Cierocke v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 03/26/13. (CVA)
2013 Mar-26 PM 03:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
STEVEN F. CIEROCKE,
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
Civil Action Number
Plaintiff Steven F. Cierocke (“Cierocke”) brings this action pursuant to
sections 205(g) and 1631(c)(3) of the Social Security Act (“the Act”), 42 U.S.C.
§§ 405(g) and 1383(c)(3), 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, and,
therefore, AFFIRMS the decision denying benefits.
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I. Procedural History
Cierocke filed his applications for Title II disability insurance benefits
(“DIB”) and Title XVI Supplemental Security Income (“SSI”) on October 10 and
16, 2008, respectively, alleging a disability onset date of January 1, 2007,1 due to a
spinal injury, Hepatitis C, cirrhosis of the liver, depression, and being a recovering
alcoholic. (R. 156-162, 190, 198-99). After the SSA denied his applications on
January 12, 2009, Cierocke requested a hearing. (R. 78-82, 87-92). At the hearing
on July 16, 2010, Cierocke was 50 years old, with a GED and motorcycle
mechanic training he completed in 2002 and 2003, respectively, and had past
relevant work in construction as a roofer-steel fabricator and as an autobody repair
worker. (R. 182, 186, 199, 206). Cierocke has not engaged in substantial gainful
activity since his January 1, 2007, alleged onset date. (R. 198-99).
The ALJ denied Cierocke’s claims, which became the final decision of the
Commissioner when the Appeals Council refused to grant review. (R. 1-6, 16-34).
Cierocke then filed this action pursuant to 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
Cierocke initially claimed an onset date of May 3, 1991. (R. 198). However, he
amended this date during the hearing before the ALJ. (R. 41, 190, 198-99).
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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
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
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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
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
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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).
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ initially determined that
Cierocke met the insured status requirements of the Act through June 30, 2011.
(R. 21). Moving to the first step, although Cierocke worked for at least 18 months
after his alleged disability onset date, the ALJ found that Cierocke’s work did not
rise to the level of substantial gainful activity and that Cierocke met Step One. Id.
Next, the ALJ found that Cierocke satisfied Step Two because he suffered from a
severe combination of impairments including: “Degenerative Disc Disease,
cervical, with cervicalgia; Degenerative Disc Disease, lumbar spine, with
lumbago; Hepatitis C Infection; Depression; Substance Abuse, in remission, by
self report.” Id. The ALJ then proceeded to the next step and found that Cierocke
failed to satisfy Step Three because he “does not have an impairment or
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combination of impairments that meets or medically equals one of the listed
impairments[.]” (R. 22.) 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 he determined that Cierocke
has the residual functional capacity [“RFC”] to lift and/or carry 20
pounds occasionally and 10 pounds frequently, stand and/or walk for
about six hours, and sit for up to six hours in an eight-hour work day,
all with normal breaks, consistent with the performance of light
work...except as follows: The claimant is limited to jobs which
involve only occasional postural activities of stooping, kneeling,
crouching, or crawling, with only occasional climbing of ramps and
stairs, but no climbing of ropes, ladders, or scaffolds. He is further
limited to jobs that require only limited reaching with the bilateral
upper extremities, and which avoid concentrated exposure to
temperature extremes, humidity, unprotected heights or hazardous
machinery. He can perform only simple, routine, and repetitive tasks
as a result of pain as well as the side effects from prescribed
medications. He is also limited to jobs which do not require close
(R. 24). In light of Cierocke’s RFC, the ALJ held that Cierocke is “unable to
perform any past relevant work.” (R. 28). Lastly, in Step Five, the ALJ
considered Cierocke’s age,2 education, work experience, and RFC and determined
“there are jobs that exist in significant numbers in the national economy that
The court notes that the ALJ incorrectly stated that Cierocke “was born on March 30,
1960, and was 31 years old, which is defined as a younger individual (age 18-49), on the
amended alleged disability onset date.” (R. 28). Cierocke was actually 47 years old. However,
because Cierocke was still a “younger individual” under the Act, this misstatement was harmless
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[Cierocke] can perform.” (R. 29). Therefore, the ALJ found that Cierocke “has
not been under a disability, as defined in the Social Security Act, from January 1,
2007, through the date of this decision.” (R. 30).
The court turns now to Cierocke’s contentions that the ALJ erred by failing
to (1) determine that Cierocke’s RFC postural restrictions comport with “sedentary
work” and that Cierocke meets the Medical Vocational Rule (MVR) 201.14, (2)
assess Cierocke’s depression and make RFC findings based on his mental abilities,
and (3) fully develop the record by obtaining a medical source opinion by either a
medical expert or consultative examination. See doc. 10 at 5-10. The court
addresses each contention in turn.
Alleged failure to determine that Cierocke can perform only
sedentary work and to find that Cierocke meets MVR 201.14
Cierocke’s first contention of error is that the ALJ failed to restrict him to
sedentary work and, correspondingly, that he met MVR 201.14 under “Table No. 1
-Residual Functional Capacity: Maximum Sustained Work Capability Limited to
Sedentary Work as a Result of Severe Medically Determinable Impairment(s).”
C.F.R. Appendix 2 Subpart P of Part 404. The “grid” dictates a finding of
disability under MVR 201.14 for an individual who is limited to sedentary work,
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closely approaching advance age (defined as ages 50-54), has a high school
education or more, with past work experience described as skilled or semiskilled,
and with transferrable skills. See id. Thus, as it relates to Cierocke, the key issue
to resolve is whether the ALJ erred in finding that Cierocke’s RFC was limited to
a range of light work rather than sedentary work.
The court notes that the responsibility for assessing the RFC falls on the
ALJ, and, in doing so, the ALJ must consider “all the relevant evidence in [the
claimant’s] case record.” 20 C.F.R. §§ 416.945(a)(1); 416.946(c). Consistent
with this charge, the ALJ reviewed Cierocke’s medical record and determined that,
[e]xcept for some left ankle numbness, the most recent treating source
examinations yielded normal results, including a normal gait, no
neurological deficits, normal reflexes, sensation, strength,
coordination, mood and fine motor function, with no edema in the
extremities. A hip x-ray was also normal, and a lumbar MRI revealed
only mild degenerative changes.
(R. 26). Critically, the ALJ noted that
these findings need to be viewed in light of the fact that the claimant
worked until at least September 2008 as an auto body repair worker,
on a part-time basis, for nearly two years after his amended alleged
onset date...[and] the vocational expert [testified that] this work was
performed at the medium level of exertion. Indeed, the extensive
range of the claimant’s reported activities similarly runs counter to
the claimant’s allegation of disabling functional limitations. Indeed,
these activities, as amply documented in the record, would support a
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finding that the claimant actually has fewer exertional, postural, or
other limitations than is stated in the above-delineated residual
functional capacity assessment.
(R. 26-27) (emphasis in original). The ALJ concluded that Cierocke’s “exertional,
sitting, standing, and walking limitations were all consistent with the performance
of light work...[and] were included to provide the claimant with the greatest
benefit of the doubt to the extent that the limited evidence would allow.” (R. 27).
In short, while the ALJ found that Cierocke could perform light work, he noted
that the record actually supported a range of work with fewer limitations, closer to
the medium level of exertion Cierocke performed as an auto body repairer after his
alleged disability onset date of January 2007.
In reaching this finding, the ALJ reviewed Cierocke’s treatment records and
determined that Cierocke’s impairments limited him, at most, to light work. See
(R. 24-28). For instance, regarding the liver disorder, the ALJ noted that Howard
Brown, M.D., a gastroenterologist, obtained a liver biopsy in October 2008 which
revealed a Hepatitis C infection and early fibrosis, consistent very mild cirrhosis.
(R. 327, 344-46). Dr. Brown opined that the condition is reversible with treatment
and referred Cierocke to the University of Alabama at Birmingham (UAB)’s
Kirklin Clinic. Id. When Cierocke followed up with UAB in May 2009, he
“denied any signs or symptoms of decompensated liver disease [and] never had
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any GI bleed, hepatic encephalophathy, or paracentesis [but] did report off and on
right upper quadrant pain.” (R. 409). Consequently, Mohamad Alsibae, M.D.
recommended that Cierocke proceed with the treatment. Id.
As the ALJ noted, “the medical evidence falls silent regarding claimant’s
liver function after May of 2009, and there is little indication that it has worsened
beyond the early and mild stages...” (R. 25). Nonetheless, in light of the Hepatitis
C, the ALJ limited Cierocke from working closely with others, noting that “the
limitation relating to the claimant’s inability to work in close proximity to others
was added [to the RFC] by the undersigned out of an abundance of caution in view
of the Hepatitis C infection...” which others could contract. (R. 25). As is evident,
nothing in the record shows that Cierocke’s Hepatitis C or liver dysfunction
restricted him to sedentary work. In fact, the substantial evidence establishes that
Cierocke can work at a level higher than the light work limitation the ALJ gave
The rest of the medical evidence also supports the ALJ’s findings.
Regarding Cierocke’s cervical and back disorders, the ALJ noted a relatively
sparse treatment record, and that Cierocke visited Brian S. Claytor, M.D. of the
University Orthopedic Clinic complaining of chronic neck pain in May 2008. (R.
25, 351). However, Dr. Claytor’s physical exam revealed that Cierocke walked
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and stood normally without a limp or instability, had full strength, except for pain
and a limited range of motion observed in the neck and cervical spine. (R. 351).
Dr. Clayton opined that Cierocke had chronic mechanical neck pain, but without
any evidence to suggest neurologic dysfunction, and that he had “little to offer”
Cierocke. Id. Consequently, he recommended that Cierocke see a pain
management specialist. Id.
Shortly thereafter, Cierocke went to Bama Urgent Care complaining of
chronic pain in the neck, upper extremities and weakness in the right hand. (R. 26,
353). Stephen Roberts, D.O. assessed Cierocke and noted that on physical
examination, Cierocke had “4+/5 to 5/5 strength involving his right upper
extremity” and “[n]o discernible interosseus muscle weakness.” (R. 353). Dr.
Roberts diagnosed Cierocke with severe degenerative disk disease and
degenerative joint disease of the cervical spine, status post traumatic injury,
muscle spasm involving the cervicothoracic region, and chronic persistent pain.
Id. Dr. Roberts recommended referring Cierocke to pain management, but advised
“that Lortab is a totally inappropriate method of treating chronic day in and day
out pain.” Id. Consequently, Dr. Roberts referred Cierocke to Anodyne Research
Services in June 2008 for pain management, where Eugene Mangieri, M.D. treated
Cierocke. Dr. Mangieri prescribed methadone for Cierocke’s pain and treated
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Cierocke without any changes in dosage for two months. However, in September
2008, Dr. Mangieri stopped treating Cierocke after Cierocke tested positive for
marijuana on multiple lab reports. (R. 278, 284, 298).
The last treatment records provided are from Frederick Graham, M.D., who
treated Cierocke from June to September 2009. Dr. Graham noted that while
Cierocke had “numbness at L4 to the medial ankle on the right side,” Cierocke
nonetheless had full range of motion and his strength appeared normal. (R. 41113). An x-ray and MRI of Cierocke’s spine revealed degenerative disc disease in
the lower three lumbar levels with broad-based disc bulge at L4-5 that was slightly
to the right, and no evidence of neural impingement or definite focal herniation.
(R. 413-16). Consequently, Dr. Graham concluded that surgical intervention was
unnecessary and instead continued Cierocke on his current medications. Id.
In light of the medical record, and Cierocke’s reported daily activities,
including his auto mechanic work performed after his alleged onset date, the ALJ
determined that Cierocke had a physical RFC to occasionally lift and/or carry 20
pounds, frequently lift 10 pounds, and sit and/or walk for about 6 hours in an 8
hour workday. (R. 395-402). Consequently, the ALJ found that Cierocke could
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perform a limited range of “light work,” defined in 20 C.F.R § 404.1567(b)3 as
“only occasional postural activities of stooping, kneeling, crouching, or
crawling,...with only occasional climbing of ramps and stairs, but no climbing of
ropes, ladders, or scaffolds...[and] only limited reaching with the bilateral upper
extremities...” (R. 24).
Based on the court’s review of the record as a whole, including the opinions
of Cierocke’s physicians and his own work history, the ALJ had sufficient
evidence from which to develop the RFC. Moreover, ultimately Cierocke has the
burden of proving that he is disabled. See 20 C.F.R. § 416.912(c). To the extent
Cierocke claims he is disabled because he is allegedly limited to sedentary work,
he failed to make that showing here. In fact, his own testimony about the work he
did after his alleged onset date belies his contentions that he is limited to sedentary
work. Therefore, the substantial evidence supports the ALJ’s RFC determination
and conclusion that Cierocke can perform light work. Accordingly, the court finds
that Cierocke does not meet the qualifications for MVR 201.14.
20 C.F.R. § 404.1567(b) provides that “Light work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full or wide range of
light work, you must have the ability to do substantially all of these activities. If someone can do
light work, we determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of time.”
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Alleged failure to assess Cierocke’s depression and to include
mental RFC findings
Cierocke’s next contention of error is that the ALJ failed to assess his
depression and to include mental RFC findings. Doc. 10 at 6. Based on the sparse
medical record, the ALJ determined that Cierocke could “perform only simple,
routine, and repetitive tasks” and “limited [him] to jobs which do not require close
interpersonal contact.” (R. 24). Cierocke challenges this assessment and contends
that “[t]he ALJ’s mental RFC findings consisting of no close interpersonal contact
are inadequate because they are not specific enough to translate to quantifiable
vocational restrictions or to meet the requirements of SSR 96-8p.” Doc. 10 at 7.
The court disagrees.
Again, the ALJ is responsible for assessing the RFC. Consistent with the
charge to consider “all the relevant evidence in [the claimant’s] case record,” 20
C.F.R. §§ 416.945(a)(1); 416.946(c), the ALJ reviewed Cierocke’s medical record
regarding his mental condition, noting it
was especially sparse [since] there is no evidence of any
hospitalizations relating to mental symptoms, no tests of cognitive
function, no evidence documenting any episodes of decompensation
of any duration, and no visits to any psychiatrist, psychologist, social
worker, therapist, or speaking at a broader level, any mental health
professional at all. The most we are able to say from the treatment
records is that he was noted as having a normal mental state at a clinic
visit in May of 2008...but alleged depression when he presented at
Anodyne Research Services in June of 2008...was diagnosed with
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depression secondary to physical symptoms in a single encounter with
Steven A. Roberts, D.O., at an urgent care clinic...and that his
depression is characterized by Mohamad R. Alsibae, M.D., a treating
physician, as “very mild or slight” in nature and well controlled, so
that there was no need to change his existing medications in any way.
(R. 22-23) (emphasis in original). From this excerpt, it is clear the ALJ assessed
Cierocke’s depression. Specifically, when Dr. Alsibae treated Cierocke in May
2009, he noted that Cierocke “is socially active” and has “[d]epression, well
controlled, continue current management. We will make no changes. The patient
never had been hospitalized or never had any significant problems with depression
and with this very mild or slight depression, controlled on medicine, I do not see
any contraindication.” (R. 409-10). Moreover, regarding Cierocke’s alleged
polysubstance disorder, while lab reports indicated Cierocke had recent usage of
marijuana, Cierocke continuously denied any illicit drug use. Therefore, the ALJ
found that “viewing the record in its entirely, there is no pattern that can be
discerned that would lead to a finding that the claimant has an ongoing problem
with polysubstance use, or that he is not at this time in a state of remission with
respect to this mental disorder.” (R. 27).
The ALJ also gave “significant weight” to the psychiatric review technique
assessment performed by Robert Estock, M.D., a state agency medical consultant,
finding that his opinion was consistent with the record as a whole. (R. 23, 28,
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381-394). Dr. Estock opined that Cierocke had depression, but that it did not
satisfy the diagnostic criteria necessary to be considered disabling. (R. 384).
According to Dr. Estock, Cierocke had only moderate limitations in his restriction
of activities of daily living, difficulties in maintaining social functioning, and
difficulties in maintaining concentration, persistence, or pace, and no episodes of
decompensation of an extended duration. (R. 391). Also, Dr. Estock opined that
Cierocke was “not significantly limited” in his ability to remember locations and
work-like procedures, to understand and remember very short and simple
instructions, to carry out very short and simple instructions, to perform activities
within a schedule maintain regular attendance and be punctual within customary
tolerances, to make simple work-related decisions, to complete a normal work-day
and workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest
periods, to ask simple questions or request assistance, to accept instructions and
respond appropriately to criticism from supervisors, to maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness,
to respond appropriately to changes in the work setting, to be aware of normal
hazards and take appropriate precautions, to travel in unfamiliar places or use
public transportation, and to set realistic goals or make plans independently of
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others. (R. 403-04). Overall, Dr. Estock concluded that Cierocke “may have
moderate difficulty handling more detailed instructions but likely can handle even
these if they are broken down into simple 1-2 step tasks and he is given adequate
rehearsal.” (R. 405).
As the ALJ noted, the medical evidence is sparse concerning Cierocke’s
depression, except that he took medications for the condition. Based on the
record, the ALJ determined that Cierocke’s depressive disorder did not prevent
him from performing light work and, in particular, had not prevented him from
working as an auto body repairer after his alleged disability onset date. There is
simply nothing in the record to contradict the ALJ’s finding. To the contrary, the
substantial evidence supports the ALJ’s RFC determination. Ultimately, Cierocke
failed to show what specific findings the ALJ should have made regarding
Cierocke’s mental work-related functioning, and how these findings would have
changed the ultimate result. Accordingly, the court finds no error in the ALJ’s
Alleged failure to fully develop the record to obtain either
medical expert or consultative examination
Cierocke’s last contention of error is based on his claim that “the ALJ
should have developed the record to obtain an MSO by either ME [medical expert]
or CE [consultative examination] in light of the paucity of evidence for almost a
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year prior to the ALJ’s decision.” Doc. 10 at 9. 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 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 order 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 omitted). Indeed, the ALJ considered
Cierocke’s entire medical record available, as discussed supra, to reach a finding
that Cierocke is not disabled. Accordingly, based on this court’s review of the
record, the ALJ committed no error by failing to obtain another medical source
opinion from a medical expert or a consultative examiner since the findings the
ALJ made concerning his evaluation of the medical reports were sufficiently
extensive for the ALJ to make a RFC determination and to find that Cierocke was
not disabled. Moreover, Cierocke failed to show how obtaining medical expert
testimony would have aided the ALJ to make an informed decision, and how the
purported failure to develop the record prejudiced him. See 20 C.F.R. §
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416.912(c). Therefore, the substantial evidence supports the ALJ’s RFC
determination and finding that Cierocke is not disabled.
Based on the foregoing, the court concludes that the ALJ’s determination
that Cierocke 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 26th day of March, 2013.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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