Stewart v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/24/13. (SAC )
2013 Sep-24 PM 01:40
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
CIVIL ACTION NO.
On January 13, 2010, the claimant, Larry Stewart, protectively filed for a period of disability
and disability insurance benefits under Title II and supplemental security income under Title XVI
of the Social Security Act. (R. 11). He alleged disability beginning on June 27, 2009 arising from
a stroke, hypertension, diabetes mellitus, facial paralysis, obesity, and sleep apnea. (R. 13). The
Commissioner denied the claims initially on February 26, 2010. The claimant timely filed a written
request for a hearing before an Administrative Law Judge, and the ALJ held a video hearing on
March 29, 2011. (R. 11). In an opinion dated April 5, 2011, the ALJ found that the claimant was not
disabled under Sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act, and, therefore,
was ineligible for a period of disability and disability insurance benefits, as well as supplemental
income. (R. 19). The Appeals Council subsequently denied the claimant’s request for review on
January 27, 2012, and the ALJ’s decision became the final decision of the Commissioner of the
Social Security Administration. (R. 1). As the claimant has exhausted his administrative remedies,
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 the following issues for review: (1) whether substantial evidence
supports the ALJ’s residual functional capacity (RFC) determination that the claimant could perform
light work limited to occasional handling with the left dominant arm; (2) whether the ALJ fully
developed the record despite not obtaining a Medical Source Opinion before making findings
regarding the claimant’s RFC; and (3) whether the “great weight” the ALJ gave to a non-examining
single decision maker’s opinion constitutes a harmless error.
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
substantial evidence supports his conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d
1420 (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. But 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).
This 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 must look not only
to those parts of the record that support the decision of the ALJ, but also must view the record in its
entirety and take into account evidence that detracts from the evidence on which the ALJ relied.
Hillsman v. Bowen, 804 F.2d 1179, 1180 (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:
Is the claimant presently unemployed?
Is the claimant’s impairment severe?
Does the claimant’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
Is the claimant unable to perform his or her former occupation?
Is the claimant unable to perform any other work within the national
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); 20 C.F.R. §§ 404.1520, 416.920.
The ALJ reviews medical and other evidence to determine the claimant’s RFC to do work
despite his impairment. 20 C.F.R. §§ 404.1520(e) and 416.920(e); see also Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997). Once the ALJ finds that a claimant cannot return to prior work,
the burden of proof shifts to the Commissioner to show other work the claimant can perform. Gibson
v. Heckler, 762 F.2d 1516 (11th Cir. 1985). The Commissioner must establish that the claimant,
who could not perform past relevant work, could perform other work available in the national
economy. Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). “The preferred method of
demonstrating that the claimant can perform specific work is through the testimony of a vocational
expert.” MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986). “The burden of showing by
substantial evidence that a person who can no longer perform his former job can engage in other
substantial gainful activity is in almost all cases satisfied only through the use of vocational expert
testimony.” Chester v. Bowen, 792 F.2d 129, 132 (11th Cir. 1986).
Additionally, the ALJ has a basic obligation to develop a full and fair record. Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Graham, 129 F.3d at 1422. Developing a full and
fair record “may not require use of expert-testimony.” Welch v. Bowen, 854 F.2d 436, 440 (11th Cir.
1988). “The failure to include [an RFC assessment from a medical source] at the State agency level
does not render the ALJ’s RFC assessment invalid.” Langley v. Astrue, 777 F. Supp.2d 1250, 1261
(N.D. Ala.2011). Furthermore, “the ALJ’s duty to develop the record [does not] take away the
claimant’s burden of proving he is disabled.” Ellison, 355 F.3d at 1276. A full and fair record
ensures that the ALJ has fulfilled his duty to explore the relevant facts and enables the reviewing
court to “determine whether the ultimate decision on the merits is rational and supported by
substantial evidence.” Id.
The ALJ must state with particularity the weight given to different medical opinions. Failure
to do so is a reversible error. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987); see also
MacGregor, 786 F.2d at 1053. The Commissioner's policy is that, on appeal, the opinion of a nonexamining state agency single decision maker is entitled to no weight. See Program Operations
Manual System DI 24510.05, 2001 WL 1933365; see also 20 C.F.R. 404.1513. “When, however,
an incorrect application of the regulations results in harmless error because the correct application
would not contradict the ALJ’s findings, the ALJ’s decision will stand.” Caldwell v. Barnhart, 261
Fed. Appx. 188, 190 (11th Cir. 2008).
The claimant completed the eleventh grade and was forty-eight years old at the time of the
administrative hearing. (R. 34-35). The claimant has past work experience as a warehouse laborer,
forklift operator, and yard worker. (R. 18). The claimant alleged disability from a stroke,
hypertension, diabetes mellitus, facial paralysis, obesity, and sleep apnea beginning on June 27,
2009. (R. 13).
On May 2, 2007, the claimant visited Birmingham Healthcare in Birmingham, AL. Dr.
Simona Dunlap, the examining physician, diagnosed the claimant with hypertension, obesity, and
possible sleep apnea. Dr. Dunlap prescribed Enalapril and HCTZ, and at a follow-up appointment
on May 9, 2007, Dr. Dunlap added Atenolol to the claimant’s hypertension medications and Flonase
for the claimant’s sleep apnea. (R. 307-309). On August 28, 2007, Dr. Dunlap noted that the
claimant’s hypertension was under “better control but not optimal.” (R. 302). The claimant’s blood
pressure was 142/91.
On June 27, 2009, the claimant visited Trinity Medical Center Emergency Room in
Birmingham, Alabama, complaining of a stroke on the left side. (R. 239). Two days before his
emergency room visit, the claimant alleged that he fell for uncertain reasons and subsequently
noticed left facial numbness and facial weakness, a facial droop, a little drooling, and some blurring
of vision in his left eye. (R. 235, 240). The claimant stated that his symptoms were of mild severity
and denied having any pain. (R. 240, 246). Denise Edge, an RN, documented that the claimant could
ambulate independently and could perform all activities of daily living without assistance. (R. 246).
A CT scan showed right parieta ishemia. An MRI of the brain without contrast showed extensive
leukomalacia. His transesophageal echo report showed estimated left ventricular ejection fraction
of 50% to 55% and normal right ventricular size and function. (R. 235).
On June 30, 2009, Dr. Rodney K. Swillie, the attending physician, diagnosed the claimant
with left-sided Bell’s palsy, hypertension, and diabetes. (R. 235). Dr. Swillie prescribed the patient
Aspirin; Famvir; Monopril; Hydralazine; Hydrochlorothiazide; and Metformin. Dr. Swillie also told
the claimant to discontinue using Prednisone because of his high blood sugar levels and to cover his
left eye with a patch because of his inability to close his left eye secondary to Bell’s palsy. (R. 236).
On August 25, 2009, the claimant visited Birmingham Health Care for a follow-up visit. Dr.
Dunlap, the treating physician, stated that the claimant’s diabetes mellitus was under “good control.”
Dr. Dunlap also added a new medication for the claimant’s hypertension. The claimant’s blood
pressure was 163/99. (R. 297).
On August 26, 2009, the claimant returned to Trinity Medical Center for a follow-up from
the hospital stay. The claimant’s blood pressure was 158/90. Dr. Swillie noted upon physical
examination that the claimant had left peripheral nerve palsy, with some mild hyperreflexia
throughout. Dr. Swillie diagnosed the claimant with facial paralysis on the left, thought to be
cryptogenic Bell’s palsy and microvascular cerebrovascular disease, and started him on Pravochol.
On January 13, 2010, the claimant protectively applied for disability insurance benefits and
supplemental security income. The claimant alleged he was disabled from a stroke, hypertension,
diabetes mellitus, facial paralysis, obesity, and sleep apnea, and identified his onset date as June 27,
2009. (R. 52).
On February 10, 2010, Jennifer B. Davis, a non-examining state agency single decision
maker, noted the claimant’s activities of daily living (ADLs). In particular, the claimant alleged that
he cooks daily, does light housework, is weak on the left side, and unable to stand for a long time.
Also, the claimant alleged difficulty lifting, standing, reaching, walking, sitting, kneeling, stair
climbing and seeing. Dr. Davis determined that the claimant’s medically determinable impairments
could reasonably be expected to produce some stated symptoms and limitations. However, she
determined that the claimant’s statements about his symptoms and functional limitations were only
partially credible because the medical evidence of record in his file did not support the level of
severity of the above stated symptoms. Also, she noted that the Social Security Administration field
office made no face-to-face observations; that the functional limitations described in the claimant’s
ADLs were not consistent throughout the folder; and that the claimant alleged weakness but did not
use an assistive device for ambulation. (R. 331).
On December 16, 2010, the claimant visited Birmingham Health Care for a blood pressure
check up. The claimant had not taken his blood pressure or diabetes medications for four to five
months. He complained of headaches, but had no other complaints. The claimant reported that his
blood sugars were doing well; before meals blood sugars were 90-100. The claimant’s blood
pressure was 184/119. Dr. Merri D. Ellison, the examining physician, diagnosed the claimant with
high blood pressure, diabetes mellitus, and hyperlipidemia. (R. 333-335).
The ALJ Hearing
On February 26, 2010, the Commissioner determined that the claimant was not disabled and
denied the claimant’s application for disability insurance benefits and supplemental security income.
(R. 9). The claimant timely filed a written request for a hearing before an Administrative Law Judge,
and the ALJ held a video hearing on March 29, 2011. The claimant, his attorney Darryl Hunt, and
a vocational expert, Mary Kessler, attended the hearing in Birmingham, Alabama, with the ALJ
presided from St. Louis, MO. (R. 11, 32).
The claimant testified that he had many health problems preventing him from working
including high blood pressure; diabetes; weakness and numbness on his left side, mostly in his
shoulder, neck, arm, and face; and fatigue. (R. 34-36). The claimant alleged that he had trouble
“gripping...and can’t hold as tight as [he] used to with [his] left hand” because of the numbness on
his left side. (R. 36-37). But, he acknowledged that the numbness in his face, neck, and arms had
improved since his Bell’s palsy first occurred. (R. 44). He further testified that he cannot pick up
more than ten pounds with his dominant left hand, but his right hand is fully functional. (R. 36-37).
The claimant stated that his high blood pressure gives him headaches and his medications
make him dizzy and sleepy. He said the headaches occur three to four times a week and last a couple
of hours each time. The claimant admitted that aspirin works to treat the headaches, but stated that
he usually has to lie down until the headache subsides. (R. 37).
The claimant then testified about his fatigue, and admitted that no doctor had diagnosed the
source of his fatigue. The claimant stated that he has to lie down at least once or twice a day for
about two, sometimes four, hours. He also stated that he can only stand for five to ten minutes “at
the most;” he cannot sit longer than thirty minutes; and he can only walk about a block. (R. 38).
Regarding his sleep apnea, the claimant stated that he wakes up at least two or three times
from snoring heavily. He further claimed that he loses his breath and actually stops breathing during
sleep. The ALJ asked if any objective medical evidence exists confirming sleep apnea, and the
claimant’s attorney admitted that the medical record contains nothing except a reference to “possible
sleep apnea” in Exhibit 3F. (R. 43). Regarding his diabetes, the claimant stated that he does not
notice any symptoms related to diabetes except that he has to wake up and use the bathroom
frequently. (R. 39).
The claimant stated that when he is not lying down, his daily activities include sitting on his
porch or in his room or performing light chores like cleaning his room and cleaning the kitchen. He
stated that he tries to do yard work, but he gets fatigued too quickly and his medications require him
to avoid sunlight. (R. 39).
Next, the claimant testified that he stopped taking his blood pressure and diabetes medication
for four to five months in December 2010 because he could not afford his medications. (R. 41). He
also stated that he has no source of income, but he now gets discount prescriptions for about forty
dollars a month and “scrape[s] up” the money the best he can. (R. 41, 44). He admitted that when
he resumed taking his medications that his headaches eased and that his medications “keep [him]
better.” (R. 41-42).
The claimant testified that he was employed at Mack Management, a temp service, where he
performed mostly general labor, light cleaning, construction, and warehouse work. He also testified
that he shipped and received air conditioners and air conditioner parts as an employee at Weather
Tech. The claimant stated that he was a self-employed yard worker around his neighborhood in
2007. (R. 44-45). He further stated that he stopped working in 2008 because he could not find work.
(R. 39) The ALJ asked if the claimant would accept light general work if offered, and the claimant
stated that with his fatigue he could probably only work “a couple of hours at most.” (R. 42).
Mary Kessler, the vocational expert, testified that the claimant had past relevant work as a
warehouse laborer, classified as medium, unskilled work; a forklift operator, classified as medium,
semiskilled work; and a yard worker, classified as heavy, unskilled work. (R. 46). The ALJ then
presented Dr. Kessler with a hypothetical where she had to assume an individual with the claimant’s
age, education, and past work experience, and assume the individual is limited to light exertional
work with occasional handling with the left dominant arm. Dr. Kessler stated that the hypothetical
individual would not be able to perform any of the claimant’s past work. (R. 47).
The ALJ next asked Dr. Kessler if jobs existed in the national economy that the hypothetical
individual could perform. Dr. Kessler testified that the claimant could perform light, unskilled work,
such as a machine feeder and operator, a cleaner, and a vehicle and equipment cleaner. She further
testified that those jobs exist in significant numbers in the state of Alabama and in the national
economy. (R. 47-48).
Finally, the claimant’s attorney asked Dr. Kessler the general standard for adequate work
attendance, and she responded that entry-level and unskilled jobs would not tolerate more than one
day per month of absenteeism after the initial probation period. During the probation period, Dr.
Kessler stated that an employer over an entry-level, unskilled job would not tolerate any absences.
The ALJ Decision
The ALJ rendered her decision on April 5, 2011, finding that the claimant was not disabled
under Sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. (R. 19). The ALJ began
her opinion with a detailed description of the five-step sequential evaluation process used to
determine if a person is disabled under the Social Security Act. First, the ALJ found that the claimant
met the insured status requirements of the Social Security Act through December 31, 2012. Second,
the ALJ found that the claimant had not engaged in any substantial gainful activity since June 27,
2009. (R. 13).
Third, the ALJ found that the claimant had the severe impairments of hypertension; diabetes
mellitus; facial paralysis and left sided Bell’s palsy status post stroke; obesity; and sleep apnea. The
ALJ found that the claimant’s alleged headaches and fatigue were non-severe because they did not
have even a minimal affect on the claimant’s ability to work on a regular basis at competitive levels
of employment. The ALJ also found that the claimant did not have an impairment or combination
of impairments that met or medically equaled a listed impairment in 20 C.F.R. 404.1525(a). (R. 13).
Next, the ALJ found that the claimant had the residual functional capacity to perform light
work, but limited to occasional handling with his left dominant arm. In assessing the claimant’s
subjective testimony regarding the limiting effects of his pain, the ALJ determined that the
claimant’s medically determinable impairments of hypertension, diabetes mellitus, facial paralysis
and left sided Bell’s palsy status post stroke, obesity, and sleep apnea could reasonably be expected
to cause the alleged symptoms; however, the ALJ found that the claimant’s statements concerning
the intensity, persistence, and limiting effect of his symptoms were not credible because they were
inconsistent with the RFC assessment. (R. 14-16).
First, the ALJ noted that the claimant remained very active in everyday life by fixing his own
breakfast and lunch; taking his medications; watching television; performing light house work;
dressing himself; taking a bath; shaving; and feeding himself. (R. 17, 210). The ALJ also noted that
the claimant can lift up to twenty pounds. (R. 217). The ALJ determined that the claimant’s “long
list of activities is inconsistent with the long list of impairments and allegations regarding the
claimant’s statements.” Therefore, the ALJ found that the claimant could perform at a much higher
level than the claimant alleged in spite of his impairments. (R. 17).
Next, the ALJ noted that despite the claimant’s statements of left-sided weakness, the
claimant does not use an assistive device for ambulation and does not appear to have any difficulty
getting around with his alleged impairments. Thus, the ALJ found that the claimant’s statements
about left-sided weakness were only partially credible. Also, the ALJ considered the claimant’s
severe stroke in 2009, but concluded that this impairment is “not so severe as to be considered
disabling” because the claimant has had no other cerebral incidents and the claimant had not sought
or required significant treatment for this impairment. (R. 17).
In reaching the conclusion that the claimant was not disabled, the ALJ also considered the
assessments made by the Alabama Disability Determination Services physician, Dr. Jennifer Davis.
The ALJ stated that she did not give controlling weight to Dr. Davis’s opinion because she was a
non-examining physician, but the ALJ did give the opinion “great weight” because it was consistent
with and supported by the record. The ALJ indicated that Dr. Davis’s opinion noted that the
claimant’s statements were not fully credible because he does not use an ambulation device for his
left-sided weakness. Thus, the ALJ determined that no evidence indicated that the claimant was
unable to work. (R. 17).
Lastly, the ALJ determined that the claimant could not perform any past relevant work, but
was able to perform other work. The ALJ considered the claimant’s residual functional capacity,
age, education, and work experience. The ALJ found that the claimant had additional limitations
that impeded his ability to perform all or substantially all of the requirements of “light work.” The
ALJ noted, however, that the vocational expert testified that given all these factors, the claimant
could perform the occupations of machine feeder/operator, cleaner, and vehicle and equipment
cleaner. (R. 18-19).
The ALJ concluded that the claimant is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy. Therefore, the ALJ found that the
claimant had not been disabled under the Social Security Act from the date of his alleged onset on
June 27, 2009, through the date of the decision. (R. 19).
1. The ALJ’s RFC Findings are Based on Substantial Evidence.
The claimant argues that the ALJ’s RFC findings were not based on substantial evidence.
To the contrary, the court finds that the ALJ’s RFC findings were based on substantial evidence.
The ALJ reviews medical and other evidence to determine the claimant’s RFC to do work
despite his impairment. 20 C.F.R. §§ 404.1520(e) and 416.920(e); see also Lewis, 125 F.3d at
1440. The claimant bears the initial burden of proving he is disabled. Gibson, 762 F.2d at 1516.
If the ALJ finds that the claimant cannot perform any past relevant work, then the ALJ bears the
burden of proving the claimant can perform other work that exists in significant numbers in the
national economy. Chater, 67 F.3d at 1559 (11th Cir. 1995). Vocational expert testimony is
substantial evidence to prove the claimant can perform other work despite his impairments.
Chester, 792 F.2d at 132.
In the present case, the ALJ explicitly discussed the medical records concerning each of
the claimant’s impairments to determine the claimant’s residual functional capacity. First, the
ALJ discussed the claimant’s left sided Bell’s palsy following a stroke. Although the claimant
complained of weakness and numbness on his left side, the ALJ noted that the claimant did not
use an assistive device for walking and did not appear to have any difficulty getting around
despite his impairments. (R. 17).
Next, the ALJ determined that the claimant’s diabetes was well controlled when
monitored closely. Testing after the claimant’s June 2009 stroke indicated that his glucose levels
were stable. Also, the ALJ noted that the claimant never sought any specialized treatment for
diabetes. The claimant stated at the ALJ hearing that he did not notice any symptoms regarding
his diabetes except frequent urination at night. (R. 43). The ALJ determined that the claimant’s
diabetes was not disabling because it did not have an impact on the claimant’s day-to-day
functioning nor did it limit the claimant’s ability to work in a competitive work environment.
The ALJ supported her findings with the medical record and the claimant’s testimony; therefore,
the court finds that the ALJ had substantial evidence to find that the claimant’s diabetes was not
Likewise, the ALJ discussed that the claimant’s hypertension was more manageable when
he followed the prescribed treatment. Although the claimant stopped treating his hypertension
for about five months because he could not afford the medication, he testified that he started
receiving discount prescriptions and was able to refill them when necessary. Therefore, the
ALJ’s finding that the claimant could manage his hypertension with prescribed medication is
supported by substantial evidence in the record.
Also, the ALJ considered the claimant’s sleep apnea. However, the ALJ noted that Dr.
Dunlap diagnosed the claimant with “possible sleep apnea” and that the claimant had not sought
any specialized treatment or equipment to assist him with that impairment. Lastly, the ALJ
considered the claimant’s obesity and found that the impairment was not of disabling severity
because the claimant could perform many daily tasks such as fixing his own breakfast and lunch,
performing light housework, and taking a bath. Therefore, the ALJ properly concluded the
claimant had the RFC to perform light work, limited to occasional handling with his left
Finally, the ALJ met her burden of proving the claimant could engage in other substantial
gainful activity through vocational expert testimony. The vocational expert testified that, given
the claimant’s RFC for light work limited to occasional handling with his left dominant arm, the
claimant could perform work as a machine feeder/operator, cleaner, and vehicle and equipment
cleaner. Furthermore, the vocational expert testified that work in these occupations existed in
significant numbers in the national economy.
Based on the explicit findings of the ALJ based on the claimant’s medical records, and
the vocational expert’s corroborative testimony, this court concludes that the ALJ had substantial
evidence to support her RFC findings.
2. The ALJ Properly Developed the Record Without Obtaining a Medical Source Opinion (MSO).
The claimant argues that the ALJ should have developed the record by obtaining a
medical source statement either with medical expert assistance or by consultative examination.
In particular, the claimant argues that the ALJ needed to develop the record with a consultative
examination to “make an informed decision.” (Pl.’s Br. at 7-9). However, the claimant admits
that nothing expressly requires “a MSO ... to be of record in order for the ALJ to make RFC
findings.” (Pl.’s Br. at 5). The court finds that the ALJ did not need to obtain a MSO because the
record contained sufficient evidence.
The ALJ makes the determination of a claimant’s RFC at the hearing level. 42 U.S.C.§
405(b)(1) (stating that “the Commissioner of Social Security is directed to make findings of fact,
and decisions as to the rights of any individual applying for [social security disability or
supplemental security income]”); see also, 20 C.F.R. § 404.1546(c) (stating that “the [ALJ] is
responsible for assessing your residual functional capacity”). Furthermore, because the
regulations do not require the ALJ to base his RFC finding on an RFC assessment from a
medical source, failure to include a MSO “does not render the ALJ’s RFC assessment invalid.”
Langley, 777 F. Supp. 2d at 1261.
Although this court acknowledges that the ALJ has a duty to develop a full and fair
record, developing a full and fair record “may not require the use of expert-testimony.” Welch,
854 F.2d at 440. The ALJ’s consideration of a medical expert or a consultative examination is
allowed, but not required. See 20 C.F.R. 404.1529(b). Additionally, the ALJ is free to reject the
opinion of any physician when the evidence supports a contrary conclusion. Sryock v. Heckler,
764 F.2d 834, 835 (11th Cir. 1985).
In the present case, the record contained sufficient evidence for the ALJ to make a
determination of disability, so obtaining a MSO was unnecessary. Requiring the ALJ to obtain a
MSO would disregard the ALJ’s ability to determine a claimant’s RFC based on an already
sufficient record. Furthermore, the claimant could have presented a MSO for the ALJ’s
consideration, but failed to do so. See Ellison, 355 F.3d at 1276. The ALJ’s duty to develop the
record does not relieve the claimant of his burden to prove his own disability. Therefore, this
court finds that the ALJ properly developed the record.
3. The ALJ’s Reliance on a Non-examining SDM Opinion was a Harmless Error.
The claimant argues that the ALJ’s reliance on a non-examining single decision maker is
a reversible error. The court finds that the ALJ’s error was harmless.
The ALJ must state with particularity the weight given to different medical opinions.
Failure to do so is a reversible error. Sharfarz, 825 F.2d at 279; see also MacGregor, 786 F.2d at
1053. The Commissioner's policy is that, on appeal, the opinion of a non-examining state
agency single decision maker is entitled to no weight. See Program Operations Manual System
DI 24510.05, 2001 WL 1933365; see also 20 C.F.R. 404.1513. However, if the error is harmless
because it would not contradict the findings of the ALJ, then the ALJ’s decision stands.
Caldwell, 261 F. App’x at 190.
The ALJ improperly gave “great weight” to Dr. Jennifer Davis’s assessment that the
claimant was only partially credible. Dr. Davis determined that because the claimant could
perform a range of activities and he did not use an assistive device for ambulation, the evidence
did not support the level of severity of the claimant’s symptoms. However, as discussed above,
the remaining record provided substantial evidence to support a finding that the claimant was
capable of performing a light range of work, limited to occasional use with his dominant left
This court finds that the ALJ giving great weight to the single decision maker’s opinion is
a harmless error because substantial evidence supports the ALJ’s decision that the claimant is not
For the reasons stated, this court finds that the decision of the Commissioner is supported by
substantial evidence and is to be AFFIRMED. The court simultaneously will enter a separate Order
to that effect.
DONE and ORDERED this 24th day of September, 2013.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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