Webster v. Social Security Administration, Commissioner
MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/2/2013. (AHI)
2013 Jan-02 AM 11:44
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner, Social Security
Civil Action No. CV-12-S-884-S
MEMORANDUM OPINION AND ORDER
Claimant Gregory Webster commenced this action on March 20, 2012, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
thereby denying his claim for a period of disability and disability insurance benefits.
For the reasons stated herein, the court finds that the Commissioner’s ruling is due to
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v. Bowen,
847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ’s residual functional capacity finding was not supported
by substantial evidence, and that the ALJ erred in failing to obtain the opinion of a
medical expert. Upon review of the record, the court concludes that these contentions
are without merit, and the Commissioner’s decision should be affirmed.
Claimant first takes issue with the ALJ’s finding that claimant had
the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) except no more than occasional climbing of
ramps/stairs, stooping or crouching; no crawling, kneeling or climbing
of ladders, ropes or scaffolds; no frequent use of the hands; occasional
use of foot controls; and no exposure to dangerous machinery or
Claimant’s argument consists of only a conclusory assertion that the ALJ’s finding
contains so many restrictions that it “would on its face better comport with sedentary
work at best.”2 As an initial matter, claimant has cited no authority, and this court
knows of none, to support the proposition that a claimant’s inability to perform a full
Doc. no. 8 (claimant’s brief), at 5. That distinction is significant, according to claimant,
because if he were limited to sedentary work, he would be disabled under Medical-Vocational Rule
201.14, which dictates a finding of “not disabled” for an individual closely approaching advanced
age, who has a high school education or more that does not provide for direct entry into skilled
work, whose past work experience is skilled or semiskilled with non-transferable skills, and who is
limited to sedentary work as a result of severe medically determinable impairments. See 20 C.F.R.
Pt. 404, Subpt. P, App. 2, Rule 201.14.
range of work at a given exertional level mandates a finding of disability. Quite to the
contrary, the Commissioner’s regulations specifically provide for the input of a
vocational expert to determine the availability of appropriate jobs in the national
economy when non-exertional limitations prevent a claimant from performing the full
range of work at a particular exertional level. Moreover, the administrative record as
a whole supports the determination that claimant is capable of performing a limited
range of light work, as determined by the ALJ.
The court also is not persuaded by claimant’s second argument, that the ALJ
failed to fully develop the record because he did not obtain the opinion of a medical
expert during the administrative proceedings. First, claimant asserts that the ALJ
should have sought the testimony of a medical expert (“ME”) during the
administrative hearing, pursuant to Social Security Ruling 83-20. The primary
purpose of that Ruling is to discuss the proper procedures for determining the date of
onset of a claimant’s disability. In that context, the Ruling includes the following
Medical reports containing descriptions of examinations or
treatment of the individual are basic to the determination of the onset of
disability. The medical evidence serves as the primary element in the
onset determination. Reports from all medical sources (e.g., physicians,
hospitals, and government agencies) which bear upon the onset date
should be obtained to assist in determining when the impairment(s)
With slowly progressive impairments, it is sometimes impossible
to obtain medical evidence establishing the precise date an impairment
became disabling. Determining the proper onset date is particularly
difficult, when for example, the alleged onset and the date last worked
are far in the past and adequate medical records are not available. In
such cases, it will be necessary to infer the onset date from the medical
and other evidence that describe the history and symptomatology of the
SSR 83-20 (emphasis supplied). Later, the Ruling provides the following guidance
for determining an onset date when precise evidence of the date is not available and
the need to make inferences arises:
In some cases, it may be possible, based on the medical evidence,
to reasonably infer that the onset of a disabling impairment(s) occurred
some time prior to the date of the first recorded medical examination,
e.g., the date the claimant stopped working. How long the disease may
be determined to have existed at a disabling level of severity depends on
an informed judgment of the facts in the particular case. This judgment,
however, must have a legitimate medical basis. At the hearing, the
administrative law judge (ALJ) should call on the services of a medical
advisor when onset must be inferred. If there is information in the file
indicating that additional medical evidence concerning onset is
available, such evidence should be secured before inferences are made.
If reasonable inferences about the progression of the impairment
cannot be made on the basis of the evidence in [the] file and additional
relevant medical evidence is not available, it may be necessary to explore
other sources of documentation. Information may be obtained from
family members, friends, and former employers to ascertain why medical
evidence is not available for the pertinent period and to furnish
additional evidence regarding the course of the individual’s condition.
However, before contacting these people the claimant’s permission must
be obtained. The impact of lay evidence on the decision of onset will be
limited to the degree it is not contrary to the medical evidence of record.
(In mental impairment cases, see SSR 83-15, PPS-96, Titles II and XVI,
Evaluation of Chronic Mental Impairments.)
The available medical evidence should be considered in view of
the nature of the impairment (i.e., what medical presumptions can
reasonably be made about the course of the condition). The onset date
should be set on the date when it is most reasonable to conclude from the
evidence that the impairment was sufficiently severe to prevent the
individual from engaging in SGA [substantially gainful activity] (or
gainful activity) for a continuous period of at least 12 months or result
in death. Convincing rationale must be given for the date selected.
SSR 83-20 (emphasis and alterations supplied).
Claimant first asserts that the ALJ “could have” utilized a medical expert under
this Ruling.3 Setting aside the lack of force contained in that statement — there are
presumably unlimited things the ALJ could have done, and most of them would have
no effect on whether his decision was supported by substantial evidence and in
accordance with applicable legal standards — claimant’s argument is of little
relevance, because claimant has not challenged the ALJ’s determination of her onset
Claimant also asserts, outside the context of SSR 83-20, that the ALJ failed to
properly develop the record because “there is not even a reviewing medical consultant
opinion in the record.”4 Claimant cites 20 C.F.R. § 404.1529(b), which states, in
pertinent part, that, “[a]t the administrative law judge hearing or Appeals Council
level, the administrative law judge or Appeals Council may ask for and consider the
Tr. 6 (emphasis supplied).
Doc. no. 8 (claimant’s brief), at 8.
opinion of a medical advisor concerning whether your impairment(s) could reasonably
be expected to produce your alleged symptoms” (emphasis supplied). Importantly,
that regulation is stated in precatory, not mandatory terms: the ALJ is not required
to use a medical advisor in evaluating the extent of claimant’s impairments.
That interpretation of the regulation is consistent with the ALJ’s general duties
in evaluating the medical evidence of record. The ALJ
has an obligation to develop a full and fair record, even if the claimant
is represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735 (11th
Cir. 1981). The ALJ is not required to seek additional independent
expert medical testimony before making a disability determination if the
record is sufficient and additional expert testimony is not necessary for
an informed decision. Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir.
1999) (holding the record, which included the opinion of several
physicians, was sufficient for the ALJ to arrive at a decision); Holladay
v. Bowen, 848 F.2d 1206, 1209-10 (11th Cir. 1988) (holding the ALJ
must order a consultative exam when it is necessary for an informed
Nation v. Barnhart, 153 F. App’x. 597, 598 (11th Cir. 2005) (emphasis supplied).
Furthermore, claimant bears the ultimate burden of producing evidence to support her
disability claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing
20 C.F.R. §§ 416.912(a), (c)).
The court concludes that the record in this case was sufficient to give
substantial support to the ALJ’s decision. As an initial matter, claimant was incorrect
when he stated that there are no opinions from medical consultants in the record.
Claimant was evaluated on November 30, 2005 — several months after his alleged
onset date of August 23, 2005 — by Dr. Bruce Romeo. Claimant only complained to
Dr. Romeo of a recent seizure and headaches. He was independent in activities of
daily living, and he had no subjective complaints of a musculoskeletal nature. The
joint examination revealed no deformity, tenderness, synovitis, effusion, clubbing,
cyanosis, edema, or varicosities. There also was no back spasm or deformity. His gait
was normal, with no assistive device required. He could fully stoop, kneel, crouch,
tandem walk, and heel-toe walk. His motor function, sensory reflexes, grip strength,
manual dexterity, and gross manipulation were fully intact. He had full range of
motion in all joints and extremities.5 On a Medical Source Opinion Form, Dr. Romeo
indicated that claimant had no limitation on his ability to stand, walk, or sit. He could
constantly lift and/or carry 20 pounds, frequently lift and/or carry 40 pounds, and
occasionally lift and/or carry 60 pounds. The only other limitations assessed by Dr.
Romeo were never working in high exposed places, driving automotive equipment,
or operating heavy machinery.6
Claimant also was evaluated by Dr. Wiley Livingston on August 4, 2009. Dr.
Livingston found normal range of motion in all joints and extremities, except for a
slight reduction in left external rotation. Claimant also had normal dexterity and grip
strength. He could raise his arms over his head and make a fist with each hand. His
gait and heel-to-toe walk were normal. He could stand on his toes and heels, bend
forward to touch the floor, and squat and rise. Dr. Livingston stated that there was
“little in the way of physical examination to account for [claimant’s] complaints of
joint pain.” Dr. Livingston detected no lumbar compression fracture, destructive
lesion, or spondylolisthesis; only mild facet arthropathy at L5-S1 and L4-L5; and mild
degenerative discopathy at T11-T12.7
The reports of these two consultative examiners, along with the reports and
treatment records of claimant’s treating physicians in the record, constituted ample
support for the ALJ’s administrative decision. There was no need for the ALJ to order
an additional consultative examination or obtain any additional opinion from a
Based on the foregoing, the court concludes the ALJ’s decision was based upon
substantial evidence and in accordance with applicable legal standards. Accordingly,
the decision of the Commissioner is AFFIRMED. Costs are taxed against claimant.
The Clerk is directed to close this file.
DONE this 2nd day of January, 2013.
United States District Judge
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