Kyle v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 12/20/2013. (JLC)
2013 Dec-20 AM 11:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THOMAS EDWARD KYLE,
) Case No.: 4:12-CV-3556-VEH
CAROLYN W. COLVIN,1
Plaintiff Thomas Edward Kyle brings this action under 42 U.S.C. § 405(g),
Section 205(g) of the Social Security Act. He seeks review of a final adverse
(“Commissioner”), who denied his application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”).2 Mr. Kyle timely pursued and
Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acting Commissioner
Carolyn W. Colvin should be substituted for Commissioner Michael J. Astrue as the Defendant
in this suit. (“Any actions instituted in accordance with this subsection shall survive
notwithstanding any change in the person occupying the office of Commissioner of Social
Security or any vacancy in such office.”).
In general, the legal standards applied are the same regardless of whether a claimant
seeks Disability Insurance Benefits (“DIB”) or Supplemental Security Income (“SSI”).
However, separate, parallel statutes and regulations exist for DIB and SSI claims. Therefore,
citations in this opinion should be considered to refer to the appropriate parallel provision as
context dictates. The same applies to citations of statutes or regulations found in quoted court
exhausted his administrative remedies available before the Commissioner. The
case is ripe for review under 42 U.S.C. § 405(g).3
FACTUAL AND PROCEDURAL HISTORY
Mr. Kyle was 43 years old at the time of the administrative hearing before
the Administrative Law Judge (“ALJ”). (Tr. 56). He has completed the ninth
grade. (Tr. 238).4 He has past relevant work as roofer, roofer helper, stock clerk,
duct layer helper, plumber helper, and an automobile mechanic helper. (Tr. 39).
He claims he became disabled on November 1, 2008, due to: back and shoulder
pain and blindness in his right eye. (Tr. 235). His last period of work ended on
October 1, 2008. Id.
On March 13, 2009, Mr. Kyle protectively filed a Title II application for a
period of disability and DIB. (Tr. 31). He also protectively filed a Title XVI
application for SSI on February 18, 2009.
On June 12, 2009, the
Commissioner initially denied these claims. Id. Mr. Kyle then filed a written
request for a hearing on June 30, 2009. Id.
The ALJ conducted a hearing on the matter on November 10, 2010. Id. On
February 7, 2011, he issued his opinion concluding Mr. Kyle was not disabled and
42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.
Although Mr. Kyle listed the ninth grade as his highest grade completed, his medical
reports indicate at multiple times that he had a tenth grade education. See, e.g., (Tr. 320).
denying him benefits. (Tr. 41). Mr. Kyle timely petitioned the Appeal Council to
review the decision on February 22, 2011. (Tr. 26). On August 15, 2012, the
Appeals Council denied a review on his claim. (Tr. 1-3).
Mr. Kyle filed a Complaint with this court on October 9, 2012. (Doc. 1).
The Commissioner answered on January 22, 2013. (Doc. 7). Mr. Kyle filed a
supporting brief (Doc. 10) on March 5, 2013, and the Commissioner responded
with her own brief (Doc. 11) on April 8, 2013. With the parties having fully
briefed the matter, the court has carefully considered the record and affirms the
decision of the Commissioner.
STANDARD OF REVIEW
The function of this court is to determine whether the decision of the
Commissioner is supported by substantial evidence and whether proper legal
standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971);
McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Graham v. Bowen,
790 F.2d 1572, 1575 (11th Cir. 1983); Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983). This court must “scrutinize the record as a whole to
determine if the decision reached is reasonable and supported by substantial
evidence.” Bloodsworth, 703 F.2d at 1239. This court will determine that the
ALJ’s opinion is supported by substantial evidence if it finds “such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. 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) (citation omitted). The ALJ’s legal conclusions,
however, are reviewed de novo, because no presumption of validity attaches to the
ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala,
985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s
application of the law, or if the ALJ fails to provide the court with sufficient
reasoning for determining that the proper legal analysis has been conducted, the
ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46
(11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his entitlement for a period of
disability, the claimant must be disabled as defined by the Social Security Act and
the Regulations promulgated thereunder.5 The Regulations define “disabled” as
the “inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, as current through October 18, 2013.
less than [twelve] 12 months.”
20 C.F.R. § 404.1505(a).
To establish an
entitlement to disability benefits, a claimant must provide evidence of a “physical
or mental impairment” which “must result from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable clinical
and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a
claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(I-v). The Commissioner must
determine in sequence:
(1) whether the claimant is currently employed;
(2) whether the claimant has a severe impairment;
(3) whether the claimant's impairment meets or equals an impairment
listed by the [Commissioner];
(4) whether the claimant can perform his or her past work; and
(5) whether the claimant is capable of performing any work in the
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561,
562–63 (7th Cir.1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th
Cir.1986). The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, [he] will automatically
be found disabled if [he] suffers from a listed impairment. If the claimant
does not have a listed impairment but cannot perform [his] past work, the
burden shifts to the [Commissioner] to show that the claimant can perform
some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th
Cir.1995). The Commissioner must further show that such work exists in the
national economy in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
First, the ALJ found that Mr. Kyle met the insured status requirements of the
Social Security Act through December 31, 2014, and had not engaged in
substantial gainful activity since November 1, 2008, the alleged onset date. (Tr.
He then found that Mr. Kyle had the following severe impairments:
degenerative disease in both shoulder joints verified by MRI, chronic obstructive
pulmonary disease, and blindness in the right eye. Id. However, he concluded that
Mr. Kyle did not have an impairment or combination of impairments that met or
medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 35).
Next, the ALJ determined that Mr. Kyle retained the residual functional
capacity (“RFC”) to perform light work, except that the claimant could sit for six
hours in an eight hour work day with normal breaks and stand and walk for six
hours in an eight hour work day with normal breaks. Id. With his right shoulder,
Mr. Kyle could lift, carry, push, and pull ten to fifteen pounds. Id. With his left
shoulder, he could lift, carry, push, and pull 25 pounds frequently and 40 pounds
He could occasionally climb ladders, ropes, and scaffolds,
should avoid unprotected heights and dangerous, moving machinery, and could not
work where he would be required to read or prepare documents of any kind. Id.
Finally, the ALJ determined that, although Mr. Kyle was unable to perform
any past relevant work, he retained the capacity to perform jobs that existed in
significant number in the national economy.
Thus, the ALJ
ultimately determined that Mr. Kyle had not been under disability, as defined in the
Social Security Act, from November 1, 2008, through the date of the decision. (Tr.
The court may only reverse a finding of the Commissioner if it is not
supported by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the
court of its responsibility to scrutinize the record in its entirety to ascertain whether
substantial evidence supports each essential administrative finding.” Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615
F.2d 1103, 1106 (5th Cir.1980)).6 However, the court “abstains from reweighing
the evidence or substituting its own judgment for that of the [Commissioner].” Id.
Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all decisions of the
former Fifth Circuit handed down prior to October 1, 1981).
Mr. Kyle urges this court to reverse the Commissioner’s decision to deny his
benefits because ALJ’s decision was not supported by substantial evidence. The
I. Substantial evidence supports the ALJ’s Decision.
Mr. Kyle maintains that the decision of the Commissioner is not supported
by substantial evidence because (1) the ALJ’s RFC findings were not supported by
substantial evidence and (2) he failed to fully and fairly develop the record.
The Commissioner has the duty to weigh the evidence, resolve material
conflicts in testimony, and decide the case accordingly. See Watson v. Heckler,738
F.2d 1169, 1172 (11th Cir. 1984); Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th
Cir. 1986). “Even if the evidence preponderates against the [Commissioner’s]
factual findings, we must affirm if the decision reached is supported by substantial
evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Mr. Kyle
bears the burden of proving that he is disabled. Carnes v. Sullivan, 936 F.2d 1215,
1218 (11th Cir. 1991); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(“[T]he claimant bears the burden of proving that he is disabled, and, consequently,
he is responsible for producing evidence in support of his claim.”). Mr. Kyle did
not satisfy his burden, and this court finds that the ALJ’s determination that Mr.
Kyle was not disabled is supported by substantial evidence.
A. RFC Determination
A claimant’s RFC is “the most [he] can still do despite [his] limitations.” 20
C.F.R. § 404.1545(a)(1).
At the administrative hearing level, the ALJ “is
responsible for assessing [the claimant’s] residual functional capacity.” 20 C.F.R.
§ 404.1546(c). In making this determination, the ALJ considers “all of the relevant
medical and other evidence.” 20 C.F.R. § 404.1545(a)(3).
In making his RFC finding, the ALJ determined that Mr. Kyle’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms but that his statement’s concerning the intensity, persistence, and
limiting effects of these symptoms were not credible to the extent they differed
with the RFC finding. The ALJ then determined Mr. Kyle’s RFC as follows:
[T]he claimant has the residual functional capacity to perform light work. …
With his right upper extremity, the claimant can lift, carry, push, and pull 10
to 15 pounds. With his left upper extremity, the claimant can lift, carry,
push and pull 25 pounds frequently and 40 pounds occasionally. The
claimant can only occasionally climb ladders, ropes, and scaffolds. He
should avoid unprotected heights and dangerous, moving machinery. He
cannot do work where he is required to read or prepare documents of any
Mr. Kyle contends that this determination was not supported by
substantial evidence for various reasons.7 This court is not persuaded.
For the purpose of clarity, the court addresses Mr. Kyle’s arguments in an order
different than that in which they were presented.
First, Mr. Kyle argues that the evidence does not support the ALJ’s findings
on how much Mr. Kyle could lift and that the ALJ’s distinction between the right
and left shoulders was arbitrary.8 To support these contentions, Mr. Kyle points to
two July 2009 MRI scans that reveal a “[r]eactive cyst formation” in the left
shoulder and a “partial thickness tear of the bursal surface of the supraspinatus
tendon” in the right shoulder.
Furthermore, these MRI scans
indicated “tendonitis/tendinopathy” in both shoulders. Id.
On the other hand, the May 2009 consultative examination supports the
ALJ’s findings. Dr. Alvin V. Tenchavez reported that Mr. Kyle had “[n]o pain,
restriction or swelling on review of the joints … including … [the] left shoulder.”
(Tr. 278). He further found that Mr. Kyle’s “[g]rip strength, on a scale of 5, [was]
5/5 in all muscle groups.” Id. Mr. Kyle notes that Dr. Tenchavez also listed “left
shoulder pain” in his diagnosis section. (Tr. 279). This fact does not remove the
examination’s evidentiary support for the ALJ’s RFC finding.
Mr. Kyle’s testimony also supports the ALJ’s determination.
testified that it was his right shoulder that caused him the most pain. (Tr. 78). Mr.
Kyle testified that he could lift “10, 15 pounds” while doing laundry but that
In his brief, Mr. Kyle appears to suggest that the ALJ should have given greater
restrictions for his left shoulder, rather than his right. (Pl.’s Br. 7). As discussed below, this is
directly contradicted by his testimony.
heavier lifting would bother his right shoulder. (Tr. 83). The ALJ similarly found
that Mr. Kyle could “lift … 10 to 15 pounds” with his right extremity. (Tr. 35).
Regarding his left side, Mr. Kyle stated “[m]y left one [shoulder]? It’s –
now, I can pick up my – one of my kids and it don’t [sic] bother me, but it don’t
[sic] hurt like my right one.” (Tr. 80). In response to what limitations he did have
on his left shoulder, he testified that picking up his forty-pound daughter was about
the most he could handle. (Tr. 83). The ALJ then found that Mr. Kyle could only
occasionally lift forty pounds with his left shoulder.
evidence, particularly Mr. Kyle’s testimony, supports the ALJ’s determination of
how much weight Mr. Kyle can lift.
Mr. Kyle also contends that the ALJ erred when he failed to reconcile an
apparent inconsistency between the MRI scans and x-rays. While the MRI scans
indicated tendinitis in the left shoulder, Dr. Tenchavez’s x-rays indicated no
fracture or dislocation in the left shoulder. (Tr. 278). Dr. Tenchavez further
opined that the x-rays were “unremarkable.”
Contrary to Mr. Kyle’s
assertions, this is not an inconsistency. Diagnosis of tendinitis typically consists of
clinical evaluation sometimes coupled with MRI and/or ultrasound imaging.9
See The Merck Manual's Online Medical Library: The Merck Manual for Healthcare
Professionals, available at
h (“Usually, the diagnosis can be based on symptoms and physical examination, including
palpation or specific maneuvers to assess pain. MRI or ultrasonography may be done to confirm
rays, on the other hand, reveal bone conditions.10
The ALJ also noted this
distinction in the administrative hearing. (Tr. 51) (“[I]f he has soft tissue injuries,
it’s not unusual that the x-ray would be minimal because all it shows is problems
generally with the bones.”).
Next, Mr. Kyle contests the finding that he can occasionally climb ladders,
ropes, and scaffolds. He states:
It would appear unlikely as a matter of common interpretation that an
individual with left should pain as diagnosed by SSA’s own consultative
physician [Dr. Tenchavez] and tendon tear in the right shoulder as
objectively demonstrated [by an MRI] could climb ladders, ropes and
scaffolds even on an occasional basis.
(Pl.’s Br. 8-9). Assuming this statement is factually correct, “unlikely as a matter
of common interpretation” is not sufficient to reverse the ALJ’s findings. See
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (internal citations
omitted) (“Even if the evidence preponderates against the Secretary's factual
findings, we must affirm if the decision reached is supported by substantial
the diagnosis .”).
See The Merck Manual's Online Medical Library: The Merck Manual for Healthcare
Professionals, available at
ml?qt=Osteoarthritis&alt=sh#v902413 (“Plain x-rays in particular reveal mainly bony
In Moore v. Barnhart, the Eleventh Circuit addressed a similar situation.
The court stated that “rather than pointing to medical evidence that conflicts with
the ALJ's RFC determination, [the claimant] argues inferentially that based on their
evaluations, [her] physicians would most likely disagree with the ALJ's findings.”
405 F.3d 1208, 1213 (11th Cir. 2005). The court found “this sort of extrapolation
and conjecture remains insufficient to disturb the ALJ's RFC determination, where
it is supported by substantial evidence.” Id. Similarly, Mr. Kyle only hypothesizes
about what his doctors might have thought.
Dr. Tenchavez and the doctors
interpreting the MRI scans did not opine that Mr. Kyle’s injuries would preclude
In fact, Dr. Tenchavez indicated that Mr. Kyle did not have any
neuromuscular or musculoskeletal restrictions. (Tr. 278). Mr. Kyle’s speculation
that his doctors would restrict him to no climbing is insufficient to overturn the
Furthermore, even if the ALJ’s conclusion that Mr. Kyle could occasionally
climb ladders, ropes, and scaffolds was not supported by substantial evidence, the
error was harmless. The jobs – various assemblers, cleaner, and welder – listed by
the vocational expert, (Tr. 96-97), and relied on by the ALJ, (Tr. 40), do not
require any climbing. See DOT Listing No. 783.687-010 available at DICOT §
783.687-010; DOT Listing No. 729.684-054 available at DICOT § 729.684-054;
DOT Listing No. 734.687-014 available at DICOT § 734.687-014; DOT Listing
No. 302.685-010 available at DICOT § 302.685-010; DOT Listing No. 813.684022 available at DICOT § 813.684-02.11
Therefore, any error regarding Mr.
Kyle’s climbing capacity would be harmless. See Fisher v. Bowen, 869 F.2d 1055,
1057 (7th Cir. 1989) (“No principle of administrative law or common sense
requires us to remand a case in quest of a perfect opinion unless there is reason to
believe that the remand might lead to a different result.”).
Finally, Mr. Kyle asserts that the state Single Decisionmaker’s physical RFC
assessment “was not entitled to any particular deference.” (Pl.’s Br. 6). And the
The ALJ gave the assessment “little weight … because [he]
considered the totality of the claimant’s testimony, submissions, and medical
records in determining that the claimant has a lower exertional level.” (Tr. 38)
(emphasis added). Mr. Kyle, however, was not convinced:
“The ALJ gave the State Agency assessment … little weight without
identifying it as a non medical [sic] opinion on the basis that he had
considered the totality of the evidence in determining a lower exertional
level. … In fact, the ALJ adopted most aspects of this non medical [sic]
(Pl.’s Br. 8).
Specifically, Mr. Kyle argues that the ALJ relied on this
assessment12 for his findings on Mr. Kyle’s ability to lift, carry, push, pull, and
In each of their descriptions, these jobs all contain the statement: “Climbing: Not
Present - Activity or condition does not exist.” Id.
The state Single Decisionmaker found that Mr. Kyle could frequently lift fifty pounds,
occasionally lift twenty-five pounds, push and/or pull without limitations, and climb frequently.
As discussed above, these determinations are supported by substantial
evidence without this assessment.
The ALJ did not err simply by reaching
conclusions similar to that of the state Single Decisionmaker.
B. Development of the Record.
The ALJ has a duty to develop a full and fair record. Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003); Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981). Nevertheless, the claimant bears the burden to prove that he is
disabled and to produce medical evidence supporting his claim. 20 C.F.R. §
416.912(c); Ellison, 355 F.3d at 1276. Mr. Kyle contends that the ALJ did not
fulfill his duty because (1) he failed to request a medical source opinion; (2) he did
not order a second consultative examination; and (3) he did not consult a medical
expert opinion pursuant to 20 C.F.R. 404.1529(b).
1. Medical Source Opinion
Mr. Kyle avers the RFC determination cannot be based on substantial
evidence because the record did not contain a medical source opinion on the
claimant’s limitations. Mr. Kyle states that “an MSO of some kind is crucial to the
analysis of functioning based on the medically determinable impairments.” (Pl.’s
There is no bright line rule about when the ALJ must request a medical
source opinion from a physician. In some cases, a treating physician's opinion is
See, e.g., Coleman v. Barnhart, 264 F.Supp.2d 1007, 1010 (S.D.
Ala.2003). In others, it is not. See, e.g., Green v. Social Security Admin., 223 F.
App'x. 915, 923 (11th Cir. 2007) (affirming ALJ's RFC assessment as supported by
substantial evidence even though the ALJ discredited the only medical source
opinion in the record).
The ultimate question in each case remains whether
substantial evidence supports the ALJ's RFC assessment.
Here, as discussed above, substantial evidence supports the ALJ's RFC
assessment despite the absence of a MSO. Thus, the ALJ was not required to
request a medical source opinion before making his RFC determination.
2. Consultative Examination
The ALJ’s duty to develop the record encompasses an obligation to order a
consultative evaluation “when the evidence as a whole is insufficient to allow [the
Commissioner] to make a determination or decision on [the] claim.” 20 C.F.R. §
When the record does contain sufficient evidence to make an
informed decision, the ALJ is not required to order a consultative examination.
See Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001); Holladay v. Bowen,
848 F.2d 1206, 1210 (11th Cir. 1988).
Sufficient evidence does not mean
“absolute certainty” regarding a claimant’s condition; the Social Security Act only
requires substantial evidence. Holladay, 848 F.2d at 1210 (11th Cir. 1988).
Mr. Kyle argues that because the MRI scans indicating tendinitis conflict
with Dr. Tenchavez’s finding of “[n]o pain, restriction[,] or swelling on review of
the joints,” the ALJ needed to obtain a second consultative examination. (Tr. 278).
The court disagrees.
While the MRI scans do conflict with Dr. Tenchavez’s findings, the ALJ
still had sufficient evidence to make an “informed decision.” The ALJ determined
that, despite Dr. Tenchavez’s findings, Mr. Kyle did have “degenerative disease in
both shoulder joints verified by MRI.” (Tr. 33). After establishing this severe
impairment, he gave Mr. Kyle a lower RFC than did the State Decisionmaker, who
based his assessment on Dr. Tenchavez’s examination. The ALJ also relied on Mr.
Kyle’s own statements to make this RFC determination. The MRI results, Dr.
Tenchavez’s examination, and the claimant’s testimony together provided
substantial evidence for the ALJ to make an informed decision.
3. Medical Expert
Finally, Mr. Kyle argues that the ALJ should have consulted a medical
expert before making the RFC finding. The ALJ “may ask for and consider the
opinion of a medical or psychological expert concerning whether [the claimant’s]
impairment(s) could reasonably be expected to produce [his] alleged symptoms.”
20 C.F.R. § 404.1529(b).
Here, the ALJ did find a medically determinable
impairment that could reasonably produce the alleged symptoms. (Tr. 36). The
determination of a claimant’s RFC is not a medical assessment. Langley v. Astrue,
777 F. Supp. 2d 1250, 1261 (N.D. Ala. 2011). Thus, the ALJ is not required to
consider a medical expert opinion before making his RFC finding. Id.
Based upon the court’s evaluation of the evidence in the record and the
parties’ submissions, the court concludes that the decision of the Commissioner is
supported by substantial evidence and that she applied proper legal standards in
arriving at it. Accordingly, the decision of the Commissioner will be affirmed by
DONE and ORDERED this 20th day of December, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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