Jones v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION and ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/11/2012. (AHI )

FILED
2012 Oct-11 AM 10:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
MELANIE JONES,
Claimant,
vs.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.

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Case No. CV-12-S-195-J

MEMORANDUM OPINION AND ORDER
Claimant, Melanie Jones, commenced this action on January 18, 2012, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
thereby denying her claim for supplemental security income benefits.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by

substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ improperly considered her use of an assistive device,
and that he failed to give appropriate weight to the opinion of her treating physician.
Upon review of the record, the court concludes that these contentions lack merit, and
that the Commissioner’s ruling is due to be affirmed.
First, claimant argues that the ALJ erred in evaluating her use of a cane to
assist in ambulation.1 Claimant acknowledged during the administrative hearing that
no physician had officially prescribed the use of a cane, but she nonetheless testified
that Dr. Ellen McFadden, her treating physician, had orally recommended that
claimant use a cane if she was feeling out of balance.2 Claimant later testified that the
most she could walk without using her cane was the length of her house.3 The ALJ
acknowledged this testimony in his administrative decision, stating, “She testified that
she has problems with standing and walking such that she uses a cane, but it is not
prescribed. . . . She testified that she could walk a short distance, about the length of
her house, without assistance . . . .”4

1

Claimant does not spell out why she thinks this alleged error would change the
administrative result. Presumably, it is because the required use of an assistive device to ambulate
would be inconsistent with the ALJ’s residual functional capacity finding that claimant could
occasionally climb stairs and ramps, stoop, kneel, and do bilateral lower extremity pedal operation.
See Tr. 21.
2

Tr. 81.

3

Tr. 93.

4

Tr. 22.
2

According to claimant, the ALJ’s “rejection” of her medical need for a cane is
inconsistent with the Commissioner’s statements in Social Security Ruling 96-9p.5
That Ruling addresses the implications of a residual functional capacity for less than
a full range of sedentary work on a claimant’s capability to do other work. In the part
of the Ruling relied upon by claimant, the Commissioner stated:
To find that a hand-held assistive device is medically required,
there must be medical documentation establishing the need for a
hand-held assistive device to aid in walking or standing, and describing
the circumstances for which it is needed (i.e., whether all the time,
periodically, or only in certain situations; distance and terrain; and any
other relevant information). The adjudicator must always consider the
particular facts of a case. For example, if a medically required
hand-held assistive device is needed only for prolonged ambulation,
walking on uneven terrain, or ascending or descending slopes, the
unskilled sedentary occupational base will not ordinarily be significantly
eroded.
SSR 96-9p. Claimant asserts that the ALJ improperly considered whether she had a
prescription for the cane, when the relevant inquiry actually is whether there is any
medical documentation of her need for the device. The court is not persuaded by
claimant’s argument. As an initial matter, the court does not see any material
difference between the ALJ discussing a prescription and him discussing some other
type of medical documentation. Furthermore, even if the ALJ’s mention of a
prescription was error, it was harmless, as there is no other medical documentation
of claimant’s need for an assistive device in the record. Claimant has offered only her
5

See doc. no. 9 (claimant’s brief), at 10.
3

own testimony that Dr. McFadden orally suggested that she use the cane, but there
is no authority to suggest that such testimony is sufficient to medically establish the
need for a cane or other assistive device.
Claimant suggests that the ALJ “should have developed the record further or
contacted the claimant’s treating physician to find out whether the claimant’s use of
a cane is in fact medically required.”6 It is true that the ALJ “has an obligation to
develop a full and fair record, even if the claimant is represented by counsel.” Nation
v. Barnhart, 153 F. App’x 597, 598 (11th Cir. 2005) (citing Cowart v. Schweiker, 662
F.2d 731, 735 (11th Cir. 1981)). Despite that fact, a claimant always bears the
ultimate burden of producing evidence to support her disability claim. See Ellison
v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20 C.F.R. §§ 416.912(a),
(c)). Thus, in discussing whether an ALJ should have ordered an additional
consultative examination, the Eleventh Circuit has stated that the
ALJ is not required to seek additional independent expert medical
testimony before making a disability determination if the record is
sufficient and additional expert testimony is not necessary for an
informed decision. Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir.
1999) (holding the record, which included the opinion of several
physicians, was sufficient for the ALJ to arrive at a decision); Holladay
v. Bowen, 848 F.2d 1206, 1209-10 (11th Cir. 1988) (holding the ALJ
must order a consultative exam when it is necessary for an informed
decision).
Nation, 153 F. App’x at 598 (emphasis supplied). Similar principles apply here.
6

Id. at 11.
4

There is no indication that the record was insufficient, or that the ALJ did not have
enough information to make an informed decision. It is not true, as claimant
suggests, that “[t]he medical evidence regarding the plaintiff’s need for a cane in this
case is unclear.”7 Instead, the record simply does not contain the evidence claimant
would like for it to contain, despite the fact that she was represented by counsel and
had the opportunity to produce such evidence if it existed. There was no reason for
the ALJ to seek additional evidence about claimant’s need for a cane.
Claimant’s final contention is that the ALJ erred in considering the opinion of
Dr. McFadden. The opinion of a treating physician “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Phillips v.
Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (internal citations omitted). Good
cause exists when “(1) [the] treating physician’s opinion was not bolstered by the
evidence; (2) [the] evidence supported a contrary finding; or (3) [the] treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Id. Additionally, the ALJ is not required to accept a conclusory statement
from a medical source, even a treating source, that a claimant is unable to work,
because the decision whether a claimant is disabled is not a medical opinion, but is
a decision “reserved to the Commissioner.” 20 C.F.R. § 416.927(e).
Social Security regulations also provide that, in considering what weight to
7

Id. (alteration supplied).
5

give any medical opinion (regardless of whether it is from a treating or non-treating
physician), the Commissioner should evaluate: the extent of the examining or
treating relationship between the doctor and patient; whether the doctor’s opinion can
be supported by medical signs and laboratory findings; whether the opinion is
consistent with the record as a whole; the doctor’s specialization; and other factors.
See 20 C.F.R. § 404.1527(d). See also Wheeler v. Heckler, 784 F.2d 1073, 1075
(11th Cir. 1986) (“The weight afforded a physician’s conclusory statements depends
upon the extent to which they are supported by clinical or laboratory findings and are
consistent with other evidence as to claimant’s impairments.”).
Dr. McFadden completed a Functional Assessment (Physical) form on March
1, 2010. She indicated that claimant could stand for ten to fifteen minutes at a time,
and for a total of three hours during an eight-hour work day. She could walk for a
total of two hours and sit for a total of three hours during an eight-hour work day. Dr.
McFadden noted that claimant was unable to maintain a constant position during the
twenty-minute examination. Claimant would not need a sit-stand option at work, but
she would need to lie down for approximately fifteen to twenty minutes every two
hours. Claimant could frequently lift and carry up to five pounds and occasionally
lift and carry up to ten pounds. She had no limit on her abilities to feel, talk, and
hear, and she could frequently handle, but she could only occasionally push/pull with

6

all extremities, climb, balance, stoop, kneel, crouch, crawl, and reach. Claimant could
occasionally be exposed to wetness, humidity, vibration, fumes, noxious odors, dusts,
mists, gases, poor ventilation, and moving mechanical parts, but she should avoid all
exposure to extreme heat and cold and working in high, exposed places. Claimant
would have occasional problems with depth perception, but all other visual functions
— including near acuity, far acuity, accommodation, color vision, and field vision —
could be performed frequently. Claimant could be exposed to “very loud” noises. Dr.
McFadden indicated that drug and/or alcohol use was not relevant to claimant’s
functional abilities.8
Dr. McFadden also completed a Medical Assessment (Mental) form on the
same date, March 1, 2010. She noted that claimant had mild impairment in her
abilities to follow work rules, deal with the public, deal with work stresses, function
independently, and maintain attention and concentration, and moderate impairment
in her abilities to relate to co-workers, use judgment, and interact with a supervisor.
Claimant would be capable of managing benefits in her own interest. She had
moderate impairment in her ability to understand, remember, and carry out complex
instructions; mild impairment in her ability to understand, remember, and carry out
detailed, but not complex instructions; and no impairment in her ability to understand,
remember, and carry out simple instructions. Claimant had no problem with
8

Tr. 287-88.
7

maintaining her personal appearance, but she had mild impairment in her abilities to
behave in an emotionally stable manner, relate predictably in social situations, and
demonstrate reliability.

Again, drugs and alcohol were not a factor in Dr.

McFadden’s assessment.9
Dr. McFadden completed a “Clinical Assessment of Fatigue/Weakness” form
on January 13, 2010.10 She indicated that fatigue/weakness was present to such an
extent as to negatively affect adequate performance of daily activities or work, that
physical activity would greatly increase claimant’s fatigue/weakness to such a degree
as to cause total abandonment of tasks, and that the side effects of claimant’s
prescribed medications could cause some side effects, but not to such a degree as to
create serious problems in most instances.11 Dr. McFadden also completed a Clinical
Assessment of Pain form on March 1, 2010. She indicated that claimant experienced
pain to an extent that would negatively affect the adequate performance of her daily
activities, that physical activity would greatly increase her pain to such a degree as
to cause distraction from or abandonment of tasks, that claimant’s medical condition
likely would cause her to be absent from work more than four times each month, and
that claimant’s prescribed medications would cause some limitations on claimant’s
9

Tr. 289-90.

10

The date on the face of this form appears to be January 13, 2010, but the court wonders if
that might be a mistake, considering that all of Dr. McFAdden’s other forms were dated March 1,
2010.
11

Tr. 291.
8

ability to perform work-related activities, but not to such a degree as to create serious
problems in most instances. Dr. McFadden also circled the word “yes” in response
to the question whether claimant’s medical condition could reasonably be expected
to produce the pain of which she complained.12
The ALJ accurately summarized Dr. McFadden’s findings in his administrative
decision, but he decided to give those findings no weight. He reasoned that the
degree of limitation assessed by Dr. McFadden was not supported by Dr. McFadden’s
own records or the records of any other reviewing or examining physician, was based
solely on claimant’s subjective complaints, was inconsistent with the objective
medical evidence of record, including x-rays and other diagnostic tests, and was
inconsistent with claimant’s reported activities of daily living.13
The court finds that the ALJ adequately articulated his reasons for rejecting Dr.
McFadden’s opinion, and that his conclusions were supported by substantial
evidence. The results of x-ray testing performed on November 1, 2007 reflected no
more than “mild” or “minimal” degenerative changes in any of claimant’s joints.14
Tests to detect rheumatoid arthritis and anti-nuclear antibodies were negative.15 The
record also supports the ALJ’s assessment of claimant’s daily activities,
12

Tr. 285-86.

13

Tr. 25.

14

See Tr. 280-82.

15

Tr. 219, 222.
9

demonstrating that she is the primary caregiver for four of children, two of whom
have special needs. Moreover, the ALJ’s decision was supported by the December
21, 2009 assessment of Dr. David Gordon, the consultative physical examiner. Dr.
Gordon’s examination findings were essentially normal, except for some
abnormalities in claimant’s musculoskeletal system. There was no apparent atrophy
or deformity noted, and no erythema or swelling of any joint. Claimant demonstrated
some tenderness to palpitation in the knees and middle spine and some crepitis on
range of motion in her knees. Range of motion in her lumbar spine, hips, and knees
was slightly limited. She had full grip strength and full flexion and extension of the
hips and knees. Sensation was intact in all extremities, and straight leg raising tests
were negative. Claimant had no problems hearing, speaking, sitting, standing or
walking in the hallway, and she did not use an assistive device. She experienced no
muscle spasms, and she could heel/toe walk and squat and rise at about fifty percent.16
The ALJ afforded Dr. Gordon’s assessment “considerable weight,” reasoning that Dr.
Gordon’s findings were based on direct observation and examination of claimant, as
well as an examination of her medical records, and that they were consistent with the
other medical evidence of record.17 The ALJ was entitled to give more weight to Dr.
Gordon’s opinion than Dr. McFadden’s if he found it to be more reliable and more
16

Tr. 265-71.

17

Tr. 25.
10

consistent with the medical evidence of record, and the court finds that his decision
to do so was supported by substantial evidence.
In summary, the court concludes the ALJ’s decision was based upon substantial
evidence and in accordance with applicable legal standards. Accordingly, the
decision of the Commissioner is AFFIRMED. Costs are taxed against claimant. The
Clerk is directed to close this file.
DONE this 11th day of October, 2012.

______________________________
United States District Judge

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