Ellington v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 06/19/12. (CVA)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
2012 Jun-19 AM 10:44
U.S. DISTRICT COURT
N.D. OF ALABAMA
Civil Action Number
Plaintiff Derrick Ellington (“Ellington”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This Court finds that the Administrative Law Judge’s
(“ALJ”) decision - which has become the decision of the Commissioner - is
supported by substantial evidence, and, therefore, AFFIRMS the decision denying
I. Procedural History
Ellington filed his application for Title II Disability Insurance Benefits on
May 31, 2007, alleging a disability onset date of September 29, 2006. (R. 52).
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After the SSA denied his application, Ellington requested and received a hearing
on August 18, 2009, (R. 23-51). At the time of the hearing, Ellington was 46 years
old with a high school diploma and a vocational license as a barber. (R. 27).
Ellington has not engaged in substantial gainful activity since September 29, 2006.
(R. 120). His past relevant work included work as a senior field artillery sergeant
in the United States Army. (R. 28, 45-46).
On September 25, 2009, the ALJ denied Ellington’s claims. (R. 8-22). The
ALJ found that Ellington has lumbar disc disease and degenerative joint disease of
the left knee and ankle (R. 13), that Ellingon cannot perform any past relevant
work, but has a residual functional capacity (“RFC”) to perform light work. (R.
15). On January 12, 2011, the Appeals Council refused to grant review. (R. 1-5).
Ellington then filed this action for judicial review pursuant to 42 U.S.C. § 405(g).
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ properly
developed the record. Title 42 U.S.C. §§ 405(g) and 1383(c) mandate that the
Commissioner’s “factual findings are conclusive if supported by ‘substantial
evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district
court may not reconsider the facts, reevaluate the evidence, or substitute its
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judgment for that of the Commissioner; instead, it must review the final decision
as a whole and determine if the decision is “reasonable and supported by
substantial evidence.” See id. (citing Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairments 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
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psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, Ellington alleges disability because of pain, he must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
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when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale at 1011.
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find him disabled unless the ALJ properly discredits his testimony.
This standard is referred to as the Hand standard, named after Hand v. Heckler, 761
F.2d 1545, 1548 (11th Cir. 1985).
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Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate reasons for
refusing to credit a claimant’s subjective pain testimony, then the [ALJ], as
a matter of law, has accepted that testimony as true. Implicit in this rule is
the requirement that such articulation of reasons by the [ALJ] be supported
by substantial evidence.
Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). Therefore, if the ALJ either
fails to articulate reasons for refusing to credit the plaintiff’s pain testimony, or if
the ALJ’s reasons are not supported by substantial evidence, the court must accept
as true the pain testimony of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
Turning now to the ALJ’s decision, the court notes that, initially, the ALJ
determined that Ellington has not engaged in substantial gainful activity since
September 29, 2006, and therefore met Step One of the five step analysis. (R. 13).
The ALJ acknowledged that Ellington’s combination of severe impairments of
lumbar disc disease and degenerative joint disease of the left knee and ankle met
Step Two. Id. The ALJ proceeded to the next step and found that Ellington did
not satisfy Step Three since his impairments or combination thereof neither met
nor equaled the requirements for any listed impairment. (R. 15). Although she
answered Step Three in the negative, consistent with the law, see McDaniel, 800
F.2d at 1030, the ALJ proceeded to Step Four where she determined that Ellington
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had the RFC to
to perform light work . . . such that [Ellington] may sit six hours in an
eight hour workday with appropriate breaks; may stand/walk six
hours of an eight hour workday with appropriate breaks; may
lift/carry ten pounds frequently and twenty pounds occasionally; but
is precluded from the use of ladders/ropes/scaffolds; may only
occasionally stoop, kneel, crouch and crawl; must avoid concentrated
exposure to extreme heat or cold; must avoid concentrated exposure
to vibration and workplace hazards such as unprotected heights and
(R. 15). Further, the ALJ held that Ellington could not perform any of his past
relevant work. (R. 20). Lastly, in Step Five, the ALJ considered Ellington’s age,
education, work experience, RFC, and impairments, and determined that there are
a significant number of jobs in the national economy that Ellington can perform.
(R. 20-21). Specifically, Ellington can perform the job of a gate guard, merchant
patrolman, and a property manager. (R. 21). Because the ALJ answered Step Five
in the negative, the ALJ determined that Ellington is not disabled. (R. 23); see
also McDaniel, 800 F.2d at 1030.
The court turns now to Ellington’s contentions that the ALJ made a
determination that is not based on substantial evidence and failed to adequately
develop the record. The court addresses each contention below.
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A. The ALJ’s Finding Denying Disability is Based on Substantial Evidence
1. “Very Frequent Breaks” v. “Appropriate Breaks”
Ellington’s first contention of error is related to the weight the ALJ assigned
to various findings of Dr. Trina McKenzie. Specifically, Ellington claims the
“ALJ opined that she was going to accord great weight to the opinion of the DDS
consultative examiner Dr. Trina McKenzie . . . [but] the ALJ accorded great
weight to a physician opinion that supported disability and still found Plaintiff not
disabled which is contradictory in itself.” Doc. 8 at 11. As it relates to Dr.
McKenzie, she performed an assessment on July 26, 2007, in which she found that
Ellington “presents for disability for degenerative joint disease in his back and
disc disease as diagnosed by MRI . . . . Although [Ellington] can still do some
physical activities, he does require very frequent breaks and has difficulty
bending, stooping, kneeling, and crouching.” (R. 338). Ellington contends that
this finding supports his contention that he is disabled and, as such, takes issue
with the ALJ’s interpretation of Dr. McKenzie’s findings.
Contrary to Ellington’s contention, it is clear the ALJ reviewed Dr.
McKenzie’s findings sufficiently. Indeed, the ALJ acknowledged that Dr.
McKenzie found that Ellington “would require frequent breaks and had some
limitations on bending, stooping, kneeling and crouching.” (R. 18). However, the
ALJ noted that Dr. McKenzie “did not render the opinion that [Ellington] is
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disabled.” (R. 18). Moreover, the ALJ’s review found Dr. McKenzie’s
“evaluation to be persuasive and consistent with the determined medical findings,”
and therefore assigned the medical opinion great weight. Id. Critically, the ALJ
acknowledged the limited postural abilities referenced by Dr. McKenzie when
assigning the RFC. Id. Consequently, in Ellington’s RFC, the ALJ specifically
stated that Ellington “may only occasionally stoop, kneel, crouch and crawl . . . .”
(R. 15). As it relates to this appeal, the ALJ did not include Dr. McKenzie’s
finding of “very frequent breaks.” (R. 15). Rather, the ALJ found that Ellington
has the RFC “to perform light work . . . such that [Ellington] may sit six hours in
an eight hour workday with appropriate breaks; [and] may stand/walk six hours of
an eight hour workday with appropriate breaks . . . .” (R. 15) (emphasis added).
Ellington asserts that the ALJ erred when she rejected Dr. McKenzie’s “very
frequent breaks,” especially in light of the ALJ’s assertion that she awarded great
weight to Dr. McKenzie’s opinion. The court disagrees. Ellington’s contention of
error ignores that the regulations make clear that the responsibility for assessing
the RFC falls on the ALJ. 20 C.F.R. § 416.946. For example, while Ellington
asserts that Dr. McKenzie’s assessment supported disability, the regulations state
unequivocally that “[a] statement by a medical source that [Ellington is] ‘disabled’
or ‘unable to work’ does not mean that [the ALJ must] determine that [he is]
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disabled.” 20 C.F.R § 404.1527(d)(1). Therefore, assigning “great weight” to Dr.
McKenzie’s opinion while also excluding Dr. McKenzie’s opinion that Ellington
required “very frequent breaks” is not inconsistent or evidence of error. After all,
in determining whether a claimant is disabled, the ALJ “will always consider the
medical opinions in [the] case record together with the rest of the relevant
evidence [she] received.” 20 C.F.R. 404.15279(b). Moreover, “the ALJ may
reject any medical opinion if the evidence supports a contrary finding.” Sharfarz
v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987).
In that respect, the court notes that Dr. McKenzie’s findings do not support
Ellington’s disability claim. For example, Dr. McKenzie noted that Ellington
occasionally walks with a cane and at times has to wear an ankle and knee brace
for support. (R. 337). Moreover, she stated that “[Ellington] does require very
frequent breaks and has difficulty bending stooping, kneeling, and crouching.” (R.
338). However, Dr. McKenzie noted also that Ellington does not require
assistance dressing, has an intact range of motion, 5/5 strength, no sensory loss, sat
comfortably on the edge of the exam table in no acute distress, and that Ellington’s
joints revealed no evidence of erythema, warmth, or tenderness. (R. 18, 337).
She noted further Ellington’s report that he controlled his pain with medications
and that “although he has constant pain, the pain medications do take the pain to a
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5/10 from a 10/10 off his medications.” (R. 338). Indeed, Ellington reported that
he is able to stand and sit and that he can lift and carry items as long as they are
not heavy weights and can take frequent breaks. (R. 338). Critically, as the ALJ
pointed out, Dr. McKenzie never opined that Ellington is disabled. (R. 334-38).
Notably, Ellington overlooks also that Dr. McKenzie never placed direct
limitations on what activities Ellington can perform. Instead, Dr. McKenzie stated
only that Ellington has limitations in terms of bending, stooping, crouching,
kneeling, standing, sitting, lifting, and carrying items due to pain and that
Ellington needed to take very frequent breaks to minimize his pain while engaging
in these activities. (R. 337-38). Conversely, unlike Dr. McKenzie, the ALJ
restricted Ellington to light work, limited his sitting and standing to six hours in an
eight hour work day, precluded him from using ladders/ropes/scaffolds, and
limited Ellington to occasionally stooping, kneeling, crouching, and crawling. (R.
15). Consequently, in this context in which the ALJ placed limitations on
Ellington to help minimize Ellington’s pain, the ALJ then stated that Ellington
only needed “appropriate breaks.” In other words, the ALJ’s opinion is consistent
with Dr. McKenzie’s assessment in that the ALJ placed more limitations on
Ellington’s activities to minimize the need for Ellington to take “very frequent
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2. ALJ’s Hypothetical to the Vocational Expert (“VE”)
Next, Ellington contends that the ALJ erred because she “did not ask the
[VE] a question based upon Dr. McKenzie’s statement that [Ellington] needed
very frequent breaks . . . .” Doc. 8 at 11. The ALJ asked the VE to consider an
age 46, with a high school education, and work of a skilled nature
such as that of [Ellington] that he obtained in the military . . . . [T]he
hypothetical individual would be capable of sitting for six hours in an
eight-hour day with appropriate breaks, standing and walking for six
hours in an eight-hour day with appropriate breaks . . . . could lift
and carry 10 pounds frequently and 20 pounds occasionally . . . .
could never climb ropes, ladders, or scaffolds; could occasionally
crouch, crawl, stoop, and kneel . . . . should avoid concentrated
exposure to extreme cold, heat, vibration, and hazards such as moving
machinery or unprotected heights.
(R. 46-47) (emphasis added). While Ellington is correct that the hypothetical
made no reference to “very frequent breaks,” Ellington overlooks that the ALJ had
no need to make the inquiry because the ALJ placed limitations on the RFC that
rendered moot Ellington’s need for frequent breaks. Stated differently, “[t]he ALJ
was not required to include [Dr. McKenzie’s] findings in the hypothetical that the
ALJ properly rejected as unsupported.” Crawford v. Comm’r of Soc. Sec’y, 363
F.3d 1155, 1161 (11th Cir. 2004). In other words, the ALJ committed no error in
failing to include “very frequent breaks” in her hypothetical to the VE.
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3. Dr. Elliot Rampulla’s Opinion
Ellington contends next that the ALJ’s “failure to accord great weight to the
opinion of Dr. Elliot Rampulla [(“Dr. Rampulla”)], long term treating physician,
despite the fact that the ALJ also claims to have accorded great [weight] to Dr.
Rampulla’s opinion was reversible error.” Doc. 8 at 11. Specifically, Ellington
maintains that the “ALJ took part of Dr. Rampulla’s opinion and accepted it and
then ignored the rest.” Id. at 12. Indeed, the ALJ gave great weight to Dr.
Rampulla’s opinion that Ellington does not have a medical condition that is
consistent with the level of pain Ellington reports experiencing. (R. 18, 377).
However, the ALJ gave less weight to the remainder of Dr. Rampulla’s opinion
that Ellington can only occasionally or less frequently lift ten pounds, sit three
hours in an eight hour work day, and stand and walk a combined one hour in an
eight hour work day, finding that these findings were not supported by Dr.
Rampulla’s records. (R. 375). Ellington disagrees and alleges that his reports to
Dr. Rampulla that he is unable to work because of back, ankle and knee pain,
headaches, that he experiences pain constantly, with the worst in his back, which
“generates down through [his] leg, [his] left leg, mostly . . . ,” and other ailments,
(R. 30-33), support Dr. Rampulla’s restrictions.
While the court is certain that Ellington suffers from pain, Ellington’s
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descriptions of his pain, however, do not justify the portion of Dr. Rampulla’s
opinion that the ALJ rejected. The court recognizes that “the testimony of a
treating physician must be given substantial or considerable weight unless ‘good
cause’ is shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997). Moreover, “‘good cause’ exists when the: (1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records. When electing to disregard the opinion of a treating
physician, the ALJ must clearly articulate its reasons.” Phillips v. Barnhart, 357
F.3d 1232, 1241 (11th Cir. 2004). Here, good cause existed for the ALJ to reject
Dr. Rampulla’s findings. Significantly, the ALJ provided the required reasons for
rejecting a portion of Dr. Rampulla’s opinion.
In that regard, a review of the medical record shows that Ellington began
visiting Dr. Rampulla monthly in 2007. (R. 378-487, 597-660). On September
24, 2007, Dr. Rampulla completed a Physical Capacities Evaluation and a Clinical
Assessment of Pain and opined that Ellington can occasionally or less frequently
lift ten pounds; can sit three hours in an eight hour work day; can stand and walk a
combined one hour in an eight hour work day; does not require an assistive device
to ambulate even minimally in a normal workday; cannot climb stairs, ladders, do
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fine manipulations, or work around hazardous machinery; and can occasionally
bend, stoop, and reach. (R. 375). Dr. Rampulla further opined that Ellington’s
pain is distracting to adequate performance of daily activities or work; that
walking, standing, bending, stooping, and moving of extremities greatly increase
pain to cause distraction from tasks or total abandonment of tasks; and the side
effects of Ellington’s prescription medication are severe and limit effectiveness
due to distraction, inattention, and drowsiness. (R. 376-77). Critically, Dr.
Rampulla selected “No” to the question: “Does this patient have an underlying
medical condition consistent with the pain he or she experiences?” (R. 377). While
Ellington obviously disagrees, Dr. Rampulla’s finding that Ellington does not have
an underlying condition supports the ALJ’s decision to reject Dr. Rampulla’s
opinion that Ellington can only occasionally or less frequently lift ten pounds, sit
three hours in an eight hour work day, and stand and walk a combined one hour in
an eight hour work day. (R. 375).
Moreover, as the ALJ noted, Dr. Rampulla saw Ellington on a monthly basis
spanning from 2007 to 2009 and during each visit Ellington completed a
questionnaire. (R. 17, 233-36, 240-43, 268-83, 382-85, 389-92, 402-05, 409-12,
415-18, 421-24, 432-35, 439-44, 447-50,453-56, 459-62, 466-67, 472-75, 484-87,
597-660, 661-662). Significantly, the ALJ pointed out that “Dr. Rampulla
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performed no diagnostic procedures, there are no exam notes for many of the
visits, and although he opines that [Ellington] does not have a medical condition
which is consistent with the level of pain he reports, he continues to prescribe
oxycontin as [Ellington] continues to report pain.” (R. 17). Based on the lack of
exam notes and Dr. Rampulla’s own assessment that Plaintiff has no medical
condition that is consistent with Plaintiff’s pain reports, the ALJ concluded that
Dr. Rampulla relied primarily on Ellington’s own questionnaires and the past
medical history Ellington reported when he performed the Physical Capacities
Evaluation and Clinical Assessment of Pain. In other words, Dr. Rampulla failed
to bolster his opinion by sufficient medical evidence. As such, the ALJ did not
have to give that portion of Dr. Rampulla’s opinion great weight and, instead, can
rely on other medical evidence to support her RFC finding.
a. Other Medical Evidence
In that regard, in reaching her decision that Ellington is not disabled, the
ALJ relied on the medical findings of multiple physicians. First, the ALJ
referenced Ellington’s long treatment history with Dr. William Hall (“Dr. Hall”) of
the Veteran’s Administration Hospital. (R. 284-306, 307-333, 366-373). The
record shows that during a visit on February 23, 2006, Dr. Hall noted that while
Ellington has chronic back and knee pain and problems with his left ankle, his
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exam was unremarkable. (R. 291). During another visit on October 16, 2006, Dr.
Hall found no real change in Ellington’s musculoskeletal system despite noting
that Ellington had severe arthritis, degenerative joint disease involving his knees
and ankles, and chronic low back and shoulder pain. (R. 286). A few months
later, on February 7, 2007, Ellington visited Dr. Hall again complaining of chronic
back and leg pain. (R. 310). After performing a physical exam, Dr. Hall instructed
Ellington to continue taking OxyContin, Soma, and Xanax and to return for
another visit as necessary. Id. Based on Dr. Hall’s records, although the ALJ
noted that Ellington continued to “complain of back and ankle pain, and receive[d]
regular prescriptions for oxycotin,” (R. 16), the ALJ pointed out that Dr. Hall’s
“diagnosis contained in the records [was] vague, reference[d] the patient’s oral
history, and ha[d] no current findings to support it.” Id.
Second, the ALJ also referenced Dr. McKenzie’s opinion and Dr. Dan
Lowery’s (“Dr. Lowery”) July 2007 psychological consultative examination, (R.
18), which stated that Ellington “walked without a gross motor impairment or
without any overt pain behaviors to and from the interview . . . He demonstrated
no obvious pain behaviors during the interview other than stretching his right leg
at times,” (R. 340). Moreover, Dr. Lowery stated that Ellington appeared to cope
with his chronic pain adequately and recommended a behavioral pain management
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program. (R. 342). Finally, the ALJ also relied on the physical summary
completed by the state agency physician Dr. Keith Langford (“Dr. Langford”) on
August 9, 2007, which provided that Ellington is capable of performing light work
by occasionally lifting 20 pounds, frequently lifting 10 pounds, standing and/or
walking about 6 hours in an 8-hour workday, frequently climbing ramps/stairs, but
can never climbing ladders/ropes/scaffolds. (R. 358-65).
In addition to reviewing the medical evidence, the ALJ also considered
Ellington’s daily activities and found that they are inconsistent with the disability
contention. As the ALJ pointed out, Ellington reported that he likes sitting on the
front porch, watching television and fishing, and that he drives around the
community or to the store, visits family, pays the household bills, and leaves the
house almost daily. (R. 42-44). To help alleviate the pain caused by these
activities, Ellington occasionally uses his cane when walking a few hundred feet to
visit his in-laws and takes OxyContin for pain, Xanax for anxiety, and Soma as a
muscle relaxer. (R. 34-36). Based on Ellington’s own contentions of daily
activities, the ALJ concluded that Ellington is functioning despite his alleged pain.
b. Medication Side Effects
Ellington contends next that the ALJ erred because she did not consider Dr.
Rampulla’s finding that Ellington suffers from disabling medical side effects.
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Doc. 8 at 12. However, Ellington’s overlooks that Dr. Rampulla never stated that
Ellington’s medical side effects are disabling. In fact, although in describing the
medications effect on Ellington Dr. Rampulla selected the option that stated
“[d]rug side effects can be expected to be severe and to limit effectiveness due to
distraction, inattention, drowsiness, etc.,” Dr. Rampulla failed to select the option
that stated, “Patient will be totally restricted and thus unable to function at a
productive level of work.” (R. 377). The court has to assume that Dr. Rampulla,
who has treated Ellington since 2007, would have selected the disabling option if
he thought Ellington’s medications qualified for such a finding. Moreover,
Ellington’s contention misses the mark because the ALJ did not disregard Dr.
Rampulla’s opinion about the side-effects. In fact, she specifically stated “the
reported side effects of the medications taken by [Ellington] are noted. I have take
these factors into considerations when formulating the [RFC] capacity assigned
herein. Specifically, although not exclusively, due to possible side effects of the
drugs I have reduced the exertional level of the work of which [Ellington] is
capable and have restricted exposure to workplace hazards.” (R. 19). In other
words, contrary to Ellington’s contention, the ALJ considered the side effects of
Ellington’s medication when assigning the RFC is incorrect.
While Ellington obviously disagrees with the ALJ’s findings, substantial
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evidence supports the ALJ’s decision to give great weight to Dr. Rampula’s
opinion that Ellington does not have an underlying medical condition that is
consistent with the pain he alleged and to reject the rest of Dr. Rampulla’s
findings. Moreover, the ALJ provided reasons for rejecting Ellington’s pain
testimony. As such, the ALJ committed no error and the court must affirm the
B. The ALJ Adequately Developed the Record
Finally, Ellington alleges that “the ALJ failed in her duty to develop the
record by ignoring statements from two doctors to whom she appears to accord
great weight.” Doc. 8 at 14. Allegedly, the ALJ overlooked and misinterpreted
the medical records of Dr. McKenzie and Dr. Rampulla. Id. at 14-15. The law is
clear that “[t]he ALJ has a basic obligation to develop a full and fair record;”
however, “there must be a showing of prejudice before it is found that the
claimant’s right to due process has been violated to such a degree that the case
must be remanded to the Secretary for further development of the record.”
Graham v. Apfel, 129 F.3d 1420, 1422-23 (11th Cir. 1997). For the reasons stated
in Section A, supra, the court finds that the ALJ reviewed and utilized the
extensive medical records to make her RFC determination and to determine the
weight to give the medical opinions of Drs. McKenzie and Rampulla.
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Accordingly, Ellington failed to make the requisite prejudice showing necessary to
warrant a reversal.
Based on the foregoing, the court concludes that the ALJ’s determination
that Ellington is not disabled is supported by substantial evidence, and that the
ALJ applied proper legal standards in reaching this determination. The final
decision of the Commissioner is, therefore, AFFIRMED. A separate order in
accordance with this memorandum of decision will be entered.
Done the 19th day of June, 2012.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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