Murry v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/14/12. (ASL)
2012 Nov-14 AM 10:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
Civil Action Number
Plaintiff Terry Murry (“Murry”) 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”). Doc. 1. This court finds that the Administrative Law
Judge’s (“ALJ”) decision - which has become the decision of the Commissioner is supported by substantial evidence. Therefore, for the reasons elaborated herein,
the Court will AFFIRM the decision denying benefits.
I. Procedural History
Murry filed his application for Title II disability insurance benefits on June
Page 1 of 11
8, 2009, alleging a disability onset date of November 9, 2008, due to swelling and
pain in his neck and right shoulder. (R. 122-123, 149). After the SSA denied his
application on July 30, 2009, Murry requested a hearing. (R. 109-113, 69-70). At
the hearing on March 21, 2011, Murry was 43 years old with a high school
education, and his past relevant work included working as a welder, farmhand,
truck driver, heavy equipment oil changer, and forklift operator. (R. 78-103, 23,
122, 150). Murry has not engaged in substantial gainful activity since November
9, 2008. (R. 149).
The ALJ denied Murry’s claims on March 31, 2011, which became the final
decision of the Commissioner when the Appeals Council refused to grant review.
(R. 1-6, 14-28). Murry then filed this action pursuant to 42 U.S.C. § 1383(c)(3).
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 applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
Page 2 of 11
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 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 impairment which can be expected to result in death or which
Page 3 of 11
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
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), 416.920(a)-(f). Specifically, the Commissioner
must determine in sequence:
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
Page 4 of 11
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).
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ initially determined that
Murry met the insured status requirements of the Act through December 31, 2013.
(R. 19). Moving to the first Step, the ALJ found that Murry had not engaged in
substantial gainful activity since November 9, 2008, the alleged onset date, and,
therefore, Murry met Step One. Id. Next, the ALJ found that Murry satisfied Step
Two because he suffered from the severe impairments of “status post cervical
fusions times two with mild/moderate bulge and stenosis, status post bilateral
SLAP lesion repair, A/C joint resection and subacromial decompression on the
right shoulder, status post left shoulder arthroscopic subacromial decompression,
and hypertension.” Id. The ALJ then proceeded to the next step and found that
Murry failed to satisfy Step Three because he “does not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments.” Id. Although the ALJ 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:
[T]he claimant has the residual functional capacity [“RFC”] to
Page 5 of 11
perform light work...is restricted to no lifting/carrying or reaching
overhead on a repetitive basis but is not compromised as to sitting,
standing or walking. His pain is only mild to moderate.
(R. 20). In light of Murry’s RFC, the ALJ determined that Murry is “unable to
perform any past relevant work.” (R. 23). The ALJ then proceeded to Step Five
where she considered Murry’s age, education, work experience, and RFC, and
determined that “there are jobs that exist in significant numbers in the national
economy that the claimant can perform.” (R. 24). Because the ALJ answered Step
Five in the negative, the ALJ found that Murry “has not been under a disability, as
defined in the Social Security Act, from November 9, 2008, through the date of
this decision.” Id.
The court turns now to Murry’s contentions that the ALJ failed (1) to
develop the record by obtaining a medical source opinion (“MSO”) from a medical
expert and (2) to generate a physical RFC by a medical doctor. See doc. 6, at 6-8.
The court addresses each contention in turn.
Alleged failure to develop the record with MSO by medical expert
While an ALJ “has a basic duty to develop a full and fair record,” Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003), the ALJ is not obligated to
automatically obtain testimony from a medical expert. Rather, the ALJ “may ask
Page 6 of 11
for and consider the opinion of a medical . . . expert concerning whether ...[a
claimant’s] impairment(s) could reasonably be expected to produce [his or her]
alleged symptoms.” 20 C.F.R. § 404.1529 (emphasis added). Critically, the ALJ
is not required to obtain additional medical opinion when, as here, the record
contains sufficient evidence for the ALJ to make a disability determination.
Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007) (citation
Indeed, here, the ALJ considered the entire medical record to reach a
finding that Murry is not disabled. Specifically, although Murry alleges a
disability onset of November 2008, the ALJ reviewed medical evidence dating
back to 2006 when Murry had a worker’s compensation injury, including
treatment notes from Robert Robinson, M.D., William Standeffer, Jr., M.D.,
Stephen Ikard, M.D., and the Good Samaritan Clinic. (R. 22-23, 199-205, 239259, 281-309, 318-320, 349-351, 271-280, 325-341). As the ALJ pointed out, Dr.
Robinson, a neurological surgeon, treated Murry after his work injury and
reviewed an MRI which revealed post-fusion changes in Murry’s neck and
significant degenerative disc disease at C3-C4 with right C4 radiculopathy. (R.
22, 200, 202). Dr. Robinson performed an anterior cervical diskectomy and fusion
with iliac hip graft and short-statute plating on Murry in January 2007. (R. 22,
Page 7 of 11
203-204, 258-259). Post-operatively, Dr. Robinson reported that Murry’s x-rays
“demonstrate a solid fusion at C3-C4” and that the “C4-C5 interspace is normal.”
(R. 243). Critically, as the ALJ noted, Dr. Robinson released Murry to return to
work initially on light duty and then to full duty with no restrictions. (R. 22, 24445). In his final entry, Dr. Robinson reported that Murry was “doing quite well”
and added that Murry had “improved significantly” since undergoing another
surgery by Dr. Standeffer to treat bone spurring and a partially torn rotator cuff.
The ALJ also reviewed the treatment notes from Dr. Standeffer, who
performed a SLAP (superior labral tear from anterior to posterior) lesion repair
and subacromial decompression with AC joint resection on Murry’s right shoulder
in May 2007. (R. 22, 285, 288-289). The surgery significantly improved Murry’s
range of motion and pain, and Dr. Standeffer reported that Murry “is doing well
and has no complaints.” (R. 288-289).
The ALJ noted next that Murry visited the Good Samaritan Clinic with
complaints of onset of left shoulder pain and continued right shoulder and neck
pain in 2010. (R. 22, 326-27). Murry visited the Clinic initially in May 2009
during which the Clinic obtained MRIs of Murry’s right shoulder, cervical spine,
and thoracic spine. (R. 266-269). The right shoulder MRI demonstrated a
Page 8 of 11
“probable new inferior labral tear,” “mild tendinosis,” “a new degenerative cyst
formation in the superior lateral humeral head,” but “[n]o joint effusion is seen.”
(R. 266). The cervical spine MRI indicated a “fusion plate is present at C3-C4,”
“bony fusion at C6-C7,” but “no acute abnormality demonstrated.” (R. 268). The
thoracic spine MRI showed a “[n]ormal thoracic spine...[and] [n]o evidence of
acute bony traumatic injury.” (R. 269). When Murry returned in 2010, he again
underwent MRIs of his left shoulder and cervical spine which showed a “partial
tear of the posterior fibers of the distal supraspinatus,” “mild tendinopathy,” and
“peri-tendinitis” and “no abnormal internal cord signal. No fracture or
subluxation. Mild spondylosis in the mid cervical spine...Minimal annual bulging
at C5-6 on the right. No significant neural impingement is seen” in the cervical
spine. (R. 332-34).
Regarding Murry’s pain complaints, the ALJ noted that Dr. Ikard, another
orthopaedic surgeon, consulted on Murry’s case. Dr. Ikard gave Murry a left
shoulder injection of Kenalog, Lidocaine, and Marcaine in November 2010, which
proved helpful. (R. 23, 302-03, 350-51). When Murry returned to Dr. Ikard in
December, he had fairly good range of motion of the left shoulder, good strength,
and was neurologically intact. (R. 351). Dr. Ikard injected Murry’s shoulder
again and advised Murry to continue his exercise program. (R. 351).
Page 9 of 11
Finally, the ALJ pointed out that Murry’s visit with Dr. Ikard was
the last treatment note of record. There is no evidence of returned
visits to either treating orthopedist or general practitioner for any
complaints of pain or other limitations. Further, there is no indication
that any treating physician has prescribed narcotic pain medications.
[Murry] reported Celebrex, which is an anti-inflammatory medication
for pain....Overall, the objective medical evidence supports only mild
to moderate pain and other limitations. Recent x-rays of the cervical
spine indicated only mild spondylosis and minimal disc
bulging/stenosis. There was no repeated x-rays or MRIs on this
shoulders since his surgeries. However, physical examinations
showed some limited range of motion which would not preclude work
activity at the modified range of light duty. Thus, [Murry] is not
(R. 23). In other words, there was extensive medical evidence in the record from
which the ALJ could make her RFC determination and to find that Murry was not
disabled. Accordingly, the ALJ committed no error by failing to obtain a medical
Alleged failure to generate a physical RFC by a medical doctor
Murry contends next that the ALJ erred by failing to obtain a physical RFC
from a medical doctor. Doc. 6 at 8. Unfortunately for Murry, the ALJ is not
obligated to obtain a physical RFC assessment from a physician. See generally
SSR 96-8p and 20 C.F.R. § 416.945. Rather, the responsibility for assessing the
RFC falls on the ALJ. 20 C.F.R. § 416.946. In that regard, in determining
whether the claimant is disabled, the ALJ “will always consider the medical
Page 10 of 11
opinions in [the] case record together with the rest of the relevant evidence [he]
received.” 20 C.F.R. 404.15279(b). Here, as mentioned, supra, the ALJ had
sufficient medical evidence in the record from which to develop the RFC.
Therefore, it is irrelevant that the ALJ did not obtain a physical RFC assessment
from a physician. Based on the record before this court, the substantial evidence
supports the ALJ’s RFC determination and conclusion that Murry can perform
Based on the foregoing, the court concludes that the ALJ’s determination
that Murry is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
Done the 14th day of November, 2012.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
Page 11 of 11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?