Rudolph v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 7/21/2014. (PSM)

FILED
2014 Jul-21 AM 10:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

KENNETH NATHANIEL RUDOLPH, )
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.
2:12-cv-2934-AKK

MEMORANDUM OPINION
Plaintiff Kenneth Nathaniel Rudolph (“Rudolph”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). 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
Rudolph, whose past relevant experience includes work as a machine operator
and forklift operator, filed an application for Title II disability insurance benefits with
a protective filing date of December 12, 2006, alleging a disability onset date of
October 6, 2006, due to lower back pain and diabetes. (R. 32, 36, 176). After the

SSA denied Rudolph’s claim, he requested a hearing before an ALJ. (R. 119). The
ALJ subsequently denied Rudolph’s claim, (R. 92-102). The Appeals Council granted
Rudolph’s request for review, and remanded the case to an ALJ to clarify Rudolph’s
past relevant work and RFC, (R. 105-06), and to determine whether a subsequent Title
XVI claim for Supplemental Security Income should be consolidated with Rudolph’s
Title II claim.1 (R. 106).
On remand from the Appeals Council, a hearing was held before a different
ALJ on April 29, 2010, who subsequently found Rudolph was not disabled. (R. 2936). This decision became the final decision of the Commissioner when the Appeals
Council refused to grant review. (R. 1-6). Rudolph then filed this action for judicial
review pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). 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) mandates that the
Commissioner’s “factual findings are conclusive if supported by ‘substantial
evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district
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On remand, the ALJ found no reason for consolidating the claims. (R. 36).
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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 impairments 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 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
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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). 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 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).

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IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Rudolph had not
engaged in substantial gainful activity since October 6, 2006, and, therefore, met Step
One. (R. 33). Next, the ALJ found that Rudolph satisfied Step Two because he
suffered from the severe impairments of “low back pain without objectively
identifiable etiology.” Id. The ALJ then proceeded to the next step and found that
Rudolph 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. 34). 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 Rudolph has the residual functional capacity (RFC) “to
perform the full range of medium work as defined in 20 CFR 404.1567(c).” Id. In
light of his RFC, the ALJ held that Rudolph is “capable of performing past relevant
work as a Machine Operator and Forklift Operator.” (R. 36). Therefore, the ALJ
found that Rudolph “has not been under a disability, as defined in the Social Security
Act, from October 6, 2006, through the date of this decision.” Id.
V. Analysis
The court now turns to Rudolph’s contentions that the ALJ erred by (1) not
properly assessing the medical opinions in the record; (2) failing to consider

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Rudolph’s nonsevere impairments; and (3) departing from the administrative law of
the case. See doc. 9 at 7-13. The court addresses each contention in turn.
A.

The ALJ’s Assessment of the Medical Opinions

Rudolph’s primary contention on appeal is that the ALJ improperly rejected the
opinions of Dr. Edwin Moyo, one of his treating physicians. On December 16, 2008,
Dr. Moyo completed a form indicating Rudolph would be able to lift and/or carry “50
pounds occasionally to 25 pounds frequently,” and would be limited to a total of three
hours sitting, and two hours combined standing and walking in an eight-hour
workday. (R. 252). Dr. Moyo also indicated Rudolph had pain that would be
distracting to the adequate performance of daily activities or work. (R. 250). Rudolph
contends that Dr. Moyo’s opinions establish that Rudolph is disabled.
In determining how much weight to give Dr. Moyo’s opinion, the ALJ had to
consider several factors, including whether Dr. Moyo (1) had examined Rudolph; (2)
had a treating relationship with Rudolph; (3) presented medical evidence and
explanation supporting his opinion; (4) provided an opinion that is consistent with the
record as a whole; and (5) is a specialist. See 20 C.F.R. § 404.1527(c). If an ALJ
“find[s] that a treating source’s opinion on the issue(s) of the nature and severity of [a
claimant’s] impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence,” it will be given “controlling weight.” 20 C.F.R. § 404.1527(c)(2).
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Moreover, in this circuit, “the testimony of a treating physician must be given
substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). “Good cause” exists when
the evidence does not bolster the treating physician’s opinion; a contrary finding is
supported by the evidence; or the opinion is conclusory or inconsistent with the
treating physician’s own medical records. Id. If a treating physician’s opinion is
rejected, “[t]he ALJ must clearly articulate the reasons for giving less weight to the
opinion . . . and the failure to do so is reversible error.” Id.
The ALJ gave no weight to the opinions of Dr. Moyo because “[t]hey appear to
be conclusory and are not supported by the weight of the evidence in this case,
including the claimant’s own treatment records obtained from Dr. Moyo.” (R. 35).
Based on a review of the record, the court finds the ALJ’s articulated reasons for
rejecting Dr. Moyo’s opinions are supported by substantial evidence. As the ALJ
observed, Dr. Moyo’s opinions are conclusory– i.e., he did not explain why Rudolph’s
condition limited him to three hours sitting and two hours walking/standing.
Moreover, Dr. Moyo’s opinions are inconsistent with his own treatment records,
which “reflect generally nothing more than medication management of hypertension.”
(R. 33, 253-73). Dr. Moyo’s treatment notes also show only normal musculoskeletal
examinations, (R. 254, 262, 263, 264), and contain no diagnostic imaging of
Rudolph’s back. Therefore, Dr. Moyo’s opinions are not “well-supported by
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medically acceptable clinical and laboratory diagnostic techniques,” as is required for
them to be given controlling weight. 20 C.F.R. § 404.1527(c)(2); see also Lewis, 125
F.3d at1440 (good cause exists to reject an opinion when it is conclusory or
inconsistent with the treating physician’s own medical records).
In addition, the ALJ correctly rejected Dr. Moyo’s opinions because they are
inconsistent with other substantial medical evidence. See 20 C.F.R. § 404.1527(c)(2)
(to be given controlling weight, the treating sources opinions must not be “inconsistent
with the other substantial evidence”). For example, treatment records from the VA
Medical Center show negative findings on examination, and that Rudolph’s back pain
responded to treatment. Specifically, these notes show Rudolph sought treatment on
January 22, 2010, complaining of low back pain and requesting narcotics. (R. 349).
Rudolph had a negative SLR test on examination, was prescribed acetaminophen and
ibuprofen for back pain, and was to be evaluated by physical therapy for a TENS unit.
(R. 349-50). When Rudolph presented for a follow-up visit on March 12, 2010, Dr.
Phillip Johnson reported that “overall he feels better, but cont[inues] to have back
pain.” (R. 337). Dr. Johnson found negative SLR testing on examination, and
remarked that Rudolph’s back pain was “controlled with TENS unit, PT, ibuprofen,
and tylenol.” (R. 337-38). These treatment records support the ALJ’s finding that Dr.
Moyo’s opinions are not supported by the weight of the evidence.

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The other medical evidence also includes the consultative examination
performed by Dr. Bruce Romeo, an SSA consultative examiner, who opined Rudolph
can lift and carry 50 pounds occasionally, 20 pounds frequently, and 10 pounds
continuously. (R. 35, 237). In contrast with Dr. Moyo’s treatment records, Dr.
Romeo’s physical examination and diagnostic testing support his opinions. As the
ALJ observed, Dr. Romeo “noted no spasm or tenderness in the back,” found “a
normal range of motion in the cervical spine and dorsolumbar spine,” and “x-rays of
the lumbar spine and the cervical spine were normal.” (R. 35, 231, 233, 235-36).
Therefore, the ALJ properly applied the regulations and law of this circuit in assigning
great weight to Dr. Romeo’s opinions because Dr. Romeo examined Rudolph,
presented medical evidence and explanation supporting his opinion, and bolstered his
opinions with diagnostic imaging. See Lewis, 125 F.3d at1440; 20 C.F.R. §
404.1527(c). Where, as here, Dr Romeo, unlike Dr. Moyo, provided medical support
for his opinions, Rudolph’s contention that the ALJ “uncritically gave [Dr. Bruce
Romeo’s] report great weight,” (R. 7-8), is unavailing.
Ultimately, the ALJ properly considered the medical opinions and gave them
weight in accordance with the regulations and law of this circuit. Moreover, the ALJ
clearly articulated his reasons for giving no weight to Dr. Moyo’s opinions and for
giving great weight to Dr. Romeo’s opinions. Because substantial evidence supports
these findings, the ALJ committed no reversible error.
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B.

Rudolph’s Nonsevere Impairments

Rudolph next contends the ALJ did not properly consider his nonsevere
impairments of hypertension, diabetes, hepatitis C, and inguinal hernia. Doc. 9 at 1011. Unfortunately, contrary to Rudolph’s contention that the ALJ “eliminat[ed]
hypertension and diabetes from consideration as even severe impairments,” doc. 9 at
10, the ALJ specifically addressed both. In finding Rudolph’s hypertension was not
severe, the ALJ noted that treatment records from Dr. Moyo “reflect generally nothing
more than medication management for hypertension.” (R. 33). Likewise, the ALJ
noted that treatment records show Rudolph was diagnosed with diabetes and “was
started on medication for his blood sugar, with no further significant complications or
functional impediments indicated.” Id. Further, although Rudolph alleges the ALJ
did not “address why an impairment of right inguinal hernia would not impact an
individual’s ability to bend and stoop as well as lift,” doc. 9 at 11, he has pointed to no
evidence showing that this condition, or any of his nonsevere conditions, caused
restrictions greater than found by the ALJ. This omission is fatal to Rudolph’s
argument because “the mere existence of these impairments does not reveal the extent
to which they limit [Rudolph’s] ability to work or undermine the ALJ’s determination
in that regard.” Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005).
Moreover, it is Rudolph who “must show the effect of the impairment[s] on [his]
ability to work.” Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005)
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(unpublished) (citing McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.1986));
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (“[T]he claimant bears the
burden of proving that he is disabled, and, consequently, he is responsible for
producing evidence in support of his claim.”). Based on this record, Rudolph has
failed to carry his burden of showing that the ALJ failed to consider his nonsevere
impairments, or that they caused restrictions greater than those found by the ALJ.
C.

Administrative Law of the Case

Finally, Rudolph contends that the ALJ was bound by the first ALJ’s finding
that Rudolph was limited to less than a full range of light work because it had
“become the administrative law of the case.” Doc. 9 at 12-13. In support of his
argument, Rudolph cites to cases applying the doctrine of administrative res judicata
to cases in which a second ALJ made findings inconsistent with a prior decision that
had become final. See doc. 9 at 12-13 (Bloodsaw v. Apfel, 105 F.Supp. 2d (N.D. Ala.
2000); Gallart v. Apfel, No. 8:98CV762-T-17(E), 2000 WL 782955, (M.D. Fla. June
13, 2000); Lively v. Sec. of HHS, 820 F.2d 1391 (4th Cir. 1987); Gavin v. Heckler,
811 F.2d 1195 (8th Cir. 1987)).

However, Rudolph’s reliance on this line of cases

misses the mark because the first ALJ’s decision never became final because the
Appeals Council vacated it. (R. 105). When the Appeals Council remands a case, the
ALJ “may take any additional action that is not inconsistent with the Appeals
Council’s remand order.” 20 C.F.R. § 404.977(b). There was no inconsistency here
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with the second ALJ’s reevaluation of Rudolph’s RFC and the Appeals Council’s
remand order, which specifically required that “the hypothetical questions [to the
vocational expert] should reflect the specific capacity/limitations established by the
records as a whole.” (R. 106). Under these circumstances, there is no rule of issue
preclusion, and the second ALJ was not bound by the findings made by the first ALJ
and was free to reevaluate Rudolph’s RFC. Muse v. Sullivan, 925 F.2d 785, 790 (5th
Cir. 1991) (When the Commissioner vacates and “remands cases for redetermination,
there is no rule of issue preclusion.”); Houston v. Sullivan, 895 F.2d 1012, 1015 (5th
Cir. 1989) (“Once the case was remanded to the ALJ to gather more information about
the extent of [the claimant’s] disability, the ALJ was free to reevaluate the facts.”).
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Rudolph 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 this 21st day of July, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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