
As the claimant notes, the ALJ has a duty to develop a full and fair record. Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Cowart v. Schweiker, 662 F.2d 731, 735 (11th
Cir. 1981). Nevertheless, the burden remains with the claimant to prove that he is disabled and
to produce medical evidence supporting his claim. 20 C.F.R. § 416.912(c); Ellison, 355 F.3d at
1276. The ALJ’s duty to develop the record encompasses an obligation to order a consultative
evaluation when one is needed to make an informed decision. Holladay v. Bowen, 848 F.2d
1206, 1209 (11th Cir. 1988) (citing Reeves v. Heckler, 734 F.2d 519, n.1 (11th Cir. 1984)).
However, the ALJ 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 1253, 1269 (11th Cir. 2007). Normally, a
consultative examination is only required when “necessary information is not in the record and
cannot be obtained from the claimant’s treating medical sources or other medical sources.”
Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001) (citing 20 C.F.R. § 404.1519a).
In this case, the record held sufficient evidence for the ALJ to determine the claimant’s
RFC without ordering a consultative evaluation.
The record documents evidence of the
claimant’s underlying medical condition through lab tests (R. 253-260), a psychiatric review (R.
199-212), MRI results (R. 273-282), and multiple medical progress reports from multiple
physicians (R. 213-252). Further, the claimant testified as to the disabling nature of his back and
neck pain and already had a consultative examination with Dr. Sanders. (R. 62-85, 192-196).
Unfortunately, during the examination Dr. Sanders was “unable to evaluate the full severity of
the problem” caused by the claimant’s lack of cooperation. (R. 196). While a completed
examination would give a greater degree of certainty as to the severity of the claimant’s
symptoms, “the statute does not require absolute certainty; it requires only substantial evidence
to sustain the [Commissioner’s] findings.”
Holladay, 848 F.2d at 1210.
examination and the record documents provided substantial evidence to support the ALJ’s
findings, and a second consultative examination was not necessary for the ALJ to make an RFC
Further, the ALJ did not err by failing to ask for a medical expert opinion to support his
RFC findings. Determining the claimant’s RFC is not a medical assessment. Langley v. Astrue,
777 F. Supp. 2d 1250, 1261 (N.D. Ala. 2011). Thus, the ALJ is not required to rely on an expert
medical opinion in making the RFC assessment. Id. Substantial evidence in the record supports
the ALJ’s RFC assessment.
For the reasons stated above, this court concludes that the decision of the Commissioner
is supported by substantial evidence and is to be AFFIRMED. The court will enter a separate
order to that effect simultaneously.
DONE and ORDERED this 27th day of September 2013.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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