Smith v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 12/6/2013. (MSN)

FILED
2013 Dec-06 AM 10:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
ROY DEAN SMITH,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

3:13-cv-00294-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Roy Dean Smith, appeals from the decision of the Commissioner

of the Social Security Administration (“Commissioner”) denying his application for
a period of disability, Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”). Mr. Smith 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).
Mr. Smith was forty-one years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and he has a seventh grade education. (Tr. at 43.) His

Page 1 of 18

past work experiences include employment as an air conditioning repairman, a
refrigerator repairman, and a fast food cook. (Tr. at 56.) Mr. Smith claims that he
became disabled on April 9, 2010 (Tr. at 117), due to a broken femur, hip, and second
vertebra in the neck suffered in a car accident. (Tr. at 138.)
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 or she is, the
claimant is not disabled and the evaluation stops. Id. If he or she 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 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

Page 2 of 18

C.F.R. pt. 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 or she
will be found disabled without further consideration. Id. If they do not, a
determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her 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 or her 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 or she can do other
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.
Applying the sequential evaluation process, the ALJ found that Mr. Smith
meets the “insured status requirements of the Social Security Act through December
31, 2014.” (Tr. at 26.) He further determined that Mr. Smith has not engaged in
substantial gainful activity since the alleged onset of his disability. (Id.) According to

Page 3 of 18

the ALJ, Plaintiff’s left femur fracture, status post intramedullary nailing; left
acetabulum fracture, status post open reduction internal fixation; and trochanteric
tendonitis are considered “severe” based on the requirements set forth in the
regulations. (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. (Tr. at 27.) The ALJ did not find Mr. Smith’s allegations to be totally
credible, and he determined that he has the following residual functional capacity:
he is limited to sedentary work, frequently lifting up to ten
pounds; he can sit with normal breaks for a total of six hours in an
eight-hour workday, no greater than two hours at a time without
the ability to stand and change positions; he can stand and/or
walk for a total of two hours in an eight-hour workday, no greater
than fifteen minutes at a time without the ability to stand and
change positions; no limitations in the upper extremities for gross
manipulation or fine handling; pushing and pulling of foot
controls would be limited to occasionally; occasionally climb
ramps and stairs; occasionally balance, stoop (but not
repetitively), kneel, crouch; no work on ladders, ropes, scaffolds;
no manipulative limitations; avoid concentrated exposure to
extreme cold, wetness, and humidity; no heavy vibratory-type
jobs; no work around dangerous machinery or unprotected
heights; and the claimant would be limited to occupations that he
could perform with the use of only one upper extremity because
of the use of a cane.
(Tr. at 27-28.)
According to the ALJ, Mr. Smith is unable to perform any of his past relevant

Page 4 of 18

work, he is a “younger individual,” and he has a “limited education,” as those terms
are defined by the regulations. (Tr. at 31.) He determined that transferability of job
skills is not an issue in this case because the Medical-Vocational Rules framework
supports a finding that the Plaintiff is “not disabled.” (Id.) The ALJ found that Mr.
Smith has the residual functional capacity to perform a reduced range of sedentary
work. (Tr. at 31-32.) Even though Plaintiff cannot perform the full range of sedentary
work, the ALJ used Medical-Vocation Rule 201.25 and vocational expert testimony as
a guideline for finding that there are a number of jobs in the national economy that the
plaintiff is capable of performing, such as information clerk, assignment clerk, and
claims clerk. (Id.) The ALJ concluded his findings by stating that Plaintiff “has not
been under a disability, as defined in the Social Security Act, from April 9, 2010,
through the date of this decision.” (Tr. at 32.)
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,

Page 5 of 18

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. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed,
even if this 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).

Page 6 of 18

III.

Discussion
Mr. Smith alleges that the ALJ’s decision should be reversed and remanded for

two reasons. First, Plaintiff contends that substantial evidence does not support the
ALJ’s RFC finding because it was not based upon a medical source statement, because
the ALJ did not order a consultative examination and because the ALJ did not ask for
the opinion of a medical expert. (Doc. 9 at 8.) Second, he believes that the ALJ erred
in failing to find a threshold period of disability of at least twelve months. (Doc. 9 at 5.)
The Court will address these arguments in turn.
A.

The ALJ’s RFC Assessment

Plaintiff contends that substantial evidence does not support the ALJ’s RFC
finding because it was not based upon a medical source statement (MSS). The plaintiff
argues that an MSS is necessary to support the ALJ’s RFC because the ALJ is required
to “review and accord weight to medical opinions” and “avoid substituting his or her
judgment for that of a physician.” (Doc. 9 at 8.) An MSS is a “medical opinion[]
submitted by acceptable medical sources, including treating sources and consultative
examiners, about what an individual can still do despite a severe impairment[], in
particular about an individual’s physical or mental abilities to perform work-related
activities on a sustained basis.” SSR 96-5p, 61 Fed. Reg. 34471, 34473 (July 2, 1996).

Page 7 of 18

The plaintiff carries the general burden of proving his disability. 20 C.F.R. §
404.1512(a). The determination of an RFC is an administrative assessment, rather than
a medical issue. SSR 96-5p, 61 Fed. Reg. 34,471, 34,472 (July 2, 1996). The
Commissioner’s regulations make it clear that the responsibility for determining the
RFC is the ALJ’s, and it is based on all the evidence in the record rather than solely
medical evidence. See 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c). The lack of an MSS
on what the claimant can do despite his impairments will not make the record
incomplete. 20 C.F.R. § 404.1519n(c)(6). An MSS from a physician is not required
when there is sufficient other evidence in the record to support the ALJ’s
determination. See Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005) (the ALJ’s
discrediting of the treating chiropractor’s medical opinion did not invalidate the ALJ’s
opinion on disability because there was substantial other evidence to find that the
claimant was not disabled); Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997) (ALJ
properly determined claimant’s ability to do light work based on claimant’s testimony,
medical history, and activities, without an MSS).
In the instant case, sufficient evidence existed in the record to support the ALJ’s
RFC assessment. First, the plaintiff’s medical treatment history showed that Plaintiff’s
surgery was generally successful in relieving his symptoms. (Tr. at 273-93, 317-21.)

Page 8 of 18

Plaintiff began seeing Dr. Griffin, his treating physician, after he was discharged from
the hospital following the accident. On the first visit of May 5, 2010, Dr. Griffin noted
that the plaintiff was using a wheelchair and denied having significant hip or thigh pain.
(Tr. at 278.) On June 30, 2010, Dr. Griffin noted that the plaintiff was using a
wheelchair without complaints. (Tr. at 276.) Dr. Griffin’s medical examination
revealed that the plaintiff’s surgery incisions were well-healed, the swelling had
resolved, the plaintiff had a nontender calf and well-maintained motion in the ankle and
toes, he denied pain to passive range of motion in the hip, and his X-rays showed signs
of progressive healing. (Id.) Dr. Griffin told Plaintiff that he would be able to begin
weight bearing on July 14, 2010, suggested physical therapy to help with gait training
and strengthening, and refilled Plaintiff’s Lortab prescription at the plaintiff’s request.
(Id.)
On September 28, 2010, Dr. Griffin’s notes show that Plaintiff was ambulatory
with a walker and was making progress returning to functional activities. (Tr. at 290.)
Dr. Griffin noted that Plaintiff’s thigh swelling had resolved and he was nontender to
palpitation or range of motion in his hip, although he had some pain in his thigh region
with deep palpitation near his femur fracture. (Id.) Dr. Griffin noted that the X-rays
showed Plaintiff’s acetabular fracture was healed, but the femur fracture was not

Page 9 of 18

completely healed. (Id.) Dr. Griffin told the plaintiff that although his femur fracture
was not completely healed, he believed it would continue to consolidate and that no
further intervention would be required. (Id.) Dr. Griffin recommended that Plaintiff
continue weight bearing and prescribed Darvocet, recommending that Plaintiff wean
himself off the medication over time. (Id.)
Dr. Griffin indicated on his treatment notes for November 17, 2010, seven
months after the accident, that Plaintiff’s fractures were healed. (Tr. at 320.) He
instructed the plaintiff to wean himself off use of his cane as his gait pattern improved.
(Id.) He continued to prescribe Plaintiff Darvocet for pain, but only upon the plaintiff’s
request, and encouraged Plaintiff to take the medication on a sparing basis. (Id.) This
medical treatment history does not support the plaintiff’s contention that the
medication he took was ineffective or induced side effects. (Tr. at 47.) The medical
history provides no evidence that Plaintiff complained about ineffectiveness of his
medication to his treating physician, instead showing that the plaintiff continued to ask
for medication to be prescribed. (Tr. at 276, 320.) This medical history does provide
evidence that Plaintiff’s treatment was generally successful in treating his symptoms
and supports the ALJ’s RFC.
Second, the plaintiff testified that he had several limitations as a result of his

Page 10 of 18

accident, including an inability to stand for more than twenty minutes, inability to sit
for more than two hours, and inability to walk for long without having to stop. (Tr. at
46-47, 51.) The ALJ’s RFC is consistent with these limitations. (Tr. at 27-28.) The
plaintiff additionally testified that he needed to prop his leg up for around four hours
every day during standard working hours. (Tr. at 51-52.) No objective evidence exists
in the record to support the existence of these limitations, to the extent they are
inconsistent with the ALJ’s RFC, besides the plaintiff’s own testimony.
Third, Dr. Richard Whitney, the non-examining state agency medical
consultant, determined in his medical opinion that Plaintiff’s complaints concerning
problems “lifting, squatting, standing, walking, kneeling, stair climbing, and
completing tasks” were credible on the date of his RFC assessment, November 19,
2010, but were not expected to last 12 months after the alleged onset date. (Tr. at 314.)
State agency physicians are highly qualified physicians and are experts in Social
Security disability evaluations. 20 C.F.R. § 404.1527(e)(2)(I). Based on his
examination of the objective medical evidence, Dr. Whitney generated an RFC that
was less restrictive than the ALJ’s later RFC for light work. (Tr. at 310.) Dr. Whitney’s
opinion is an expert medical evaluation that provides evidentiary support for the ALJ’s
RFC, even though the ALJ only chose to give the opinion “some weight” because Dr.

Page 11 of 18

Whitney did not adequately consider the claimant’s subjective complaints. (Tr. at 31.)
The plaintiff also argues that the ALJ should have exercised his power to order
a consultative exam (CE) for the plaintiff. (Doc. 9 at 9-10.) While the ALJ does have
the power to order a CE, the regulations make it clear that the power is discretionary.
20 C.F.R. § 404.1519a(b) (“[w]e may purchase a consultative examination to try to
resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient
. . . .”); see also 20 C.F.R. § 416.917. It is reversible error for an ALJ not to order a CE
when such an evaluation is necessary to make an informed decision. Holladay v. Bowen,
848 F.2d 1206, 1209 (11th Cir. 1998). However, a CE is not required when the ALJ is
able to make an informed disability determination without ordering one. Id. at 1210.
The ALJ’s determination need not be made with absolute certainty; the standard of
review requires only substantial evidence to support his determination. Id. Sufficient
evidence exists in both the plaintiff’s medical history and in the plaintiff’s own
testimony concerning his limitations to support the ALJ’s determination, and therefore
the ALJ was not required to order a CE.
The plaintiff also draws attention to the ALJ’s power to ask for and consider the
opinion of a medical expert (ME). (Doc. 9 at 10.) The regulations make clear that the
power to ask for an ME, like the power to order a CE, is discretionary. 20 C.F.R. §

Page 12 of 18

404.1529(b) (“[t]he adjudicator(s) may ask for and consider the opinion of a medical
or psychological expert concerning whether your impairment(s) could reasonably be
expected to produce your alleged symptoms.”) The ALJ determined that the
“claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms.” (Tr. at 28.) It was not necessary for the ALJ to seek ME
testimony regarding whether Plaintiff’s impairments could reasonably be expected to
produce his symptoms when he had already reached a conclusion favorable to the
plaintiff on that issue.
An ALJ has the responsibility to assess RFC based on all the evidence in the
record, and the plaintiff generally has the responsibility of providing the evidence used
to determine the RFC. 20 C.F.R. § 404.1545(a)(3). When making his RFC finding, the
ALJ discussed all of the evidence on the record and included appropriate restrictions
based upon Plaintiff’s medical history and testimony. (Tr. at 28-31.) Substantial
evidence exists to support that RFC, and therefore the ALJ was not required to seek
an MSS, order a CE or seek ME testimony to further develop the record.
B.

Threshold Period of Disability

Plaintiff contends that the ALJ erred by finding that the Plaintiff was not disabled
for the threshold twelve-month period. (Doc. 9 at 5.) As a threshold matter to establish

Page 13 of 18

disability, the plaintiff must establish that he was unable to engage in any substantial
gainful activity because of a medically determinable physical or mental impairment
which can be expected to result in death, or that lasted or can be expected to last for a
continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). As discussed
above in Part A, substantial evidence supports the ALJ’s RFC that Plaintiff was able
to perform a range of sedentary work within twelve months, and therefore supports the
finding that Plaintiff did not satisfy the threshold period of disability. The ALJ found
that Plaintiff was not disabled from the time of the alleged onset date, April 9, 2010,
through the date of the decision, January 27, 2012, because there was substantial
gainful activity the plaintiff could still engage in. (Tr. at 32.) This finding therefore
necessarily includes a determination that Plaintiff was not disabled for the twelve
months following the alleged onset date.
On November 19, 2010, Plaintiff received a “durational” denial (Tr. at 70),
acknowledging that his condition was severe enough at that time to prevent him from
working but was expected to improve by twelve months after onset. (Tr. at 65.) As
noted, on that date Dr. Whitney generated an RFC assessment stating the plaintiff
could perform light work as of April 9, 2011. (Tr. at 309-16.) Plaintiff apparently argues
that the ALJ erred in assessing an RFC for the entire period at issue, and should have

Page 14 of 18

bifurcated his findings. (Doc. 9 at 8-9.) However, the plaintiff provides absolutely no
legal authority to support the contention that the ALJ should have bifurcated his RFC
or explicitly acknowledged the prospective nature of Dr. Whitney’s RFC assessment
on Nov. 19, 2010.
Plaintiff also contends that the ALJ erred in his analysis of the plaintiff’s visit to
Dr. Griffin, his treating physician, on November 17, 2010, the final visit within the
threshold period. (Doc. 9 at 6-7.) Plaintiff notes that Dr. Griffin said that the left femur
fracture was “apparently” healed, discussed the detrimental effects of tobacco use on
fracture healing, and asked Plaintiff to return in three to six months for repeat X-rays
and examination, indicating “at least some concern about whether the healing was
complete.” (Doc. 9 at 6-7.) While these specific lines in Dr. Griffin’s treatment report
may indicate some minor doubts about whether Plaintiff’s left femur fracture was fully
healed, it does not change the fact that Dr. Griffin also stated in this report that the
plaintiff’s fractures were healed, or that Plaintiff’s treatment history as a whole
supports the ALJ’s conclusion. (Tr. at 320.) The medical treatment history and
plaintiff’s testimony, as a whole, provide substantial evidence to support the ALJ’s
conclusion.
Plaintiff finally argues that the ALJ committed error by referring to the doctor’s

Page 15 of 18

visit of November 17, 2010 as the final visit to Dr. Griffin, and neglecting to mention
a subsequent visit on July 14, 2011. (Doc. 9 at 6-7.) The ALJ did discuss the July 14,
2011 visit on the record, but stated that the visit occurred in 2010 as opposed to 2011.
(Tr. at 29.) As an initial matter, it is not clear from the record whether or not the ALJ
misidentified the date of the visit. Although Dr. Griffin’s report is dated “07/14/11",
it also states that on the date of the visit the plaintiff was “3 months status post injury
and surgery,” which would have been July 2010, not July 2011. (Tr. at 318.) Even if
the visit did not occur until July 2011 and the ALJ misidentified the date, any factual
error here was harmless error because it did not affect the ALJ’s ultimate conclusion.
See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (holding that an ALJ’s factual
error is harmless if it does not affect the ALJ’s conclusion); Carson v. Commissioner of
Social Sec. Admin., 300 F. App’x 741, 743 n.3 (11th Cir. 2008) (ALJ’s incorrect
statement that Plaintiff saw a particular doctor only twice was harmless error where the
record does not indicate it affected the ALJ’s decision). Even if the ALJ misidentified
this visit as occurring during the threshold period when it did not, the doctor’s visit of
November 17, 2010 within that period stated similar conclusions as to the Plaintiff’s
condition. (Tr. at 29.) On both visits, Dr. Griffin reported his belief that the plaintiff’s
fractures were “solidly healed” or “healed,” reported that the plaintiff has 4+/5

Page 16 of 18

strength of the hip flexor and adductor muscle groups, and instructed the plaintiff to
continue with activities as tolerated. (Tr. at 318, 320.) Dr. Griffin reported on both
visits that the plaintiff had an antalgic gait on the left, had no pain in range of motion
of the hip, had a nontender calf and was neurovascularly intact distally. (Tr. at 318,
320.) The only significant difference between the two visits was that on July 14, 2010
or 2011, Dr. Griffin reported that the plaintiff had “trochanteric tendonitis.” (Tr. at
318.) However, he also reported that he did not believe there was “any concerning
ongoing pathology” and prescribed medication which he believed would relieve the
plaintiff’s symptoms. (Id.) More importantly than the similarities between the two
reports is that the ALJ’s ultimate determination of the plaintiff’s limitations was
entirely consistent with the limitations expressed by the plaintiff himself, aside from
the requirement that plaintiff’s leg be elevated. (Tr. at 27-28, 46-47, 51-52.) The ALJ’s
determination that this limitation was not consistent with the record was not affected
by any misidentification of the date of the July 14 doctors visit, and therefore any error
was harmless.
IV.

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

arguments, the Court finds the Commissioner’s decision is supported by substantial

Page 17 of 18

evidence and in accord with the applicable law. A separate order will be entered.
Done this 6th day of December 2013.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
174256

Page 18 of 18