Worley v. Social Security Administration, Commissioner
MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 5/22/2012. (AVC)
2012 May-22 PM 02:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WILLIAM KEITH WORLEY,
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
Case No.: 4:11-cv-1214-RDP
MEMORANDUM OF DECISION
On June 12, 2008, William Keith Worley ("Plaintiff"), applied for both disability
insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of
the Social Security Act (the "Act"). (R. 117, 137-38). Plaintiff alleges disability commencing
on October 15, 2007, because of chronic pain related to a series of work-related injuries. Id.
The Commissioner denied both claims. (R. 117-28).
Plaintiff filed a timely request for a hearing before an Administrative Law Judge ("ALJ"),
and the ALJ held a hearing on March 2, 2009. (R. 32-40). In a decision dated May 27, 2009, the
ALJ found that Plaintiff was not disabled as defined by the Act and, by extension, that Plaintiff
was ineligible for DIB and SSI. (R. 28-29).
On February 9, 2011, the Appeals Council denied Plaintiff's request for review;
consequently, the ALJ's decision became the final decision of the Commissioner of the Social
Security Administration. (R. 1-3). Plaintiff has exhausted his administrative remedies. As a
result, this court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§
405(g) and 1631(c)(3). Based upon the court's review of the record and the briefs submitted by
the parties, the court concludes that the decision of the Commissioner is due to be affirmed.
Plaintiff presents three related issues for remand:
(1) Whether the ALJ properly
concluded that he had the residual functional capacity ("RFC") to perform a significant number
of sedentary jobs; (2) whether, in determining his RFC, the ALJ properly engaged the necessary
function-by-function analysis of his work-related abilities; and (3) whether the ALJ improperly
declined to contact Dr. Adam Nortick, one of Plaintiff's treating physicians, for additional
evidence before reaching his decision.
STANDARD OF REVIEW
The standard of review of the Commissioner's decision is a limited one. This court must
find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C.
§ 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial evidence is more
than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable
person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389,
401 (1971). A reviewing court may not look only to those parts of the record that support the
decision of the ALJ, but instead must view the record in its entirety and take account of evidence
that detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th
Cir. 1986). As the Eleventh Circuit has counseled:
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner's] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner's] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). While the court acknowledges that
judicial review of the ALJ's findings is limited in scope, the court also notes that review "does
not yield automatic affirmance." Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). Legal
standards are reviewed de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to:
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment1 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
To make this determination, the Commissioner employs a five-step, sequential
evaluation. See 20 C.F.R. §§ 404.1520, 416.920.
Is the person presently unemployed?
Is the person's impairment severe?
Does the person'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 person unable to perform his or her former occupation?
Is the person unable to perform any other work within the
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."
A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).2 To establish disability, a claimant
has the burden of proving the first three steps, namely that (1) he is not engaged in substantial
gainful activity, (2) he has a severe impairment or combination of impairments, and (3) his
impairment or impairments meet or exceed the criteria in the Listings found in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. If the claimant cannot prove that he has a listed impairment, he must prove
alternatively that he is unable to perform his previous work. Jones v. Apfel, 190 F.3d 1224, 1228
(11th Cir. 1999); see also Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990). Once the
claimant shows that he cannot perform his previous work, the burden shifts to the Commissioner
"to show the existence of other jobs in the national economy which, given the claimant's
impairments, the claimant can perform." Jones, 190 F.3d at 1228.
Because Plaintiff alleges that one of his disabling conditions is pain, which is not a listed
impairment, the ALJ was required to apply the Eleventh Circuit pain standard to determine
whether Plaintiff is disabled by his pain and, by extension, is unable to perform previous work.
See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). This Circuit's pain standard requires:
evidence of an underlying medical condition and either
objective medical evidence that confirms the severity of the
alleged pain arising from that condition; or,
that the objectively determined medical condition is of such a
severity that it can be reasonably expected to give rise to the
Id. (emphasis added). While a reversal is warranted if the ALJ's decision contains no evidence
of the proper application of the three-part pain standard, the ALJ does not have to recite the pain
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) was a SSI case under Title II only. The same
sequence applies to DIB under Title XVI. Cases arising under Title II are appropriately cited as authority in
Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).
standard word-for-word. Id. Instead, the ALJ may make findings indicating application of the
Concurrent with the Eleventh Circuit pain inquiry, the ALJ must determine the claimant's
residual functional capacity ("RFC") to return to past relevant work or, alternatively, to perform
any other work within the economy. 20 C.F.R. § 404.1520(a)(4)(iv)-(v); Phillips v. Barnhart,
357 F.3d 1232, 1238 (11th Cir. 2004). Regulations define RFC, generally, as the level of
activity in which an individual may still engage despite the limitations of his or her impairments.
See 20 C.F.R. § 404.1545(a). In determining a claimant's RFC, the ALJ is compelled to evaluate
both "relevant medical evidence" and "descriptions and observations of [the claimant's]
limitations." 20 C.F.R. § 404.1454(a)(3). The ALJ must use this evidence to "identify [the
claimant's] functional limitations or restrictions and assess his or her work-related abilities on a
function-by-function basis . . . ." SSR 96-8p, 1996 WL 374184 (Jul. 2, 1996). Specifically, the
ALJ should assess the claimant's work-related physical abilities, mental abilities, and other
abilities affected by the impairments. Id. (citing 20 C.F.R. §§ 404.1545(b) – (d), 416.945(b) –
(d)). Based on the function-by-function analysis, the ALJ then determines the claimant's RFC on
a five-point Likert scale, the metrics of which are expressed in terms of exertional levels of
work: sedentary, light, medium, heavy, and very heavy. Id.
When applying the pain standard and determining a claimant's RFC, the ALJ must give
considerable weight to a treating physician's opinion. See Crawford v. Comm'r, 363 F.3d 1155,
1159 (11th Cir. 2004); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). As such, if the
evidence obtained from a treating physician is inadequate to sufficiently inform the pain standard
and RFC inquiries, the ALJ may contact the treating physician for clarification or additional
evidence. See 20 C.F.R. § 404.1512(e). A request for additional evidence from a physician is
appropriate only in the limited circumstances where (1) "the report from [the] medical source
contains a conflict or ambiguity that must be resolved," (2) "the report does not contain all the
necessary information," or (3) the report "does not appear to be based on medically acceptable
clinical and laboratory diagnostic techniques." Id.
When the body of reports is collectively adequate, however, "the [ALJ] may reject any
medical opinion," including a treating physician's, "if the evidence supports a contrary finding."
Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985). If the evidence supports such a contrary
finding, the ALJ must articulate specific reasons for rejecting the treating physician's opinion.
See Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
If, in the final analysis, the ALJ determines that the claimant retains the capacity to return
to previous work or to perform any other work within the economy, he must conclude that the
claimant is not disabled. If, on the other hand, the ALJ determines that the claimant lacks the
RFC to adjust to any level of gainful employment, the ALJ should conclude that the claimant is
FACTS AND PROCEEDINGS BELOW
Plaintiff has a high school education and was forty-two (42) years old at the time of the
administrative hearing. (R. 18, 80). His previous work experience includes employment as a
heavy equipment operator, a construction laborer, and an assembly line worker. Id. Plaintiff
alleges he is unable to work because of chronic, debilitating back pain resulting from multiple
compression fractures. At the administrative hearing, Plaintiff presented evidence that he also
suffers from dysthymic disorder. According to Plaintiff, his pain and related medical problems
began after an on-the-job accident in 2001. Id.
Plaintiff purports to have suffered four compression fractures to his lumbar spine while
operating a pavement scraper in September 2001.3 (R. 226). On November 29, 2001, Plaintiff
consulted Dr. John Featheringill, an orthopedic surgeon, complaining of sudden, severe surges of
back pain. (R. 222). Dr. Featheringill examined anteroposterior and lateral X-rays of Plaintiff's
lumbosacral spine and noted one or more fractures of the lumbar vertebrae. Id. According to
Dr. Featheringill, however, "all of the fractures appear[ed] to be nearly healed."
Featheringill ordered physical therapy to increase Plaintiff's mobilization and back mechanics.
On January 7, 2002, Plaintiff again consulted Dr. Featheringill with similar complaints of
shooting pain. Based on additional X-rays, Dr. Featheringill reported that Plaintiff's fractures
appeared "well-healed." An MRI revealed a disc protrusion, however, and Dr. Featheringill
ordered a myelogram of Plaintiff's spine and a post-myelogram CT. (R. 220-21). On January
15, 2001, Dr. Featheringill reviewed the results of these scans with Plaintiff: A "slight disc
bulge" at L5-S1 and "residual of the fractures," but "no bone fragments," "disc ruptures," or
"disc problems" in the affected areas. Id. Dr. Featheringill acknowledged Plaintiff's continued
problems with "limited mobility" (R. 216) and ordered "aggressive rehabilitation." Id.
Plaintiff resumed a limited schedule as a heavy equipment operator in February 2002. (R.
214). On February 28, 2002, Plaintiff returned to Dr. Featheringill, claiming no improvement in
Plaintiff provided no records to verify the specifics of his workplace injury. The earliest medical
records in evidence date from November 2001, and are described as "follow-ups" to diagnosis and treatment
of the workplace injury. (R. 222). Further, Plaintiff provided no records to verify his settlement of a
workmen's compensation claim. According to Plaintiff's testimony, he settled the claim for $17,000, paid
outright in 2003. (R. 89).
his pain. Id. In his report on the visit, Dr. Featheringill indicated that Plaintiff "had quite a bit of
difficulty" moving about the room and concluded that Plaintiff "did not generate enough
quadriceps power to support body weight." Id. Notably, though, Dr. Featheringill found this
demonstration "inappropriate, and probably due to lack of effort." Id. Further, Dr. Featheringill
declined to record a continued diagnosis of fractures to lumbar vertebrae. See id. Lacking any
further treatment options, Dr. Featheringill recommended a neurosurgical consultation. Id.
Plaintiff again returned to Dr. Featheringill on April 23, 2002, reporting severe pain
while working. (R. 212). During the visit, Dr. Featheringill reviewed data from Dr. Johnson, a
chiropractor who previously evaluated Plaintiff. Id. In his report, Dr. Featheringill concurred
with Dr. Johnson, finding "no reason for the patient to have the non-anatomic complaints of pain
that he has." Id. Dr. Featheringill recommended that Plaintiff seek another treating physician,
and he referred Plaintiff to a pain management specialist.
He expressly declined to
recommend vertebroplasty, noting that Plaintiff's fractures had "healed well." Id.
On May 24, 2002, Plaintiff visited Dr. Robert Q. Craddock, a neurosurgeon, reporting
two workplace injuries—one on September 19, 2001, and another on April 22, 2002. (R. 226).
Dr. Craddock recorded "mild restriction in [Plaintiff's] range of motion in his neck," as well as
some evidence of "degenerative disc disease" and "bulging at L5-S1" from Plaintiff's scans on
file. (R. 226-27). Based on these findings, Dr. Craddock ordered a new lumbar MRI and a new
cervical MRI. On June 13, 2002, Dr. Craddock reported that Plaintiff's "cervical spine films
show degenerative disc disease [and] some bulging and osteophytes at C4-5 and C6-7, but no
disc herniation or surgical lesion." (R. 225). Similarly, Plaintiff's MRIs showed "some disc
bulging at L4-5 and L5-S1, but no herniation or any sort of surgical lesion . . . ." Id. Dr.
Craddock referred Plaintiff for an epidural and pain management. Id.
Between January and June 2006, Plaintiff made monthly visits to The Doleys Clinic, a
pain and rehabilitation center.
On a scale of one to ten (ten being the worst), Plaintiff
consistently reported a current pain level between four and six, a maximum pain level of seven,
and a minimum pain level between three and four. (R. 230, 232, 234, 236, 238). Dr. Lisa
Columbia, a pain specialist at The Doleys Clinic, diagnosed Plaintiff with chronic low back pain,
chronic neck pain, chronic cervical spine pain, headaches, thoracic spine pain, depression, stress
and anxiety, and reflex sympathetic dystrophy in the upper right extremity. (R. 231, 233, 235,
237, 239). To treat these conditions, Dr. Columbia prescribed a regimen of OxyContin and
On June 22, 2006, Dr. Daniel Doleys, principal clinical psychologist at The Doleys
Clinic, noted that Plaintiff's monthly drug screen failed to appropriately reflect Dr. Columbia's
prescription for oxycodone. (R. 229). Dr. Doleys also recorded improvement in Plaintiff's
general condition; in turn, Dr. Doleys recommended that Dr. Columbia discontinue prescription
of oxycodone products. Id.
On October 5, 2007, Plaintiff presented to Christian Medical Clinics, a general and
family practice, where he consulted Dr. Barry McCleney. (R. 241). Plaintiff complained of
continuing pain and reported that he recently reinjured his back by "turn[ing] the wrong way."
Id. Dr. McCleney prescribed a Medrol Dosepak to reduce inflammation and Flextra DS for pain.
(R. 242). He also ordered a shot of Toradol to alleviate Plaintiff's pain in the short-term. Id. Dr.
McCleney explained to Plaintiff that neither he nor his clinic handled chronic pain management,
and he referred Plaintiff back to Dr. Craddock, the neurosurgeon.
After filing for DIB and SSI on June 12, 2008, Plaintiff met with Dr. James Matic, a
family practitioner, for a consultative medical examination. (R. 244-45). Dr. Matic reviewed
two X-rays of Plaintiff's lumbosacral spine, noting "early degenerative changes in the form of
bone spurs at L5-S1." (R. 245). Likewise, Dr. Matic identified a "decreased range of motion by
one-third in all planes [of the lumbar spine] associated with moderate pain." Id. Apart from this
limited diagnosis, however, Dr. Matic observed that Plaintiff maintained a "full range of motion"
in his upper extremities, his lower extremities, and his cervical spine, as well as a normal gait.
Id. Dr. Matic assessed Plaintiff as suffering from chronic pain, depression, sympathetic
dystrophy of the left hand, and migraine headaches. Id.
That same day, Plaintiff also met with Dr. William Belidleman, a clinical psychologist,
for a consultative psychological evaluation. (R. 247-49). Following a lengthy interview, Dr.
Belidleman diagnosed Plaintiff with "dysthymic disorder, late onset," resulting from his
"physical problems, as well as psychological stressors." (R. 249). Dr. Belidleman further
indicated that Plaintiff's "[p]rognosis for favorable response to treatment is poor given that he is
in no mental health treatment and taking no medications." Id. Dr. Belidleman determined
Plaintiff's Global Assessment of Functioning ("GAF") score to be 58. Id.
On September 3, 2008, Dr. R. Glenn Carmichael, a neurologist, reviewed Plaintiff's
medical records for the Disability Determination Service ("DDS"). (R. 250). According to Dr.
Carmichael, Plaintiff suffers from lumbar spondylosis and early degenerative changes of the
lumbar spine, resulting in some limitation of his range of motion. Id. Dr. Carmichael noted
Plaintiff's previous diagnosis of lumbar compression fractures, as well as resolution of that
diagnosis in 2002. Id. Based on this assessment, Dr. Carmichael recommended "medium RFC
with safety precautions" to the DDS. Id.
On February 9, 2009, Dr. Adam Nortick, an emergency medicine specialist, completed a
multiple-choice questionnaire prepared by Plaintiff's attorneys.4
indicated that Plaintiff's pain was "virtually incapacitating" and that physical activity would
likely increase Plaintiff's pain "to such an extent that bedrest [sic] and/or medication is
(R. 283). Dr. Nortick further indicated that Plaintiff's medication would produce
severe side effects; yet, Dr. Nortick failed to indicate what medications, if any, Plaintiff was
taking. (R. 284). Dr. Nortick attested that Plaintiff's underlying medical conditions support his
complaints of pain, but again, Dr. Nortick failed to offer any detailed assessment of any such
underlying conditions. Id.
The Administrative Hearing
After the Commissioner denied Plaintiff's application for DIB and SSI, Plaintiff
requested a hearing before an ALJ. (R. 10-11). At the hearing, Plaintiff confirmed that he
suffered an on-the-job injury in 2001, that he was treated by emergency room physicians
immediately following the injury, and that he settled the resulting workman's compensation
claim in 2003. (R. 81-83). Plaintiff testified that he briefly returned to his job as a heavy
equipment operator after his injury, but stated he "couldn't do the jobs that [his employers] were
wanting [him] to do." (R. 84). According to Plaintiff, residual pain from his injury made it
difficult for him to turn his head from side to side, sit, look behind, or maintain comfort,
generally. (R. 85). Plaintiff confirmed that he had not attempted any type of work other than
machine operation or construction since his injury. Id.
The worksheets are conspicuously marked with the phrase "Form Drafted and Submitted by Clark
James Hanlin & Hunt L.L.C.," which is Plaintiff's counsel of record. Apart from these worksheets, Plaintiff
offered no records of, or notes from, a consultation with Dr. Nortick.
Plaintiff testified that he could drive short distances without pain. (R. 86-87). However,
drives longer than 30 to 45 minutes cause pain in his back and shoulders. (R. 87). Plaintiff
explained that the pain stems "from the vibrations, and moving the steering wheel . . . ." Id.
Plaintiff further revealed that several years prior, the State of Alabama suspended his driver's
license for failure to pay a traffic ticket; as such, he cannot legally drive. (R. 86).
Plaintiff confirmed that he was not consulting a physician on any regular basis because of
When last he visited Dr. McCleney—in October 2007—he
borrowed the cost of the visit from a relative. Id. Similarly, Plaintiff confirmed that because he
could not afford any prescription medications, he treated his symptoms with a combination of
over-the-counter pain relievers and home remedies, including heating pads and hot showers. (R.
Discussing mobility, Plaintiff indicated that he was fully able to care for his own
hygiene needs and that he could dress himself without assistance. (R. 89). He could not get in
and out of a bathtub by himself, however, and he often required help tying his shoelaces. Id.
According to Plaintiff, pain radiated from his lower back up through his shoulders and
neck, and down through his hips and legs. (R. 89-91). Further, his upper-body pain regularly
culminated in a migraine headache late in the day. (R. 91-92). Plaintiff testified that as a result
of his pain, he had difficulty sitting still, standing still, and sleeping. (R. 93-94). Plaintiff stated
that on an average day, he could sit for 30 to 45 minutes before having to stand and move about,
and he could walk for about seven minutes before having to rest. (R. 93-94). Through an
average night, Plaintiff woke up several times as a result of his pain. Id.
Plaintiff confirmed that the treatment provided by Drs. Columbia and Doleys alleviated
his pain substantially, but not completely. (R. 95). Plaintiff indicated that he stopped taking the
OxyContin prescribed to him by Dr. Columbia "because [he] got scared of them," not because of
any adverse side effects. (R. 95). Plaintiff further indicated that his condition, over time, caused
him to become depressed. (R. 96).
Plaintiff testified that his fiancé, with whom he was cohabitating, was largely responsible
for household maintenance, including grocery shopping, cooking, and cleaning. (R. 97-101).
Plaintiff also confirmed that his fiancé's job as a retail clerk was the sole source of their
household income apart from food stamps. (R. 101).
Plaintiff reported that on an average day, his pain ranked between four and six on a scale
of one to ten (ten being the worst), and that he could likely lift ten pounds without additional
pain. (R. 98-99, 102). Attempting to lift more than ten pounds, however, would increase pain in
his lower back, he stated. (R. 102). Plaintiff also indicated that he could not stoop or squat, and
that he experienced trouble climbing stairs. (R. 103). Plaintiff stated that the pain in his neck
and lower back were steadily increasing over time, and that if he only had insurance, he would
"get things taken care of." (R. 105).
Dr. David Head, a vocational expert ("VE"), offered testimony on (1) Plaintiff's ability to
return to previous work, and (2) the type and availability of jobs Plaintiff could feasibly perform.
Consulting the U.S. Department of Labor's Dictionary of Occupational Titles, Dr. Head reported
that Plaintiff's past work as a heavy equipment operator qualified as semi-skilled and required a
medium level of exertion. (R. 107). According to Dr. Head, however, these skills do not
transfer below the medium exertional level or outside of the specific industry. Id. Dr. Head
further reported that Plaintiff's past work as a construction laborer and as a furniture assembler
both qualified as semi-skilled and required a heavy level of exertion. (R. 107-108). As before,
though, Dr. Head determined that these skills do not transfer below the medium exertional level
or outside of their specific industries. Id. In turn, Dr. Head concluded that Plaintiff was not able
to return to any of his past relevant work. (R. 111).
The ALJ posed a hypothetical question regarding an individual of Plaintiff's age,
education, and background who can perform a medium range of work, but who is limited to
occasional bending, occasional climbing, no driving or operation of vibrating machinery, and no
pushing or pulling of the upper or lower extremities. (R. 109). Responding to this hypothetical,
Dr. Head concluded that such an individual would have no opportunity for work requiring a
medium level of exertion, but that the individual would have an opportunity for a limited range
of light work and a broad range of sedentary work. (R. 109-10). According to Dr. Head,
"[e]xamples of unskilled, entry level, light jobs would include cashier; tending and off-bearing at
waist level, such as on an assembly line; retail sale[s] . . . and food service." Id. In the unskilled,
light range, Alabama employs more than 2,000 cashiers; more than 1,200 tending and offbearing workers; more than 2,500 retail sales workers; and more than 1,800 food service
workers. Id. Dr. Head further stated that "sedentary jobs would include non-complex clerical
jobs, such as information clerk, hosting clerk, [or] telephone-answering clerk," as well as "jobs
in assembly at a non-production level" and jobs in "inspecting and sorting." (R. 110). Alabama
employs more than 2,300 non-complex clerical workers; more than 1,200 non-production
assembly workers; and more than 1,000 inspecting and sorting workers. Id. According to Dr.
Head, Plaintiff could perform the functions of any of these jobs. Id.
The ALJ then modified the hypothetical, requiring for the individual the option for sitting
and standing at will. (R. 111). Dr. Head responded that the need to sit for more than two hours
per day would preclude all work at the light exertional level and would substantially reduce the
number of available jobs at the sedentary exertional level. Id. "[A]s long as work in intervals
for 45 minutes to an hour in either posture could be tolerated," Dr. Head stated, "the number [of
available sedentary jobs] would be reduced [in total] from 4,500 to 3,200." (R. 112).
The ALJ then removed the sit-stand limitation, but restricted the hypothetical individual
to no bending or squatting. Id. Dr. Head responded that this wholesale mobility restriction
would preclude all work. Id. The ALJ further questioned the availability of work that would
permit an individual to lie down during work hours for periods between 45 minutes and three
Dr. Head responded that this requirement also would preclude all work.
Discussing the general ten-point pain scale (ten being the worst), Dr. Head reasoned that levels
six through ten would encompass "moderately-severe" and "severe pain," both of which would
preclude all work activity. (R. 113).
The Administrative Decision
On May 27, 2009, the ALJ issued a decision finding Plaintiff not disabled under Sections
216(i), 223(d), and 1614(a)(3)(A) of the Act.
The ALJ's findings of fact and
conclusions of law followed the five-step legal standard outlined in 20 C.F.R. §§ 404.1520,
First, the ALJ found that Plaintiff had not engaged in any substantial gainful activity
since the alleged onset of his disability. (R. 28). Next, the ALJ determined that Plaintiff's
conditions—chronic pain of the cervical, thoracic, and lumbar spine, headaches, reflex
sympathetic dystrophy of the right upper extremity, and dysthymic disorder—qualify as severe
impairments. Id. However, these impairments do not, either alone or in combination, manifest
the specific signs and diagnostic findings required by the Listing of Impairments. Id.
Advancing to step four, the ALJ considered Plaintiff's subjective allegations of pain to
determine whether Plaintiff maintained the RFC to perform past relevant work. (R. 24-27). The
ALJ concluded that "the evidence as a whole fails to confirm disabling limitations arising from
[Plaintiff's] impairments, and his impairments are not of such severity that they could reasonably
be expected to give rise to disabling limitations . . . ." (R. 28).
In support of this conclusion, the ALJ authored an exhaustive time line of Plaintiff's
relevant medical history, ultimately noting that "[n]one of [Plaintiff's] treating physicians," save
Dr. Nortick, "has reported that [Plaintiff suffers from] disabling pain or limitations." (R. 24).
Moreover, the ALJ emphasized that while each of Plaintiff's treating and consulting physicians
acknowledged some degree of limitation stemming from his previous injuries, each physician
(again, save Dr. Nortick) expressly declined to confirm the severity of pain alleged by Plaintiff.
The ALJ deferred heavily to the consensus of Drs. Featheringill, Johnson, and Craddock,
all of whom "saw no reason for [Plaintiff] to have the non-anatomic complaints of pain that he
Likewise, the ALJ assigned considerable weight to Plaintiff's monthly self-
assessments recorded by Drs. Columbia and Doleys, in which Plaintiff consistently reported a
current pain level of four on a scale of one to ten (ten being the worst). According to the ALJ,
"[t]his is no more than mild to moderate pain, indicating that [Plaintiff's] pain was well
controlled [sic] with medication at that time." (R. 24-25).
In the administrative decision, the ALJ also accounted for Plaintiff's daily activities,
symptoms, and treatments. Citing Plaintiff's interview with Dr. Belidleman, the ALJ emphasized
that Plaintiff spent most days "trying to help around the house, watching television, doing a
website, doing research on the computer, and spending time with family." (R. 25). Per the ALJ,
"[t]hese activities are not inconsistent with the ability to perform a range of sedentary work on a
sustained basis." Id. Further, the ALJ noted that Plaintiff stopped taking his prescription
medications of his own accord, not because of any adverse side effects. Since June 2006,
Plaintiff has, by choice, treated his pain with over-the-counter medications. Id. The ALJ found
these facts inconsistent with Plaintiff's allegations of frequent, severe migraine headaches and
disabling pain. Id.
The ALJ then directly addressed the clinical assessment forms submitted by Dr. Nortick,
the contents of which comprise the only evidence in support of Plaintiff's allegations of severe,
disabling pain. Evaluating this evidence, the ALJ stated:
The only physician who has reported that [Plaintiff] had disabling pain or
limitations is Dr. Nortick, but there is no evidence that he has treated [Plaintiff],
nor [sic] that he has even examined [Plaintiff]. . . . Although Dr. Nortick reported
in the clinical assessment of pain form and in the clinical assessment of
fatigue/weakness [form] that [Plaintiff] had an underlying medical condition
consistent with [the] pain and fatigue/weakness [that Plaintiff] experienced, [Dr.
Nortick] did not indicate what that medical condition was. He gave no diagnosis.
He [also] reported that [Plaintiff]'s prescribed medication side effects could be
expected to be severe and to limit effectiveness due to distraction, and attention,
and drowsiness [sic], but [Plaintiff] takes no prescribed medication. . . . [In turn,]
I assign the opinions of Dr. Nortick little weight, because they are unsupported
and inconsistent with the record as a whole.
In sum, the ALJ acknowledged that the evidence supports the conclusion that Plaintiff
suffers from an underlying medical condition capable of producing pain and related limitations.
Viewing the record as a whole, however, the ALJ concluded that "substantial evidence . . . does
not confirm [that Plaintiff suffers] disabling pain or limitations arising from those conditions, nor
[sic] does it support [the conclusion] that the objectively determined medical conditions are of
such severity that they could reasonably be expected to give rise to disabling pain and other
limitations." (R. 26-27).
Drawing on the testimony of Dr. Head, the VE, the ALJ ultimately concluded that
Plaintiff (1) lacked the RFC to return to any past work, but (2) retained the RFC to "perform
sedentary work which allows him to alternate between sitting and standing; no more than
occasional bending, stooping, and climbing; no driving or operation of vibrating machinery; and
no pushing and pulling with the upper and lower extremities." (R. 26-29). As a result, the ALJ
determined that Plaintiff is not disabled within the meaning of the Act, and he is not eligible for
DIB or SSI.
Plaintiff contends that the ALJ improperly disregarded the weight of substantial evidence
in determining that he retained the ("RFC") to perform a range of sedentary work. As part of
this broad contention, Plaintiff argues that (1) the ALJ improperly reached his RFC
determination without engaging the necessary function-by-function analysis of Plaintiff's workrelated abilities, and (2) the ALJ improperly declined to contact Dr. Nortick, one of Plaintiff's
treating physicians, for additional evidence before determining Plaintiff's RFC. To the contrary,
the court finds that the ALJ did, in fact, engage the necessary function-by-function analysis, and
that because the full body of medical records was collectively adequate, the ALJ was not
obligated to contact Dr. Nortick for additional evidence. The court further finds that the ALJ
sufficiently qualified his evaluation of Dr. Nortick's records in light of substantial contrary
evidence. In turn, the court concludes that substantial evidence supports the ALJ's determination
of Plaintiff's RFC.
Substantial Evidence Supports the ALJ's Function-by-Function Analysis of
Plaintiff's Work-Related Abilities
Plaintiff correctly notes that the Social Security Administration has released policy
interpretations dictating the required pattern of analysis for determining a claimant's RFC. See
SSR 96-8p, 1996 WL 374184 (Jul. 2, 1996) (regarding RFC for initial claims); SSR 96-9p, 1996
WL 374185 (Jul. 2, 1996) (regarding RFC for less than a full range of sedentary work).
Specifically, Plaintiff recites that the RFC determination requires a "function-by-function
assessment based upon all of the relevant evidence of an individual's ability to perform workrelated activities." SSR 96-9p. Plaintiff argues, in turn, that the ALJ failed to engage this
function-by-function assessment of Plaintiff's work-related abilities, and, by so doing, the ALJ
committed reversible error.
The ALJ did not include in his decision a subsection titled "Function-by-Function
Analysis;" nevertheless, the sum and substance of the ALJ's opinion shows that the ALJ
responded thoroughly to the required inquiries.
The ALJ exhaustively covered Plaintiff's
physical and mental limitations through the lengthy discussion of Plaintiff's relevant records and
testimony, and the ALJ sufficiently covered Plaintiff's physical and mental abilities through the
discussion of Dr. Head's VE testimony.
Rulings 96-8p, 96-9p, and their progeny merely require that the ALJ's opinion
demonstrate consideration of all the evidence relevant to Plaintiff's work-related abilities. Dyer
v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam). Just as the ALJ need not
"specifically refer to every piece of evidence in his decision," he need not expressly label every
portion of his analysis.
In short, the ALJ complied with the broad procedural
requirements of Rulings 96-8p and 96-9p and based his RFC determination on substantial
Substantial Evidence Supports the ALJ's Credibility Determination Adverse
to Dr. Nortick, and the ALJ Properly Declined to Contact Dr. Nortick for
Plaintiff correctly notes that the ALJ should give considerable weight to a treating
physician's opinion in applying the pain standard and determining a claimant's RFC.
Crawford v. Comm'r, 363 F.3d 1155, 1159 (11th Cir. 2004); Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997). Relying largely on this general rule, Plaintiff contends that the ALJ erred
by (1) assigning diminished weight to Dr. Nortick's opinions, as expressed in the Clinical
Assessment of Pain and Clinical Assessment of Fatigue/Weakness worksheets, and (2)
substituting his own judgment for Dr. Nortick's in determining his RFC.
Plaintiff's arguments ignore the full scope of the relevant rule: "It is well-established that
the testimony of a treating physician must be given substantial or considerable weight unless
good cause is shown to the contrary." Crawford, 363 F.3d at 1159 (emphasis added). Good
cause to mitigate the weight given a treating physician's opinion arises where a report "is not
accompanied by objective medical evidence or is wholly conclusory." Id. The ALJ may also
reject a treating physician's opinion when it is directly contradicted by objective medical
evidence. Ellison v. Barnhart, 355 F.3d 1272, 1275-76 (11th Cir. 2003).
In the instant case, the ALJ had good cause to devalue Dr. Nortick's opinion, and the ALJ
sufficiently articulated that cause in his written decision: "The only physician who has reported
that [Plaintiff] had disabling pain or limitations is Dr. Nortick, but there is no evidence that he
has treated [Plaintiff], nor [sic] that he has even examined [Plaintiff]." (R. 26). Expressed in
terms of the Crawford standard, the ALJ discounted Dr. Nortick's conclusions because they were
not accompanied by objective medical evidence (i.e., supporting documentation). See 363 F.3d
at 1159. The ALJ continued, stating: "[Dr. Nortick also] reported that [Plaintiff]'s prescribed
medication side effects could be expected to be severe and to limit effectiveness due to
distraction, and attention, and drowsiness [sic], but [Plaintiff] takes no prescribed medication."
(R. 26). Expressed in terms of the Ellison standard, the ALJ further discounted Dr. Nortick's
conclusions because they were directly contradicted by objective medical evidence (i.e.,
Plaintiff's lack of any prescription medication regimen). See 355 F.3d at 1275-76.
In addition to this express consideration of Dr. Nortick's opinions, the ALJ also discussed
in detail the host of other physicians' opinions in the record, all of which directly counter Dr.
Nortick's conclusions. Specifically, the ALJ cited the records of (1) Dr. Featheringill, who
concurred with Dr. Johnson in finding "no reason for [Plaintiff] to have the non-anatomic
complaints of pain that he had;" (2) Dr. Craddock, who identified no treatable lesions and
referred Plaintiff for pain management; (3) Drs. Doleys and Columbia, who noted sufficient
improvement in Plaintiff's condition to discontinue prescription of OxyContin products; and (4)
Dr. Matic, who acknowledged Plaintiff's mobility problems but expressly declined to diagnose
Plaintiff with disabling pain or limitations. (R. 24). Records from Plaintiff's interview with Dr.
Belidleman, which relay Plaintiff's own account of his less-than-idle daily activities, further
corroborate these conclusions. In sum, the vast majority of objective medical evidence on record
directly contradicts Dr. Nortick's responses to the questions on the pain and fatigue/weakness
worksheets, and pursuant to the Crawford and Ellison standards, the ALJ properly discounted
the weight assigned to Dr. Nortick's otherwise unsupported conclusions.
In addition to arguing that the ALJ improperly diminished the weight assigned to Dr.
Nortick's opinions, Plaintiff further contends that the ALJ improperly substituted his own
judgment for that of relevant medical authority in determining his RFC. This proposition is not
only erroneous, it is also misplaced. As noted immediately above, the ALJ's determination of
Plaintiff's RFC is, in fact, well grounded in the prevailing consensus of Plaintiffs' treating
physicians, and the ALJ's decision to discount the outlying opinion of one physician is supported
by controlling case law.
Second, and perhaps more importantly, the RFC finding is, by
definition, not a medical assessment; rather, it is an administrative determination. See 20 C.F.R.
§§ 404.1527(e), 404.1545(a), 416.927(e), 416.945(a).
Given this distinction, the ALJ's
determination of Plaintiff's RFC should be informed by the record as whole, not just by the
medical evidence of any one physician or group of physicians. See Green v. Soc. Sec. Admin.,
223 Fed. Appx, 915, 923 (11th Cir. 2007) (rejecting the argument that the ALJ had no basis for
an RFC finding after discounting the opinion of a treating physician).
According to the Eleventh Circuit in Green, an ALJ may reject the opinion of a treating
physician and rely on the remaining evidence—medical or otherwise—to determine a claimant's
RFC. Id. at 924. Such was precisely the case here. The ALJ properly discounted the outlying,
unsupported opinion of Dr. Nortick and relied on the remaining (substantial) evidence to
determine Plaintiff's RFC.
In a final effort to resurrect the contents of Dr. Nortick's assessment worksheets, Plaintiff
contends that the ALJ was obligated to contact Dr. Nortick for additional evidence. This
argument, too, is misplaced. An ALJ may contact a treating physician for additional evidence
only in the limited circumstances where the physician's records are inadequate. See 20 C.F.R. §
404.1512(e). According to the controlling regulation, records are inadequate only when (1) "the
report from [the] medical source contains a conflict or ambiguity that must be resolved," (2) "the
report does not contain all the necessary information," or (3) the report "does not appear to be
based on medically acceptable clinical and laboratory diagnostic techniques." Id. Here, Dr.
Nortick's forms contained no ambiguities, they lacked no necessary information, and they
contained no description of potentially unacceptable techniques. As a result, the ALJ was under
no obligation to contact Dr. Nortick for additional evidence.
By all appearances, it seems Plaintiff argues that the ALJ's determination adverse to Dr.
Nortick's credibility implies by extension that Dr. Nortick's records were inadequate. Very
simply, these two findings are not related. The ALJ discounted Dr. Nortick's opinion following
an exhaustive discussion of (1) the lack of objective evidence supporting Dr. Nortick's
conclusions, and (2) the weight of substantial evidence contrary to those conclusions. Plaintiff
may not mask his failure to satisfy the burden of proving his disability by casting as inadequate
the only record (among dozens) that supports his position, thereby shifting the deficiency to the
ALJ. Dr. Nortick's records were unsupported by, and inconsistent with, the record as a whole.
Plaintiff offers no evidence or authority supporting the conclusion that Dr. Nortick's records
were inadequate within the meaning of 20 C.F.R. § 404.1512(e). As such, the ALJ properly
declined to contact Dr. Nortick for additional evidence.
For the reasons stated, this court concludes that substantial evidence and good cause
support the decision of the Commissioner and it is due to be affirmed. The court will enter a
DONE and ORDERED this
day of May, 2012.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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