Griffin v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 9/26/17. (MRR, )

FILED
2017 Sep-26 PM 12:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

BLAKE R. GRIFFIN,
Plaintiff,
vs.
NANCY A. BERRYHILL, 1
Acting Commissioner of the
Social Security Administration,

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Case No. 2:16-cv-1403-TMP

Defendant.

MEMORANDUM OPINION
The plaintiff, Blake R. Griffin, appeals from the decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying
his application for a period of disability and Disability Insurance Benefits (“DIB”).
Mr. Griffin timely pursued and exhausted his administrative remedies, and the
decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g),
1383(c)(3). The parties have consented to the exercise of dispositive jurisdiction
by a magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 8). Accordingly, the
court issues the following memorandum opinion.
1

Counsel for the Commissioner pointed out in her brief that Carolyn W. Colvin is no longer the
Commissioner and that Nancy A. Berryhill is now the Acting Commissioner of the Social Security
Administration. The Clerk is DIRECTED to update the style of the case accordingly.

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I.

Introduction
Mr. Griffin was 47 years old on the date of the ALJ’s opinion. (Tr. at 31,

158). He obtained his GED after attending high school through the 10th grade.
(Tr. 58). After obtaining his GED, he completed one semester of training at a
technical college to become a machinist and one semester of training in production
at another technical college. Id. His past work experience includes employment in
labor jobs, such as tire store sales/service, vending route sales, truck driver, back
hoe operator, and building maintenance. (Tr. at 59-66). Mr. Griffin claims that he
became disabled on May 8, 2013, due to depression and anxiety, attention deficit
disorder (“ADD”), total left knee replacement, arthritis, and “right knee no
cartilage [sic].” (Tr. at 90).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
he is, the claimant is not disabled and the evaluation stops. Id. If he is not, the
Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
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claimant will be found to be disabled. Id. The decision depends on the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant’s impairments are not severe, the analysis stops.

20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
three, which is a determination of whether the claimant’s impairments meet or
equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments fall within this category, he will be found disabled without further
consideration. Id. If they do not, a determination of the claimant’s residual
functional capacity will be made and the analysis proceeds to the fourth step. 20
C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an
assessment, based on all relevant evidence, of a claimant’s remaining ability to do
work despite his impairments. 20 C.F.R. § 404.945(a)(1).
The fourth step requires a determination of whether the claimant’s
impairments prevent him from returning to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his past relevant
work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step
five requires the court to consider the claimant’s RFC, as well as the claimant’s
age, education, and past work experience, in order to determine if he can do other
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work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do
other work, the claimant is not disabled. Id. The burden is on the Commissioner
to demonstrate that other jobs exist which the claimant can perform; and, once that
burden is met, the claimant must prove his inability to perform those jobs in order
to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Mr. Griffin
meets the nondisability requirements for a period of disability and DIB and was
insured through December 31, 2018. (Tr. at 20). He further determined that Mr.
Griffin has not engaged in substantial gainful activity since the alleged onset of his
disability. Id. According to the ALJ, the plaintiff has the following impairments
that are considered “severe” based on the requirements set forth in the regulations:
degenerative joint disease of the knees, arthritis of the back, obesity, depression,
and anxiety. Id. However, he found that these impairments neither meet nor
medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id. The ALJ did not find Mr. Griffin’s allegations to be entirely
credible (tr. at 23), and he determined that he has the following residual functional
capacity:

After careful consideration of the entire record, I find that the claimant
has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) with occasional pushing and pulling
with the lower extremities; no climbing of ladders, ropes or scaffolds;
occasional climbing of ramps and stairs; occasional balancing,
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kneeling, crouching, and stooping, but no crawling; no more than
occasional exposure to extreme heat and cold and vibration; he should
avoid all hazardous machinery and unprotected heights; and no
working requiring walking on uneven terrain. During a regularly
scheduled workday, or the equivalent thereof, he can; (1) understand
and remember short and simple instructions, but is unable to do so
with detailed or complex instructions, (2) do simple, routine repetitive
tasks, but is unable to do so with detailed or complex tasks, (3) deal
with changes in work place, if introduced occasionally and gradually
and are well-explained, and (4) he may be expected to miss one day of
work per month due to his impairments.

(Tr. at 22).
According to the ALJ, Mr. Griffin is unable to perform any of his past
relevant work, he is a “younger individual,” and he has “at least a high school
education,” as those terms are defined by the regulations.

(Tr. at 29).

He

determined that “[t]ransferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a framework supports
a finding that the claimant is ‘not disabled,’ whether or not he has transferable job
skills.” (Tr. at 30). The ALJ found that Mr. Griffin has the residual functional
capacity to perform sedentary “jobs that exist in significant numbers in the national
economy.” (Tr. at 30). Even though additional limitations impede Plaintiff’s
“residual functional capacity to perform the full range of sedentary work,” the ALJ
determined that Plaintiff “would be able to perform the requirements of
representative sedentary, unskilled occupations with an SVP of 2, such as . . .
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telephone quotation clerk, . . . charge account clerk, . . . .and as a dowel inspector.”
Id. The ALJ concluded his findings by stating that Plaintiff “has not been under a
disability, as defined in the Social Security Act, from May 8, 2013, through the
date of this decision.” Id.
II.

Standard of Review
This court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether
there is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not
decide facts, weigh evidence, or substitute its judgment for that of the
Commissioner. Id. “The substantial evidence standard permits administrative
decision makers to act with considerable latitude, and ‘the possibility of drawing
two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’”

Parker v.

Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting
Consolo v. Federal Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this
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court finds that the evidence preponderates against the Commissioner’s decision,
the court must affirm if the decision is supported by substantial evidence. Miles,
84 F.3d at 1400. No decision is automatic, however, for “despite this deferential
standard [for review of claims] it is imperative that the Court scrutinize the record
in its entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct
legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635
(11th Cir. 1984).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.”

20 C.F.R. §§ 404.1527(e), 416.927(d).

Whether the

plaintiff meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
disagree with the ALJ about the significance of certain facts, the court has no

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power to reverse that finding as long as there is substantial evidence in the record
supporting it.
III.

Discussion
Mr. Griffin alleges that the ALJ and the Appeals Council erred in finding

that he was not disabled because substantial evidence of his disability was
presented.2 Specifically, Mr. Griffin argues that the ALJ’s decision should be
reversed and remanded for two reasons. First, he believes that the ALJ failed to
give substantial or considerable weight to the Residual Functional Capacity
Assessment (“Assessment”) prepared by Dr. Elizabeth Stevenson 3 when the ALJ
found that the plaintiff was capable of performing sedentary work. (Doc. 13 at pp.
7-9). Second, the plaintiff contends that, when considered in light of the new
evidence submitted to the Appeals Council, the ALJ erred in finding that the

2

Although the plaintiff suggests otherwise, the Appeals Counsel did not fail to consider the newly
submitted evidence when it denied the plaintiff’s Request for Review. See Tr. 1-3; see also Doc. 13 at pp.
9-12. In its denial of the plaintiff’s request for review, the Appeals Council stated that “we considered . . .
the additional evidence listed on the enclosed Order of Appeals Council . . . We found that this
information does not provide a basis for changing the Administrative Law Judge’s decision.” (Tr. at 2).
In the recent Eleventh Circuit opinion, Mitchell v. Commissioner, Social Security Administration, 771
F.3d 780 (11th Cir. 2014), as in the instant case, the Appeals Council “denied [the claimant’s] request for
review, explaining that it had considered [his] reasons for disagreeing with the ALJ’s decision as well as
his additional evidence,” and determined that the new evidence did not provide a basis for changing the
ALJ’s decision. Id. at 782. Also similarly to the instant case, the Appeals Council in Mitchell did not
engage in a discussion of the new evidence. Id. The Eleventh Circuit held that “the Appeals Council is
not required to explain its rationale for denying a request for review. . . .” Id. at 784. This court has no
reason to second-guess the assertion by the Appeals Council that it considered the new evidence offered
by the plaintiff. Accordingly, to the extent the plaintiff implicitly suggests in his brief that his case should
be remanded for this reason, the argument is without merit.
3

Dr. Stevenson is Mr. Griffin’s primary treating physician. (Tr. at 69).

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plaintiff’s degenerative joint disease of the knee did not meet or medically equal
the severity of the impairment in Listing 1.02A. (Doc. 13 at pp. 9-12).
A.

Dr. Stevenson’s Residual Functional Capacity Assessment

The plaintiff contends that the ALJ erroneously gave little weight to Dr.
Stevenson’s Residual Functional Capacity Assessment (“Assessment”). (Doc. 9 at
p. 3.) A treating physician’s testimony is entitled to “substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Crawford v. Commissioner
of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal quotations omitted). The
weight to be afforded a medical opinion regarding the nature and severity of a
claimant’s impairments depends, among other things, upon the examining and
treating relationship the medical source had with the claimant, the evidence the
medical source presents to support the opinion, how consistent the opinion is with
the record as a whole, and the specialty of the medical source. See 20 C.F.R. §§
404.1527(d), 416.927(d). Furthermore, “good cause” exists for an ALJ not to give
a treating physician’s opinion substantial weight when the: “(1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also Edwards v. Sullivan,
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937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good cause” existed where
the opinion was contradicted by other notations in the physician’s own record).
As explained above, however, the court must remain aware of the fact that
opinions such as whether a claimant is disabled, the claimant’s residual functional
capacity, and the application of vocational factors “are not medical opinions, . . .
but are, instead, opinions on issues reserved to the Commissioner because they are
administrative findings that are dispositive of a case; i.e., that would direct the
determination or decision of disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d).
The court is interested in the doctors’ evaluations of the claimant’s “condition and
the medical consequences thereof, not their opinions of the legal consequences of
his [or her] condition.” Lewis, 125 F.3d at 1440. Such statements by a physician
are relevant to the ALJ’s findings, but they are not determinative, as it is the ALJ
who bears the responsibility for assessing a claimant’s residual functional capacity.
See, e.g., 20 C.F.R. § 404.1546(c).
Dr. Stevenson met with Mr. Griffin on January 9, 2015, to diagnose Mr.
Griffin’s current state and to prepare the Assessment in anticipation of the ALJ’s
hearing. During that office visit, Dr. Stevenson noted “[w]ith regard to the knee
pain, left knee pain a constant 6 and incre[ased] to a ‘10’ with prolonged standing.
Always swollen and worsens with certain activities. Left knee gives way at times
and right knee history of ‘popping’ out of joint. . . .” (Tr. at 544). In her review of
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symptoms, she found that the plaintiff was positive for “arthralgias” of the knees
and swelling of the knees, with “cold damp weather worsen[ing the] pain.” Id.
The plaintiff stated that he was “unable to kneel due to pain and unable to stand if”
he did kneel. Additionally, the “left knee gives out causing falls . . . [and s]plinting
knee causes muscular wasting.” Id. The objective exam revealed a “slow and . . .
abnormal” gait and a swollen left knee with “an effusion.” (Tr. at 546). However,
Dr. Stevenson did propose any treatment or plan for his knee issues.
On January 20, 2015, Dr. Stevenson prepared her Assessment in response to
the January 9, 2015, office visit. In the Assessment, she concluded that Mr. Griffin
had the following exertional limitations, in pertinent part: “stand and/or walk (with
normal breaks) for a total of . . . less than 2 hours in an 8-hour workday” and “sit
(with normal breaks) for a total of . . . less than about 6 hours in an 8-hour
workday.” (Tr. at 538). She explained that the plaintiff had undergone a left total
knee replacement with revision of the left knee and that he “continue[d] to have
pain, swelling, [and] loss of function.” Id. She also concluded that Mr. Griffin
would never be able to climb “ramp/stairs” or “ladder/rope/scaffolds” or engage in
activities involving balancing, stooping, kneeling, crouching, or crawling. (Tr. at
539).

She explained that the plaintiff had pain and weakness and his “knee

function affect[ed] these activities.” Id. Finally, she concluded that the plaintiff

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should avoid even moderate exposure to extreme cold, humidity, and “hazards
(machinery, heights, etc.).” (Tr. at 541).
The ALJ gave little weight to “[t]he opinion of Dr. Stevenson . . . .” (Tr. at
28). Specifically, the ALJ concluded that

[w]hile Dr. Stevenson opines that the claimant can perform work at
the light level of exertion, her other limitations (such as the claimant
can sit less than six hours a day and that he should never balance,
kneel, crawl, etc.) are inconsistent with the objective medical evidence
that shows that the claimant does not require an assistive device, that
he can duck walk, and that his reflexes, gait and coordination are
intact. Some of Dr. Stevenson’s limitations are also vague and
conclusory and she failed to give an opinion in several areas as to
what specific limitations, if any, she believes the claimant has.

(Tr. at 28-29). Mr. Griffin contends that the ALJ only briefly explained why Dr.
Stevenson’s findings were to be given little weight. Specifically, the plaintiff
alleges that the factors identified by the ALJ (“the claimant does not require an
assistive device, that he can duck walk, and that his reflexes, gait and coordination
are intact” (Tr. at 28)) “bear little relevance to the issue of whether the plaintiff can
sit or stand for a certain length of time during a work day.” (Doc. 13 at p. 8). Mr.
Griffin also asserts that he has submitted new evidence demonstrating that he
cannot duck walk and that evidence in the record demonstrates that his “gait is not
normal but that he walks with a limp.” (Doc. 13 at p. 8).

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Despite Mr. Griffin’s assertions, the ALJ did not err in affording little
weight to the Assessment prepared by Dr. Stevenson. In fact, the ALJ correctly
noted that the Assessment is inconsistent with the medical record as a whole, as
discussed throughout his decision. (Tr. at 28). Evidence exists in the record which
contradicts Dr. Stevenson’s findings in the Assessment, both prior to and after the
Assessment, and demonstrates that the plaintiff “does not require an assistive
device . . . and that his reflexes, gait and coordination are intact.” Id. For example,
Dr. Stevenson’s other medical records are inconsistent with Assessment, which
include records from another doctor in her office who also evaluated Mr. Griffin.
On January 2, 2014, Dr. Jordan Vaughn saw the plaintiff for an upper respiratory
infection; while the plaintiff did not present with knee issues at this visit, Dr.
Vaughn noted that the plaintiff’s gait was normal. (Tr. at 524-25). On March 3,
2014, Dr. Stevenson noted that Mr. Griffin presented with a cough and diffuse
joint pain, which included pain and swelling in the knee; Dr. Stevenson also noted
that Mr. Griffin had consulted with Dr. Goldstein regarding another possible knee
surgery. (Tr. at 518). On July 15, 2014, Dr. Stevenson stated that the plaintiff
“present[ed] with . . . pain [in his] knees. Has had knee surgery. Takes Mobic
daily. Has applied for disability and has hearing in about 6 months.” (Tr. at 500).
However, Dr. Stevenson did not make any notations regarding the objective

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examination of his musculoskeletal system nor did she establish a plan for
treatment of any knee problems. (Tr. at 502-03).
Later on July 15, 2014, Mr. Griffin visited Dr. Vaughn for a Department of
Transportation (“D.O.T.”) physical (tr. at 496) in order to keep his commercial
driver’s license (“CDL”) current (tr. at 57-58). Dr. Vaughn concluded that Mr.
Griffin was negative for arthralgias and myalgias; additionally, Dr. Vaugh found
that Mr. Griffin had a normal range of motion (“ROM”) and normal duck walk.4
(Tr. at 496-97). The plaintiff visited Dr. Stevenson again on September 10, 2014,
for abnormal pain, but importantly, he did not complain of knee pain nor did Dr.
Stevenson address any knee issues in her office note. (Tr. at 490-92). On October
24, 2014, Dr. Stevenson saw Mr. Griffin for a cough; again, Dr. Stevenson did not
address any knee issues or conduct an objective examination of the knee during
that visit. (Tr. at 483-85).
Additionally, medical records from Dr. Goldstein, the plaintiff’s orthopedic
surgeon, render the Assessment inconsistent with the entire record as a whole. Mr.
Griffin underwent a total knee arthroplasty on August 20, 2013. (Tr. at 340).
Laura Leach, a physical therapist, noted on October 10, 2013, that Mr. Griffin was
making excellent progress following the surgery, with his gait, strength, and ROM
4

The notation of a “normal duck walk” was likely in error, as suggested by the plaintiff in
evidence submitted to the Appeals Council. Regardless, this single mistake does not overcome the record
and overwhelming medical evidence that supported the ALJ’s decision to give little weight to Dr.
Stevenson’s Assessment.

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improving. (Tr. at 439). On October 21, 2013, Mr. Griffin followed up with Dr.
Goldstein (Tr. at 462), who noted that the plaintiff “ha[d] no real complaints other
than he feels a little clicking occasionally in his knee.”

Id.

The physical

examination revealed that “[the plaintiff] walk[ed] with a minimal limp. Range of
motion [ROM], 0 to 125 degrees. [The plaintiff] does have some very minimal
mid-flexion instability.

He has no instability noted with the knee in full

extension.” Id. On December 2, 2013, Dr. Goldstein noted that Mr. Griffin was
“doing well” despite “some instability” causing pain that was “not severe.” (Tr. at
461).
Despite complaints of knee pain “while standing, sitting, and resting his
knee for any significant periods of time” and knee swelling in March 2014, Dr.
Goldstein noted that Mr. Griffin exhibited only a “mild limp” and a ROM of 0 to
135 degrees on March 3, 2014 (Tr. at 459), and a normal gait and ROM of 0 to 120
degrees on March 31, 2014, with no indications of instability (Tr. at 457). On
May 2, 2014, following an April 24, 2014, arthroscopic procedure on his left knee
performed by Dr. Goldstein, Mr. Griffin stated to Dr. Goldstein “that his knee
[was] already feeling much better.”

(Tr. at 455).

Mr. Griffin required no

assistance and had no limp; there was no effusion of the left knee and his ROM
was 0 to 120 degrees. Id. Finally, on April 20, 2015, after the date Dr. Stevenson
prepared her Assessment, Dr. Goldstein evaluated Mr. Griffin again following
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complaints of worsening knee pain with instability. Specifically, Mr. Griffin
reported that “he [felt] unstable when walking, especially if he . . . climb[ed]
anything like a step ladder.” (Tr. at 613). However, Dr. Goldstein noted that Mr.
Griffin “ha[d] not . . . tried a brace” nor engaged in “significant strengthening
exercises.” Id. The physical examination revealed a “normal gait without assistive
devices” and, in regards to the left knee, “[n]o deformity . . . [,m]ild tenderness . . .
[,n]ormal patella mobility[,]” and a ROM of 0 to “greater than 125 degrees.” (Tr.
at 614).
For these reasons, the court is of the opinion that the ALJ had good cause to
disregard Dr. Stevenson’s Assessment of the plaintiff’s RFC because it was
inconsistent with the her own treatment records and with the medical record in the
case as a whole. See Crawford, 363 F.3d at 1159-60; Phillips, 357 F.3d at 1240-41.
Substantial evidence supported the ALJ’s decision to disregard Dr. Stevenson’s
Assessment.
B.

The Requirements of Listing 1.02A

The plaintiff contends that, in light of newly submitted evidence, the ALJ’s
determination that the plaintiff’s degenerative joint disease of the knees does not
meet or medically equal the severity of the impairment in Listing 1.02A is not
based on substantial evidence. “[W]hen a claimant properly presents new evidence

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to the Appeals Council, a reviewing court must consider whether that new
evidence renders the denial of benefits erroneous.” Ingram v. Commissioner of
Social Security Administration, 496 F.3d 1253, 1262 (11th Cir. 2007). “The Appeals
Council must consider new, material, and chronologically relevant evidence and
must review the case if ‘the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of record.’” Ingram
v. Commissioner of Social Security Administration, 496 F.3d 1253, 1261 (11th Cir.
2007), 20 C.F.R. § 404.900(b).
It has been established that the Appeals Council considered the new
evidence and determined that it was not sufficient to render the ALJ’s decision
erroneous. (Tr. at 1-3). However, this court still must consider whether the ALJ’s
determination that the plaintiff’s degenerative joint disease of the knees does not
meet or medically equal the severity of the impairment in Listing 1.02A

is

supported by substantial evidence, based on the entire record, which now includes
the newly submitted evidence. Listing 1.02A provides as follows:
Major dysfunction of a joint(s) (due to any cause) . . . [c]haracterized
by gross anatomical deformity (e.g., subluxation, contracture, bony or
fibrous ankyloses, instability) and chronic joint pain and stiffness with
signs of limitation of motion or other abnormal motion of the affected
joint(s), and other findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or ankyloses of the
affected joint(s). With . . . [i]nvolvment of one major peripheral
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weight-bearing joint (i.e. hip, knee, or ankle), resulting in inability to
ambulate effectively.

20 CFR Part 404, Subpart P, Appendix 1, Part A, 1.02A. The plaintiff argues that
the ALJ’s determination was in error because Dr. Goldstein’s medical records and
newly submitted Examination under Oath, “when viewed as a whole[,]
demonstrate that the plaintiff has continued to suffer from debilitating knee pain.”
(Doc. 13 at p. 9). Additionally, Mr. Griffin alleges that the weight given to the
D.O.T. physical conducted by Dr. Vaughn was erroneous because his newly
submitted Affidavit and Dr. Goldstein’s Examination under Oath demonstrate that
Mr. Griffin was not in fact asked to duck walk, nor was he capable of performing a
duck walk. (Doc. 13 at pp. 10-11).
While the plaintiff alleges, and Dr. Goldstein opines in his Examination
under Oath, that he suffers from debilitating knee pain and his knee “has gotten
worse over the years” (Doc. 13 at p. 10), the plaintiff fails to point to objective
evidence in the record that would meet or medically equal the severity of the
impairment in Listing 1.02A. Irrespective of this failure, the evidence in the
medical record actually preponderates against finding that Mr. Griffin meets or
medically equals the severity of the impairment in Listing 1.02A and, as such, is
not disabled, as determined by the ALJ. For example, the plaintiff submitted a new

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record from Dr. Goldstein, dated April 20, 2015. (Tr. at 613-614). While Dr.
Goldstein noted that the plaintiff reported “some worsening anterior left knee pain
with knee instability” and that “he fe[lt] unstable when walking, especially if he
does climb anything like a step ladder,” Dr. Goldstein found that the plaintiff “has
not tried a brace” nor has he tried “significant strengthening exercises.” (Tr. at
613).
The physical examination on April 20, 2015, demonstrates that the
requirements of Listing 1.02A have not been meet. Dr. Goldstein observed that the
plaintiff was “in no acute distress” and had a “[n]ormal gait without assistive
devices.” (Tr. at 613-14). Regarding the left knee, Dr. Goldstein observed as
follows:
No Deformity. No discoloration. No Atrophy. Mild tenderness to
palpation over later joint line. No crepitation. No effusion. Active
Range of Motion: Extension 0 degrees, Flexion greater than 125
degrees. Passive Range of Motion: Consistent with active. Strength:
5/5 quadriceps. 5/5 Hamstrings. Negative posterior drawer. Stable to
varus and valgus at 0 degrees of flexion with some active 30 degrees
of flexion. Normal patella mobility. Negative patella apphresion.

(Tr. at 614).

While Dr. Goldstein’s impression found “[l]eft knee pain with

functional instability status post TKA,” Dr. Goldstein recommended that Mr.
Griffin continue “to work on strengthening exercises on his left knee, which

Page 19 of 22

[could] help with his functional instability, as well as possibly his anterior knee
pain.” Id. Dr. Goldstein also stated that

[i]t is possible that his anterior knee pain will continue, as it may be
secondary to some postsurgical changes, given multiple time of
surgeries. We will get him fitted for a neutral functional MCL brace
to provide him some extra stability, which will help him when he is
active and more stability [sic]. I explained him [sic] that there is
no apparent ligamentous defects given his stability at neutral.

Id. These findings establish that there is not a “gross anatomical deformity and
chronic joint pain and stiffness with signs of limitation of motion or other
abnormal motion of the affected joint[], . . . resulting in inability to ambulate
effectively.” 20 CFR Part 404, Subpart P, Appendix 1, Part A, 1.02A. While Mr.
Griffin may have some functional instability, the ALJ correctly determined that
Mr. Griffin’s gait was normal, as demonstrated by the newly submitted medical
record from Dr. Goldstein on April 20, 2015. More importantly, Dr. Goldstein
noted that the plaintiff’s left knee had “No Deformity.” (Tr. at 614).
Further evidence in the medical record, as discussed previously,
demonstrates that the plaintiff has a normal gait, which indicates that the plaintiff
objectively “ambulate[s] effectively.” 20 CFR Part 404, Subpart P, Appendix 1,
Part A, 1.02A. In fact, there is more evidence of a normal gait in the medical

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record than evidence of an abnormal gait, as argued by the plaintiff. (See Doc. 13
at p. 8). The medical record led the ALJ to conclude that the plaintiff’s

degenerative joint disease of the knee does not meet the requirements
of listing 1.02A because he does not have a major dysfunction of a
joint due to any cause, characterized by a gross anatomical deformity
and chronic joint pain and stiffness with signs of limitation of motion
of the affected joint, and findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or ankyloses of
the affected joint, with (A) involvement of one major peripheral
weight-bearing joint (i.e. hip, knee, or ankle), resulting in inability to
ambulate effectively.
(Tr. at 21). On January 2 and July 15, 2014, Dr. Vaughn found Mr. Griffin’s gait to
be normal. (Tr. at 525 and 497). On October 10, 2013, the plaintiff’s physical
therapist found his gait to be improving. (Tr. at 439). Dr. Goldstein found the
plaintiff had a minimal limp on October 21, 2013. (Tr. at 462). By March 2014,
Dr. Goldstein observed a mild limp on March 3, 2014 (tr. at 459), but a normal gait
on March 31, 2014 (tr. at 457). Finally, on May 2, 2014, a few weeks after the
plaintiff’s April 2014 arthroscopic surgery, Dr. Goldstein noted the plaintiff had a
normal gait. (Tr. at 455). Therefore, substantial evidence of a normal gait exists in
the record.
While the court takes notice of the plaintiff’s argument that he actually did
not perform a duck walk during the D.O.T. physical on July 15, 2014, the ability to
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perform a duck walk is of no consequence in determining whether the plaintiff can
ambulate effectively. Therefore, to the extent the plaintiff argues that the affidavit
of the plaintiff and Dr. Goldstein’s Examination under Oath compel a finding that
the plaintiff meets or medically equals the severity of the impairment in Listing
1.02A and is disabled is without merit.
Accordingly, even after the submission of new evidence to the Appeals
Council, substantial evidence existed in the medical record to demonstrate that the
plaintiff ambulates effectively, and the ALJ correctly determined that the plaintiff
does not have an impairment that meets or medically equals the severity of the
impairment in Listing 1.02A and is therefore not disabled.
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr.

Griffin’s arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. The Commissioner’s
decision hereby is AFFIRMED and the action is DISMISSED WITH
PREJUDICE. A separate Order will be entered.
DONE this 26th day of September, 2017.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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