Bailey v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 2/11/13. (KGE, )

FILED
2013 Feb-11 PM 02:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LAQUON O. BAILEY,
Plaintiff;
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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5:11-cv-3583-LSC

MEMORANDUM OF OPINION
I.

Introduction.
The plaintiff, Laquon O. Bailey (“Bailey” or “Plaintiff”), appeals from the

decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying his applications for Supplemental Security Income
(“SSI”) and Disability Insurance Benefits (“DIB”). Bailey 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).
Bailey was twenty eight years old at the time of the Administrative Law Judge’s
(“ALJ”) decision (Tr. at 158), and he has a tenth grade education. (Id. at 201.) His

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past work experiences include employment as a hospital housekeeper and janitor. (Id.
at 188–195.) Bailey claims that he became disabled on July 15, 2007, due to several
gunshot wounds to his lower extremity. (Id. at 154, 158.)
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
C.F.R. pt. 404, subpt. P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii),

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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 on 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 Bailey met the
nondisability requirements for a period of disability and DIB and was insured through
September 30, 2010. (Tr. at 99.) He further determined that Bailey had not engaged
in substantial gainful activity since July 15, 2007, the alleged onset of his disability.
(Id.) The ALJ stated that Plaintiff had the following impairments which are considered

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“severe” based on the requirements set forth in the regulations: “multiple gunshot
wounds in July 2007 to the scrotum, right lower extremity and left lower extremity
and a gunshot wound in March 2009 to the abdomen through and through the right
kidney and through and through the right lobe of the liver and through the gallbladder
into the skin and soft tissue of the abdominal wall.” (Id.) However, he found that
these impairments neither meet nor medically equal any of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 100.) The ALJ determined that
Bailey “has the residual functional capacity to perform sedentary work as defined in
20 C.F.R. 416.1567(a) and 416.967(a) with a sit/stand option; never kneeling,
crouching or crawling; occasional use of ramps/stairs; avoid all exposure to hazards
and concentrated exposure to extreme cold, wetness, vibration; and no more than
frequent use of the left upper extremity.” (Id.)
Using the testimony of a vocational expert, the ALJ determined that Bailey
would not be able to perform his past relevant work, but considering Plaintiff’s age,
education, work experience, and residual functional capacity, there are jobs that exist
in significant numbers in the national economy that Bailey can perform, including jobs
as a hand packager, production inspector, and garment folder. (Tr. at 102–03.) The
ALJ concluded his findings by stating that Plaintiff “has not been under a disability,

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as defined in the Social Security Act, from July 15, 2007, through the date of this
decision.” (Id. at 103.)
II.

Standard of Review.
The Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts,
weigh evidence, or substitute its judgment for that of the Commissioner. Id. “The
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.
1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)). Indeed, even if this Court finds that the evidence preponderates against

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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
“[d]espite 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).
III.

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

two reasons. First, he contends that the ALJ’s RFC finding was not based on
substantial evidence because the ALJ did not consider a medical source statement
(“MSS”) when making his determination. Second, he contends that the ALJ’s RFC
assessment does not comply with Social Security Rulings (“S.S.R.”) 96-8p, 96-9p,
and 83-12.
A.

Whether Substantial Evidence Supports the ALJ’s RFC Finding

Plaintiff’s first argument is that the ALJ erred by making an RFC finding
without the aid of a MSS. Specifically, Plaintiff contends that the ALJ failed to give
proper accord to statements by Dr. John Lary and Dr. Prem Gulati regarding

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Plaintiff’s ability to engage in gainful employment.
Plaintiff’s brief rightly concedes that there is no requirement that the ALJ
consider a MSS when making an RFC finding. (Doc. 8 at 8.) The ALJ is only required
to make sure that the record is complete, i.e., that the medical evidence and other
evidence is sufficiently detailed to allow the ALJ to make a determination or decision
about whether the claimant is disabled. See 20 C.F.R. §§ 404.1513(e), 416.913(e).
Indeed, nowhere do the regulations provide that a record is incomplete if a medical
source does not provide a statement regarding the plaintiff’s functional limitations,
or if a medical source provides such a statement to which the ALJ properly accords
little or no weight. In fact, the regulations provide just the opposite: “the lack of [a]
medical source statement will not make the report incomplete.” 20 C.F.R. §
404.1513(b)(6). Accordingly, Plaintiff’s argument that the ALJ erred by failing to
consider a MSS is clearly unavailing.
“[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.”
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). See also 20 C.F.R. §
404.1512(a) (“[Y]ou must furnish medical and other evidence that we can use to reach
conclusions about your medical impairment(s) . . . .”); 20 C.F.R. § 404.1512(c) (“You

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must provide medical evidence showing that you have an impairment(s) and how
severe it is during the time you say that you are disabled.”). Plaintiff has failed to carry
his burden.
Plaintiff only identifies two items of evidence in the record which he alleges
should have been given greater weight when determining his disability. The first is the
medical records of one-time consultive examiner, Dr. Lary. Plaintiff was examined by
Dr. Lary on May 5, 2008, approximately 10 months following his first gunshot
injuries. During his visit with Dr. Lary, Plaintiff complained of right leg pain, and Dr.
Lary noted that Plaintiff walked with a limp. (Tr. at 275.) However, Dr. Lary noted
that none of Plaintiff’s joints were enlarged, swollen, red, warm, tender, or deformed,
and that he had good muscle strength. (Id. at 275–76.) At the end of his evaluation, Dr.
Lary opined that Plaintiff was impaired in his ability to stand, walk, lift, carry, bend,
kneel, and squat, but was unimpaired in his ability to sit, reach, and manipulate small
objects. (Id. at 276.)
A short time after Plaintiff met with Dr. Lary, he met with a state agency
physician, Dr. Robert Heilpern. Dr. Heilpern reviewed the evidence of record,
including Dr. Lary’s opinion. (Tr. at 296–303.) Although Dr. Heilpern did recognize
some functional limitations, he opined that the limitations identified by Dr. Lary were

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inconsistent with his objective findings on examination. (Id. at 302.) Dr. Heilpern
found that Plaintiff could occasionally lift and/or carry up to 50 pounds, frequently lift
and/or carry up to 25 pounds, and stand or sit for about 6 hours in an 8-hour workday.
(Id. at 297.) Ultimately, Dr. Heilpern assessed that Plaintiff could perform mediumlevel work with no climbing of ladders, ropes, or scaffolds or exposure to hazards. (Id.
at 297–98, 300.) Dr. Heilpern further noted Plaintiff was not compliant with
treatment, and he opined that his condition would improve within 12 months of the
alleged onset date. (Id. at 298.)
The opinion of a one-time examiner is not entitled to the same degree of
deference as a treating physician. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir.
1987). This is particularly true when the one-time examiner’s opinion is contradicted
by other medical evidence. Wainwright v. Comm'r of Soc. Sec. Admin., 06-15638, 2007
WL 708971, at *2 (11th Cir. Mar. 9, 2007). Here, the ALJ acted appropriately in not
basing his RFC assessment on the medical statements by Dr. Lary. Dr. Lary was a onetime consultive examiner and his opinion was contrary to the opinion provided by Dr.
Heilpern.
Furthermore, Dr. Heilpern’s finding that Plaintiff had failed to comply with
prescribed treatment also finds support in the record. On August 15, 2007, one month

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after Plaintiff’s first set of gunshot wounds, he met with a treating physician, Dr.
Ginger Bryant. (Tr. at 271.) During that visit, Plaintiff complained about decreased
motion and pain in his right knee, and an infection in his thigh. (Id.) Dr. Bryant
prescribed antibiotics to combat the infection and referred Plaintiff to physical therapy
to increase his mobility. (Id.) Dr. Bryant indicated that she believed Plaintiff would be
“full weightbearing” in four weeks if he followed the physical therapy protocol. (Id.)
Plaintiff did not present any evidence that he complied with the suggested
physical therapy. Indeed, although Dr. Bryant directed Plaintiff to return for a followup visit six weeks later, it does not appear that Plaintiff ever returned. The
Commissioner may deny benefits for the failure to follow treatment when the
claimant, without good reason, fails to follow a prescribed course of treatment that
could restore the ability to work. Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir.
1990). Again, Plaintiff bears the burden of establishing that he is disabled. Ellison, 355
F.3d at 1276. Thus, Plaintiff’s failure to demonstrate that he followed doctor
recommendations can be weighed against him.
Plaintiff next contends that the ALJ failed to accord proper weight to the
opinion of Dr. Gulati. Plaintiff argues that “Dr. Gulati could not have been clearer
about his opinion that at this time [Plaintiff ] will not be able to do any gainful

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employment.” (Doc. 8 at 8.) As an initial matter, opinions regarding whether a
claimant can engage in gainful employment “are not medical opinions, . . . but are,
instead, opinions on issues reserved for the Commissioner because they are
administrative findings that are dispositive of a case; i.e., that would direct the
determination or decision of disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). Such
statements by a physician are relevant to the ALJ’s findings, but they are not
determinative, as it is the ALJ who bears the responsibility for assessing a claimant’s
RFC. See, e.g., 20 C.F.R. § 404.1546(c). Accordingly, it was entirely proper for the
ALJ to reject Dr. Gulati’s opinion that Plaintiff was unable to hold a meaningful job
because this question was reserved for the Commissioner. The ALJ has the
responsibility of determining whether Plaintiff was able to work, and therefore, Dr.
Gulati’s opinion regarding the issue was not entitled to special significance or
controlling weight. See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
Additionally, the ALJ sufficiently articulated credible reasons for discounting
Dr. Gulati’s opinion. Dr. Gulati performed his one-time consultive examination on
March 24, 2009, which was less than a month after Plaintiff sustained his second set
of gunshot wounds. As the ALJ noted in his decision, this was clearly too soon for a
determination to be made regarding whether Plaintiff would make a full recovery. (Tr.

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at 101.) Furthermore, even Dr. Gulati opined that Plaintiff would likely be able to
perform sitting jobs after recovering from the wounds. (Id. at 306.)
Additionally, the ALJ appropriately deferred to the to the medical records of
Plaintiff’s treating physician, Dr. Michael Samotowka. (Tr. at 101–02.) Dr.
Samotowka examined Plaintiff on several occasions after his second set of gunshot
wounds, and he noted that Plaintiff had managed to recover nicely. On April 16, 2009,
Dr. Samotowka recorded that Plaintiff was “doing quite well” and had managed a
“good recovery.” (Id. at 307.) On May 13, 2009, Dr. Samotowka noted that Plaintiff
has some abdominal soreness, but otherwise his recovery was “excellent.” (Id. at
320.) Moreover, Dr. Samotowka acknowledged that Plaintiff was seeking disability,
but suggested that he “probably won’t qualify as he should be fully recovered in less
than 6 months from the time of his injury.” (Id.) Plaintiff’s last visit to Dr. Samotowka
occurred on July 15, 2009, 5 months after suffering his second gunshot wound. At that
visit, Dr. Samotowka assessed a full recovery and discharged Plaintiff from his care.
(Id. at 319.)
In consideration of the foregoing, the Court concludes that Plaintiff failed to
satisfy his burden of establishing that he is disabled. The ALJ had sufficient evidence
before him to make a fully informed disability determination, and his decision

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regarding Plaintiff’s RFC was supported by substantial evidence.
B.

Whether the ALJ’s RFC Assessment Complied with the Social
Security Regulations

Plaintiff’s second argument is that the ALJ’s decision does not comply with
SSR 96-8p, 96-9p, and 83-12.
S.S.R. 96-8p requires a specific function-by-function analysis of a claimant’s
limitations or restrictions regarding work-related abilities. When making an RFC
determination, the ALJ’s first step is to identify the individual’s functional limitations
or restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. §§ 404.1545
and 416.945. The physical functions taken into consideration in assessing an
individual’s RFC include “sitting, standing, walking, lifting, carrying, pushing,
pulling, or other physical functions (including manipulative or postural functions,
such as reaching, handling, stooping or crouching).” 20 CFR §§ 404.1545(b);
416.945(b). Because the RFC is a “function-by-function assessment based upon all of
the relevant evidence of an individual’s ability to do work-related activities,” the ALJ
must make the assessment based on all of the relevant evidence, including:
medical history, medical signs and laboratory findings, the effects of
treatment, including limitations or restrictions imposed by the mechanics
of treatment (e.g., frequency of treatment, duration, disruption to
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routine, side effects of medication), lay evidence, recorded observations,
medical source statements, effects of symptoms, including pain, that are
reasonably attributed to a medically determinable impairment, evidence
from attempts to work, need for a structured living environment, and
work evaluations, if available.
S.S.R. 96-8p at 4-5. Once the functional limitations or restrictions and work-related
abilities are determined, the RFC can “be expressed in terms of the exertional levels
of work, sedentary, light, medium, heavy, and very heavy.” S.S.R. 96-8p at 1.
A review of the record indicates that the ALJ made a proper function-byfunction analysis before determining Plaintiff’s RFC. The ALJ considered multiple
evaluations by Plaintiff’s doctors, a consultative physical examination, and a physical
RFC evaluation before concluding that Plaintiff was capable of performing sedentary
work that allows for a sit/stand option. (Tr. at 101–02.) Plaintiff’s argument, however,
is not that the ALJ failed to follow the standard procedure under S.S.R. 96-8p. Rather,
Plaintiff argues that the ALJ erred in designating him as capable of doing sedentary
work with a sit/stand option. Plaintiff contends that “sedentary work,” as defined in
S.S.R. 83-10, requires the ability to be on one’s feet for 2 hours and sit for 6 hours.
Thus, Plaintiff argues sedentary work is, by definition, inconsistent with a sit/stand
option, which requires the person to be able to sit or stand at will.
The fact that Plaintiff’s sitting and standing limitations do not fit neatly within

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the sedentary work category, to the extent this is true, does not automatically render
the ALJ’s RFC determination invalid. The problem is addressed in S.S.R. 83-12:
In situations where the rules would direct different conclusions, and the
individual's exertional limitations are somewhere “in the middle” in
terms of the regulatory criteria for exertional ranges of work, more
difficult judgments are involved as to the sufficiency of the remaining
occupational base to support a conclusion as to disability. Accordingly,
[a Vocational Expert’s] assistance is advisable for these types of cases.
To the extent Plaintiff’s exertional ranges of work fall somewhere between
sedentary and light work, it was appropriate for the ALJ to rely upon a Vocational
Expert (“VE”) to make an individualized determination of Plaintiff’s ability to secure
employment. The ALJ proposed hypothetical questions to the VE regarding the
number of jobs available in the national economy for Plaintiff to perform. (Tr. at
74–76.) Although the ALJ discussed sedentary and light exertional levels, he
articulated Plaintiff’s specific limitations for the VE to consider, and the VE made an
individualized assessment of Plaintiff’s ability to secure employment. (Id.) Based on
the Plaintiff’s specific restrictions, the VE determined that there were jobs in the state
and national market which Plaintiff could perform, including positions as a hand
packager and garment folder. (Id. at 75–76.) Thus, even if the sit/stand option is not
consistent with sedentary work, the ALJ’s reliance on a VE prevents his RFC
determination from being in error. The ALJ made a proper function-by-function
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analysis, and his determination that Plaintiff is capable of performing sedentary work
with a sit/stand option is supported by substantial evidence.
Plaintiff’s next argument is that the ALJ’s decision is inconsistent with S.S.R.
96-9p. Plaintiff argues that “SSR 96-9p recognizes that an RFC for less than a full
range of sedentary work reflects very serious limitations and is expected to be
relatively rare.” (Doc. 8 at 12.) Although this is true, SSR 96-9p explicitly provides
that “a finding that an individual has the ability to do less than a full range of sedentary
work does not necessarily equate with a decision of ‘disabled.’” Rather,
“consideration must still be given to whether there is other work in the national
economy that the individual is able to do, considering age, education, and work
experience.” S.S.R 96-9p at 1. Even if the ALJ’s RFC finding reflects a serious
limitation, the Court cannot say that the ALJ erred as a matter of law. The ALJ
appropriately considered the testimony from a VE in determining that there were a
sufficient number of jobs in the national economy for Plaintiff to perform.
Accordingly, the ALJ satisfied his obligations under S.S.R. 96-9p.
IV.

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

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

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evidence and in accord with the applicable law. A separate order will be entered.
Done this 11th day of February 2013.

L. Scott Coogler
United States District Judge
[170956]

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