Stinson v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 2/27/15. (SAC )
2015 Feb-27 PM 03:06
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
BRUCE L. STINSON,
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
CIVIL ACTION NO.
On June 22, 2010, the claimant, Bruce Stinson, applied for disability insurance benefits and
supplemental security income under Title II and Title XVI of the Social Security Act. (R. 26). The
claimant initially alleged in both applications disability commencing on November 8, 2008 because
of a knee injury, a back injury, and nerve damage in his right arm. (R. 26, 179). The claimant
amended his alleged onset date to May 28, 2009, during the administrative hearing. (R. 53). The
Commissioner denied the claims initially. (R. 26). The claimant filed a timely request for a hearing
before an Administrative Law Judge, and the ALJ held a hearing on December 8, 2011. Id.
In a decision dated January 23, 2012, the ALJ found that the claimant was not disabled as
defined by the Social Security Act and, thus, was ineligible for supplemental security income. (R.
35). On July 3, 2013, the Appeals Council denied the claimant’s request for review; consequently,
the ALJ’s decision became the final decision of the Commissioner of the Social Security
Administration. (R. 1). The claimant has exhausted his administrative remedies, and this court has
jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1631(c)(3). For the reasons stated below, this court
AFFIRMS the decision of the Commissioner.
II. ISSUES PRESENTED
The claimant presents the following issues for review:
whether substantial evidences supports the ALJ’s finding that the claimant has the residual
functional capacity to perform a full-range of light work without the ALJ obtaining a medical
source opinion to assess the claimant’s limitations; and
whether the ALJ properly included the required “function-by-function” assessment in
determining the claimant’s residual functional capacity.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must affirm
the Commissioner’s decision if the Commissioner applied the correct legal standards and if the
factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham v. Apfel,
129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 402 (1971).
The court must keep in mind that opinions such as whether a claimant is disabled, the nature
and extent of a claimant’s residual functional capacity, and the application of vocational factors “are
not medical opinions, . . . but are, instead, opinions on issues reserved to 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(d), 416.927(d). Whether the claimant meets the
listing and is qualified for Social Security disability benefits is a question reserved for the ALJ, and
the court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of
the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the
court were to disagree with the ALJ about the significance of certain facts, the court has no power
to reverse that finding as long as substantial evidence in the record supports it.
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look only
to those parts of the record that support the decision of the ALJ, but also must view the record in its
entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman
v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person
cannot “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 12 months.” To make this determination,
the Commissioner employs a five-step, sequential evaluation process:
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the
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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20 C.F.R. §§ 404.1520, 416.920.
The instant controversy revolves around the ALJ’s determination of the claimant’s residual
functional capacity. Residual functional capacity (RFC) is an assessment, based upon all of the
relevant evidence, of a claimant’s remaining ability to do work despite his impairments. Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). Residual functional capacity is assessed at both the fourth and fifth stages of the
sequential evaluation process. See 20 C.F.R. § 404.1520(e), (f).
The ALJ has a basic duty to develop a full and fair record; that duty, however, does not
require the ALJ to secure a medical source opinion regarding the claimant’s RFC. See 20 C.F.R.
§ 404.1546(c). “The failure to include [an RFC assessment from a medical source] at the State
agency level does not render the ALJ’s RFC assessment invalid.” Langley v. Astrue, 777 F. Supp.
2d 1250, 1261 (N.D. Ala. 2011); see Green v. Soc. Sec. Admin., 223 F. App’x 915, 923–24 (11th
Cir. 2007). An ALJ’s RFC determination is not a medical assessment, but is “based on all the
relevant evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1545(a)(1).
The ALJ’s duty to fully develop the record “requires the ALJ to order a consultative
evaluation when such an evaluation is necessary to make an informed decision.” Smith v.
Commissioner, 501 F. App'x, 875, 878 (11th Cir. 2012). The ALJ’s duty to order a consultative
examination can be triggered when an inconsistency in the evidence exists or the medical record as
a whole does not support a determination on the disability claim. 20 C.F.R. §§ 416.903(a), 416.919.
However, the ALJ does not err in denying a request for a consultative examination if substantial
evidence supports the ALJ’s decision. Holladay v. Bowen, 848 F.2d 1206, 1209–10 (11th Cir.
1988); see also Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984).
A single decision maker (SDM) assessment is not a medical source, and conclusions of a
SDM are not entitled to any weight. Siverio v. Comm'r of Soc. Sec., 461 F. App'x 869, 871–72 (11th
Cir. 2012) (“[T]he SSA's Program Operations Manual System (“POMS”) explicitly distinguishes
RFC assessments produced by an SDM from those produced by a medical consultant, and states that
‘SDM-completed forms are not opinion evidence at the appeals level.’”); see accord Hall v. Astrue,
2012 WL 2499177, *2–3 (N.D. Ala. Jun. 22, 2012) (finding ALJ erred in “affording any weight,
even minimal weight,” to the SDM’s assessment). State agency adjudicator opinions are not
included in 20 C.F.R. § 404.1513(a), listing acceptable medical sources. Accordingly, SDM
opinions are not entitled to any weight.
In assessing the claimant’s RFC, if the ALJ finds the claimant can do unlimited types of work
at a given exertional level, the law does not require the ALJ to use a vocational expert to determine
what kinds of work a claimant can do on the national level. Welch v. Bowen, 854 F.2d 436, 438–39
(11th Cir. 1988). Instead, the ALJ can rely solely on the grids to determine that work exists in
significant numbers in the national economy that the claimant is capable of completing. Id.
However, the ALJ may not rely on the grids if the claimant has nonexertional impairments that limit
basic working skills. Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir. 1985); see also Broz v.
Schweiker, 677 F.2d 1351, 1361 (11th Cir. 1982).
Social Security Ruling 96-8p provides that the RFC assessment
must first identify the individual's functional limitations or
restrictions and assess his or her work-related abilities on a functionby-function basis, including the functions in paragraphs (b), (c), and
(d) of 20 CFR 404.1545 and 416.945. Only after that may RFC be
expressed in terms of the exertional levels of work, sedentary, light,
medium, heavy, and very heavy.
1996 WL 374184 (July 2, 1996), at *1. The ALJ must first assess the claimant’s functional
limitations and restrictions and then expresses his functional limitations in terms of exertional levels.
See Castel v. Comm’r of Soc. Sec., 355 F. App'x 260, 263 (11th Cir. 2009); Freeman v. Barnhart,
220 F. App’x 957, 959–60 (11th Cir. 2007); see also Bailey v. Astrue, 5:11-CV-3583-LSC, 2013 WL
531075 (N.D. Ala. Feb. 11, 2013).
The ALJ must consider all of the relevant evidence in assessing the claimant’s functional
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 routine, side effects of medication), reports of daily
activities, 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.
SSR 96-8p, 1996 WL 374184, at *4–*5. However, the ALJ is not required to “specifically refer to
every piece of evidence in his decision,” so long as the decision is sufficient to show that the ALJ
considered the claimant’s medical condition as a whole. Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th Cir. 2005); see also Castel, 355 F. App’x at 263.
The claimant has a high school education and was fifty-two years old at the time of the
administrative hearing. (R. 52). His past work experience includes employment as a boilermaker
and a painter. (R. 22). The claimant alleges that he is unable to work because of a knee injury, back
injury, and nerve damage to his right arm. (R. 29). Originally, he alleged an onset date of November
8, 2008 (R. 179); he later amended his alleged onset date to May 28, 2009. Id. The ALJ found
several severe impairments, including: diabetes mellitus, degenerative disc disease of the thoracic
and lumbar spine, osteoarthritis of the left knee, and hypertension. (R. 28). On appeal, the claimant
contested the ALJ’s finding as to his residual functional capacity in light of these severe
impairments, as well as the non-severe impairments of a history of drug and alcohol abuse, PTSD,
and depression. (R. 29).
The claimant visited the Birmingham Veterans Affairs Medical Center (VAMC) numerous
times, from August 15, 2008 to May 3, 2011, reporting pain in his low back and neck. (R. 243, 335,
320, 289, 389, 431, 422, 846). On August 15, 2008, Dr. Christian L. Jimmerson examined the
claimant’s spine and noticed multilevel discongenic disease, worse at the C4-C5, C5-C6, and C6-C7
with anterior osteophytes, as well as facet arthropathy. (R. 243–244, 373). At this visit, Dr.
Jimmerson provided the claimant Lortab for the pain in his back and neck. (R. 373).
On October 1, 2008, the claimant reported back and right knee pain to Dr. Jimmerson at a
10 on a scale of 1 to 10. At this visit, he told Dr. Jimmerson that he would be going to Missouri to
work on boilers and would need something for pain. Dr. Jimmerson noted: “will continue current
The claimant's left knee pain began on October 6, 2008, when the claimant sustained injuries
to his left knee after hitting his knee on a bolt while working on a boiler in Missouri. On the night
of the accident, he called 911 to be lifted from the roof where he was working because his knee had
become swollen and painful, and he could not transport himself. Later, he found a piece of metal
in his knee, which he eventually massaged out, causing damage to a nerve. On October 13, 20008,
the claimant went to a local Missouri clinic for his knee injury. (R. 352, 680).
The claimant later visited the emergency room at the Birmingham VAMC on November 9,
2008, for continued knee pain, stating that his knee pain had persisted for three weeks after his
accident with the boiler. (R. 352, 363). The claimant rated his left knee pain at a 10 out of 10. (R.
357). At this visit, Mr. Robert D. Kachelhofer, a radiologist, under the supervision of Dr. Nicholas
Van Wagoner, reviewed an x-ray of the claimant’s left knee, finding no acute fracture or subluxation,
and no joint effusion or focal soft tissue abnormality. (R. 243). Ms. Sharon L. Beal, RN, also under
the supervision of Dr. Van Wagoner, instructed the claimant to take one Lortab tablet every six hours
for one week to relieve pain and to return to the emergency room if his symptoms worsened. (R.
On November 17, 2008, the claimant visited Mr. Luis Gonzales, a physical therapist at the
VAMC, under the supervision of Dr. Jimmerson. Mr. Gonzales provided the claimant with a knee
brace for his knee pain from his arthralgia and instructed him on how to use the brace. (R. 271).
On December 2, 2008, Dr. Jimmerson of the VAMC had the claimant sign a chronic narcotic
treatment contract. The claimant expressed continued knee pain at this visit. (R. 345).
On January 25, 2009, the claimant visited the VAMC emergency room again, this time
complaining of exacerbation of back pain and specifically requesting “narcotic pain relief.” The
claimant denied any injury or activity that prompted the pain in his back. At this visit, the claimant
told Dr. Jason E. Gunn that he had taken all of his Lortab pills previously prescribed by Dr.
Jimmerson and denied that he received 60 pills earlier in the month. He stated that he purchased
pain pills “on the street” because he did not have his own prescription supply. Dr. Gunn offered the
claimant muscle relaxants for pain relief, which the claimant refused. Dr. Gunn only provided the
claimant with four Lortab pills, instructing the claimant to “follow up in blue clinic [his primary care
doctor’s office] tomorrow if he is to receive any further narcotics.” (R. 335–36).
On February 10, 2009, the claimant visited another physical therapist, Mr. Jojit T. Enriquez,
under the supervision of Dr. Christian L. Jimmerson, for his knee pain. The claimant stated to Mr.
Enriquez that pain pills helped him manage the pain and swelling but that he is still bothered by the
pain; he gave a current pain rating of 8 out of 10 at that visit. Mr. Enriquez determined that the
claimant’s rehabilitation potential was excellent; the claimant's treatment plan included physical
therapy three times per week for four weeks. (R. 261–65, 329).
On February 11, 2009, the claimant visited Dr. Jimmerson again regarding his knee pain. Dr.
Jimmerson refilled the claimant’s Lortab prescription, and the claimant indicated the Lortab helped
with his pain. However, when the claimant returned to Dr. Jimmerson on February 24, 2009, Dr.
Jimmerson could not refill the claimant’s Lortab prescription because of the claimant’s cocaine use
in violation of his pain treatment contract. (R. 325, 328).
On March 22, 2009, the claimant visited Dr. Paul M. Perry at the VAMC emergency room
complaining of low back pain from a prior injury, worsening from picking up his kids. Dr. Perry’s
records indicate that the claimant previously took Lortab for pain but violated his pain contract by
using cocaine. Dr. Perry offered the claimant muscle relaxers, but the claimant refused them, stating
that he has not benefitted from them in the past and that “Lortab is the only thing that works for his
pain.” Dr. Perry only gave him a two days’ supply of Lortab and said that he can discuss further
treatment with his primary care provider. Dr. Perry also treated the claimant for elevated blood
pressure; however, the claimant left before getting his blood pressure stabilized. (R.320–22).
On October 8, 2009, the claimant visited Valetra M. Turner, Patient Support Assistant, and
she noted an “issue of repeat prescriptions,” likely because of the claimant’s repeated requests for
Lortab. (R. 317). Dr. Jimmerson had similarly noted the issue of repeat prescriptions on October
27, 2008. (R. 364).
On May 25, 2010, the claimant made a walk-in visit to his primary care physician, Dr.
Jimmerson, and again requested medicine refills. The record notes indicate that Delores Grayson,
RN, notified his doctor of this request but do not indicate if he received the refills. (R. 307).
On May 26, 2010, Dr. Michael Gates, a treating physician at the VAMC emergency unit,
examined the claimant’s lungs, heart, and skeletal structures because the claimant complained of
chest pain. Dr. Gates found that the lungs, heart, and mediastinum were unremarkable and “the
skeletal structures were within normal limits except for moderate degenerative changes in the
thoracic spine and small bilateral cervical ribs.” Dr. Gates advised the claimant that his blood
pressure was high and that he needed to keep a check on his weight. (R. 242, 297, 310).
On June 1, 2010, the claimant visited the Birmingham VAMC for a follow-up visit regarding
his elevated blood pressure. At this visit, the claimant stated that his mid- and low-back have
continued to give him pain and that he fell over the weekend when his left leg gave out. The
claimant said the pain in his low back was the primary source of his pain and described that pain as
continual and throbbing, ranking the severity at a 9 out of 10. Nurse practitioner Veronica A.
Maxwell noted “will refill Lortabs per Dr. Jimmerson.” (R. 289–290).
On August 3, 2010, L.N. Hickman, a non-examining state agency single decision maker,
assessed the claimant’s residual functional capacity. Mr. Hickman indicated that the claimant could
occasionally lift and/or carry up to 20 pounds at a time; frequently lift and/or carry up to 10 pounds
at a time; stand, walk, and sit for about 6 hours in each 8-hour workday; and push and pull arm or
leg controls with no restriction. As to postural limitations, Mr. Hickman opined that the claimant
could climb ramps and stairs occasionally but never ladders, ropes, or scaffolds. Mr. Hickman did
not, however, support this assertion with any explanation. Mr. Hickman expressed no manipulative,
visual, or communicative limitations. Mr. Hickman indicated that the claimant should avoid all
exposure to hazards, stating in his explanation only “avoid unprotected heights.” Mr. Hickman then
concluded that the claimant’s medically determinable impairments could reasonably be expected to
produce some stated symptoms and functional limitations but not at the level of severity alleged by
the claimant. (R. 85–92).
Mr. Hickman also completed a physical summary on August 3, 2010, stating that the
claimant alleged knee injury, back injury, and nerve damage to right arm. This report reviewed the
claimants medical records from the Veterans Administration Medical Center from June 2, 2008 to
July 11, 2010. (R. 386).
On September 7, 2010, the claimant again reported mid- to low-back pain to his primary care
provider at the VAMC, nurse practitioner Veronica A. Maxwell. At this visit, Ms. Maxwell
examined an MRI of the lumbar spine and found “mild heterogeneity of bone marrow signal and
density, probably due to chronic anemia” and “mild degenerative changes of the lumbar spine . . .
without significant central canal or neural foramina stenosis.” (R. 389–91).
The claimant began using a straight cane on September 7, 2010 in accordance with the
recommendation of physical therapist Robert Lane Ferreira. On September 21, 2010, notes
commenting on his use of the cane stated that the claimant entered the exam room with a steady gait,
using the cane effectively. (R. 432–36).
The claimant made routine visits to his primary care provider and saw nurse practitioner
Veronica Maxwell on September 21, 2010 and October 28, 2010. (R. 431, 423). The claimant
complained of continuous chronic back pain at both of these visits and said that he takes Lortab with
effective pain control. (R. 431). He also mentioned needing physical therapy for pain in his back and
lower leg at the September visit. (R. 434). At the October visit, Ms. Maxwell noted that the
claimant's blood pressure was elevated and refilled his Lortab prescription under the authority of Dr.
Mason for chronic back pain. (R. 422).
On December 6, 2010, the claimant visited nurse practitioner Veronica Maxwell complaining
of left shoulder pain. An x-ray of the claimant’s left shoulder by Dr. Sara George indicated that
“there may be a tiny inferior acromial osteophyte” but there were no acute fractures or dislocations
and unremarkable soft tissues. (R. 489).
The claimant began residing at a Veterans Affairs Residential Rehabilitation Treatment
Program (RRTP) at the Tuscaloosa VA Medical Center in March of 2011 after he became homeless.
(R. 61). On March 24, 2011, a Healthcare for Homeless Veterans Program treatment plan update,
documenting the claimant’s past drug abuse and rehabilitation plan, indicated that the claimant began
using cocaine during his service around 1978 and that he attempted to quit three times in the past but
“this time is for me.” (R. 709).
On March 29, 2011, a RRTP nursing assessment indicated that the claimant’s back and knee
were in pain at an intensity level of 4 out of 10 and that tramadol relieves the pain. In this report,
the claimant indicated that he had been residing at the Salvation Army for about three weeks because
of the foreclosure of his home. He reported that he has not worked or received any income since his
knee injury with the boilermaker but that he has applied for Social Security disability benefits. He
stated that he has used cocaine in the past and that his last use was March 3, 2011. The assessment
reflected that the claimant would benefit from substance abuse and PTSD groups, as well as
assistance with his compensation claims. The plan for assisting the claimant notes “help with claims
and housing.” (R. 694).
On May 3, 2011, the claimant, at a routine health care visit to his primary care physician Dr.
Jimmerson, again reported pain and asked about getting his pain medications started back. His legs
and ankles were swollen at this visit, and LPN Kristy Whitlow informed him that the swelling was
normal. (R. 846–47).
On May 27, 2011, a pharmacologic stress test conducted by Dr. Luvenia Wilcox Bender at
the Birmingham VAMC was normal. (R. 819–23).
On June 17, 2011, Dr. Rudy E. Vuchinich, psychologist at the Tuscaloosa Veterans Affairs
Medical Center, issued a statement diagnosing the claimant with PTSD. (R. 773–74).
On September 16, 2011, another x-ray of the claimant’s knee conducted by Dr. Essie Parker
at the Tuscaloosa VAMC showed no fracture or dislocation, “minimal” arthritis, and “mild
enthesopathy.” (R. 811).
The ALJ Hearing
After the Commissioner denied the claimant’s request for disability insurance benefits and
supplemental security income, the claimant requested and received a hearing before an ALJ on
December 8, 2011. (R. 47). At the hearing, the claimant testified that his pain in his lower back and
left knee most affect his capacity to work. (R. 65). However, the claimant also noted pain in his
wrists from nerve damage, some pain in his right knee, PTSD, and a history of drug abuse. (R. 64).
Regarding the effects of his alleged pain, the claimant testified that he can stand for only
about thirty minutes a time because his knees go out; can walk on flat, level ground for about a half
a block; and sit for about thirty-five or forty minutes, changing positions often. He also indicated
that he lays down for about four or five hours per day during the daylight hours and sleeps for about
eight and a half hours at night. To control the pain, the claimant said that he takes Lortabs four times
per day and, occasionally, Tramadol. He indicated that he does not use other methods to relieve his
pain such as heating pads or ice packs. (R. 62, 65).
The claimant testified that he currently resides at the Veterans Affairs Domiciliary
Residential Rehabilitation Treatment Program, where he has lived since March 2011, and that he will
remain there until he finds other housing. In addition to the above pain medications, the VA
Domiciliary also provides the claimant with treatment for various other medical problems, including
PTSD, diabetes, kidney disease, osteoarthritis, as well as alcohol and cocaine dependence. (R. 54).
The ALJ questioned the claimant regarding his past drug use. The claimant stated that he has
not used drugs since coming to the VA Domiciliary approximately nine and a half months prior to
the hearing; the claimant indicated that he was clean for an even longer period of six years in 1990
when he lived in a Pathfinder halfway house. When asked by the ALJ if he could remain clean from
drug use outside of the controlled environment of the Domiciliary facility, the claimant testified that
he would be able to refrain from drug use. (R. 61, 65).
Regarding his work history, the claimant testified that he worked as a commercial painter
from 1980 until he began his apprenticeship as a boilermaker in 1995, where he remained until 2008
when he injured his knee. The claimant testified that after the injury a doctor in Boulder, Missouri,
where the incident occurred, removed the metal from his knee and drained the fluid from it. He
testified that after the accident he transferred from working on boilers to working in a “tube trailer,
basically just sitting down” because he could no longer perform his previous work. Prior to working
as a painter and a boilermaker, the claimant served in the United States Army in South Carolina from
1978 to 1980 until he was honorably discharged as an MP2. The claimant’s military service caused
his PTSD; specifically, the claimant witnessed the killing of another soldier during a training
exercise. (R. 56–59).
The claimant stated that he has “flashes of PTSD” and takes medication to treat the PTSD
symptoms. He noted that medication and therapy are helping with his nightmares and sleeping but
that he still struggles with PTSD. (R. 66–67).
When asked about the activities he participates in at the VA Domiciliary, the claimant
testified that he volunteers assisting tornado victims, participates in social events, and could drive
if he had a car. He testified that he gets along with others, watches movies, and has no trouble with
his memory. He does chores at the VA Domiciliary, such as taking out the trash and replacing the
trash bags. The claimant also expressed his ability to perform daily activities such as cooking,
grocery shopping, managing his money, taking care of his personal hygiene, and using a telephone.
The claimant said that when given free time, he goes to visit his mother in Birmingham, Alabama.
When the ALJ asked him if he could conceive of any situation in which he could perform
some kind of regular work or if he was done working, he replied “I’m done.” When the ALJ
inquired about the claimant’s plan to secure housing and take care of himself if he was not found
disabled, the claimant simply replied, “I don’t know.” The claimant also indicated to the ALJ that
he had not visited the state vocational rehabilitation office to seek additional assistance. The ALJ
encouraged the claimant to seek out such assistance that may provide the claimant opportunities to
work in a non-physically taxing environment. (R. 73–74).
When questioned by his attorney, the claimant expressed that he cannot sit for long periods
of time, cannot pick up anything that he would have to hold for long periods of time, and can only
walk short distances such as a half of a block. He said that he uses a cane prescribed by his doctor.
Further, the claimant testified that the trash he takes out is a small trash can and that he only
transports it a short distance. He further stated that the heaviest items that he can lift at the grocery
store are bread and milk. (R. 74–75).
When asked by his attorney to rank his pain on a scale from 1 to 10, the claimant expressed
a pain level of 7 in his lower back that he experiences daily. He said that he takes Lortab that
soothes the pain but does not stop it. The claimant indicated, at his attorney’s request, that he could
pick up a key from the table with one hand and that he experienced problems with dropping items,
such as a can of soda, frequently. (R. 75–76).
With respect to his diabetes, the claimant testified that he takes insulin daily, checks his
blood sugar four times a day, and takes shots about four times a month. When asked what symptoms
inform him that his blood sugar is high, he replied that he breaks into a cold sweat, he becomes hot
or lightheaded, and his feet and ankles swell. (R. 77–79).
The ALJ asked the claimant about the attempted nerve conduction study to ascertain if he had
carpal tunnel; the claimant replied that he was unable to complete the procedure because it was too
painful. The claimant also indicated that he wears braces for his wrists. (R. 78–79).
A vocational expert, Ms. Strickland, testified concerning the classification of the claimant’s
past work and the ability of someone with the claimant’s limitations to perform that work or other
work. She indicated that the claimant’s work as a boilermaker is medium skilled with an SVP of 7
with no transferable skills to light or sedentary work. The ALJ noted that the VA doctors declined
to provide an opinion regarding the claimant’s functional limitations. The ALJ then asked Ms.
Strickland to assume that the claimant was a forty-nine year old individual at the alleged onset date
with a high school education and a history of medium work with an SVP of 7. The ALJ further
posited that the proposed individual could sit for 35–40 minutes; stand for 30 minutes at a time; walk
less than one block at a time; lift, carry, push and pull 10 pounds or less occasionally; and could not
sit, stand or walk sufficiently to complete a normal eight-hour workday or a forty-hour workweek.
Ms. Srickland responded that an individual under these constraints could not perform any of the
claimant’s past work as he did it, as it is generally done, or other full-time work. (R. 80).
The ALJ concluded by saying, “[l]ike most cases, this one turns on RFC, and now I’ve got
to figure out what to do with the period before [the claimant] reached the age of 50, and whether this
is the viable RFC at that point, or not.” (R. 81).
The ALJ’s Decision
On January 23, 2012, the ALJ determined that the claimant was not disabled under the Social
Security Act. The ALJ found that the claimant met the insured status requirements of the Social
Security Act through September 30, 2012 and had not engaged in substantial gainful activity since
the alleged onset of disability. The ALJ found that the claimant suffered from severe impairments
of diabetes mellitus; degenerative disc disease of the thoracic and lumbar spine; osteoarthritis of the
left knee; and hypertension. The ALJ found the claimant’s history of drug and alcohol abuse, PTSD,
and depression as non-severe. He found, however, that none of the claimant’s impairments, singly
or in combination, manifested the specific signs and diagnostic findings required by the Listing of
Impairments. Consequently, the ALJ concluded that the claimant had the residual functional
capacity to perform a full-range of light work. (R. 26–30).
To support his conclusion, the ALJ noted that the claimant’s diabetes mellitus did not prevent
the claimant from performing light work activity because his symptoms, according to the medical
evidence, were controlled with medication. The ALJ found that the claimant occasionally requires
insulin and uses prescription diabetic shoes as a precautionary measure, but he found that the
claimant’s neurological examinations were normal and he had no deficits in his cranial nerve
function, motor strength, sensation, or reflexes. Thus, the ALJ concluded that the claimant’s
diabetes symptoms were not disabling and that the claimant can perform light work. (R. 32).
Next, the ALJ considered the claimant’s back and neck pain. The ALJ pointed to medical
records showing that, although x-rays of his spine indicated degenerative disc disease and a fracture
of the transverse process, overall the claimant responded well to oral medication and physical
therapy. The ALJ further noted that the claimant had no significant ambulation difficulties and had
only one exacerbation of his back pain in 2009 because of heavy lifting. Thus, the ALJ found that
his back and neck pain were not disabling. (R. 32).
Based on x-rays showing only mild osteoarthritis but no joint effusion, fracture, dislocation,
or other abnormality, the ALJ found that the claimant’s knee pain was not disabling to the extent
alleged. The ALJ also referenced medical records indicating that the claimant responded well to
medication and physical therapy. The ALJ concluded that the evidence of his daily living activities
and lack of ambulation difficulties further supported the conclusion that the claimant’s knee pain was
not disabling. (R. 32).
The ALJ found that the evidence related to his hand and wrist pain similarly did not support
disabling symptoms that would preclude light work. The ALJ noted that the claimant cooks, does
laundry, washes dishes, and fishes—all requiring frequent movement of the hands and wrists. The
ALJ further stated that no documented evidence showed significant problems with his hands; the
only medical evidence relevant to his wrist pain was an incomplete nerve conduction study, showing
possible neuropathy at the wrist. (R. 32–33).
Regarding the pain in the claimant’s arm and shoulder, the ALJ concluded that the objective
evidence did not support disabling pain that would prevent work activity. He noted that no medical
evidence demonstrated chronic or disabling pain; an x-ray of the left shoulder demonstrated “a tiny
inferior acromial osteophyte at the AC joint but otherwise unremarkable.” Moreover, the ALJ noted
that the claimant’s daily activities such as performing household chores, shopping, visiting, engaging
in social activities, volunteering, watching television, playing bingo, and reading showed that his arm
pain was not disabling. (R. 32–33).
The ALJ determined that the claimant’s hypertension was minimally restrictive and did not
preclude substantial gainful activity. In support of his decision, he noted that although “the objective
medical evidence established a diagnosis and treatment for hypertension,” the claimant’s
hypertension was controlled with oral medication. Further, the claimant’s cardiac examinations were
completely normal with no history of shortness of breath or dyspnea on exertion. (R. 33).
In assessing the claimant’s residual functional capacity, the ALJ rejected the nonexertional
limitations in the assessment by the state agency adjudicator, L.N. Hickman, noting that the
treatment records do not support his opinion and that the adjudicator is not a physician. As to the
claimant’s functional limitations, the VA doctors declined to give an opinion. However, the ALJ
found that the longitudinal treatment records were “comprehensive and provide a substantial and
rational basis for assessing residual functional capacity.” (R. 33–34).
Regarding the claimant’s functional limitations, the ALJ noted that nothing in the medical
record precludes the claimant from lifting up to 20 pounds at a time with frequent lifting and carrying
of up to 10 pounds, walking or standing for about 6 hours in an 8 hour day, pushing and pulling arm
or leg controls, performing basic mental functions in a work setting necessary for unskilled work,
and performing basic mental work activities. Thus, the ALJ held that the claimant has the residual
functional capacity to perform a full-range of light, unskilled work as defined at 20 C.F.R. §
404.1567(b) by direct application of Medical Vocational Rule 202.14. (R. 34).
The ALJ found, accordingly, that the claimant cannot do his past relevant work as a
boilermaker, as it was extertionally medium and semi-skilled. However, the ALJ concluded that
“[c]onsidering the claimant’s age, education, work experience, and residual functional capacity, there
are jobs that exist in significant numbers in the national economy that the claimant can perform.”
Thus, the ALJ determined that the claimant was not disabled. (R. 35).
The claimant argues that the ALJ improperly relied solely upon his own personal opinion and
the opinion of a single non-medical source in assessing the claimant’s residual functional capacity
and that the ALJ failed to perform the required function-by-function assessment. To the contrary,
this court finds that the ALJ properly considered all the relevant evidence in determining the
claimant’s residual functional capacity and properly performed a function-by-function assessment,
and that substantial evidence supports his decision.
Issue I: The ALJ's Residual Functional Capacity Assessment
The claimant asserts that the ALJ’s RFC assessment is based solely upon his own unqualified
medical judgment and the opinion of a single non-medical source. The claimant specifically
contends that the ALJ should not have assessed his residual functional capacity absent the benefit
of a medical source opinion. This court disagrees, finding that a medical source statement was not
necessary because substantial evidence supported the ALJ’s decision.
The ALJ has a basic duty to develop a full and fair record. However, the regulations nowhere
provide that a record is incomplete if a medical source does not provide a statement regarding the
plaintiff's functional limitations. To the contrary, the regulations explicitly state: “the lack of [a]
medical source statement will not make the report incomplete.” 20 C.F.R. § 404.1513(b)(6); see
Langley v. Astrue, 777 F. Supp. 2d 1250, 1261 (N.D. Ala. 2011). The ALJ’s duty to fully develop
the record does not require him to order a consultative evaluation unless such an evaluation is
necessary to make an informed decision. See Smith v. Commissioner, 501 F. App’x, 875, 878 (11th
In the present case, the ALJ specifically referenced the medical evidence and the testimony
of the claimant upon which he relied. He pointed to x-rays showing only moderate degenerative
changes and mild arthritis in the claimant’s spine and records documenting the significant reduction
of the claimant’s back pain from medication and exercising. The ALJ also referenced x-rays of the
claimant’s knee demonstrating only mild osteoarthritis but no joint effusion or other abnormality.
The ALJ noted that although the claimant had been prescribed a knee brace, he remained
independent of activities of daily living with no ambulation difficulties. With respect to the
claimant’s diabetes, the ALJ noted that according to the VA treatment notes his symptoms are
controlled with medication. (R. 31–34).
The ALJ further relied upon the claimant’s own testimony of his activities to support his
residual functioning capacity assessment. He referenced the claimant’s ability to perform household
tasks, wash dishes, do laundry, grocery shop, engage in social activities, fish, attend church, visit his
mother, volunteer with tornado victims, and attend AA meetings. (R. 31).
Thus, the ALJ did not rely solely upon his own opinion in assessing the claimant’s residual
functional capacity. Because substantial evidence supports the ALJ’s decision and a medical source
statement is not required to make the record complete, the claimant’s argument that the ALJ erred
by failing to consider a medical source statement in assessing the claimant’s residual functional
capacity is unavailing.
Further, just as the ALJ did not rely solely upon his own opinion, the ALJ also did not rely
exclusively upon the opinion of the state agency adjudicator, as the claimant asserts. The ALJ
properly acknowledged that the state agency adjudicator was not a physician and rejected the
nonexertional limitations found by the state agency adjudicator where they were inconsistent with
the physician’s records. (R. 33).
A state agency adjudicator is not a medical source and his conclusions are not entitled to any
weight. Siverio v. Comm’r of Soc. Sec., 461 F. App’x 869, 871–72 (11th Cir. 2012). Because a state
agency adjudicator’s opinion is not entitled to any weight, the ALJ did not err in failing to credit
SDM Hickman’s conclusions regarding the claimant’s nonexertional limitations.
Moreover, here, Mr. Hickman did not provide any explanation for his proposed postural
limitations, as the instructions on the assessment form require. Accordingly, the ALJ was correct
in affording no weight to Mr. Hickman’s conclusions regarding the claimant’s nonexertional
The ALJ was also proper in relying upon the grids to determine what work in the national
economy the claimant can perform. In assessing the claimant’s RFC, the ALJ can rely exclusively
upon the grids if he determines that the claimant can perform unlimited types of work at a given
exertional level. Welch v. Bowen, 854 F.2d 436, 438–39 (11th Cir. 1988). In this case, the ALJ
concluded, based upon substantial evidence, that the claimant has the capacity to perform a fullrange of light work, without any nonexertional limitations. And, as illustrated above, the ALJ’s
rejection of the SDM’s nonexertional limitations was proper. Thus, the ALJ’s reliance on the grids
was appropriate, and substantial evidence supports his RFC finding.
Issue 2: Function-by-Function Assessment
The claimant further contends that the ALJ failed to perform a function-by-function
assessment prior to expressing the claimant’s RFC in terms of exertional levels. However, to the
contrary, the ALJ did discuss the claimant’s specific functional limitations prior to assessing his RFC
in terms of exertional level.
According to Social Security Ruling 96-8p, the ALJ must first assess the claimant’s
functional limitations and restrictions and then express his functional limitations in terms of
exertional levels. 1996 WL 374184; see Castel v. Comm’r of Soc. Sec., 355 F. App’x 260, 263 (11th
Cir. 2009); Freeman v. Barnhart, 220 F. App’x 957, 959–60 (11th Cir. 2007); see also Bailey v.
Astrue, 5:11-CV-3583-LSC, 2013 WL 531075 (N.D. Ala. Feb. 11, 2013). Discussing the claimant’s
medical record and citing a regulation that defines the exertional demands of the claimant's RFC
satisfies this requirement. See Castel v. Comm’r of Soc. Sec., 355 F. App’x 260, 263 (11th Cir.
2009); Freeman v. Barnhart, 220 F. App’x 957, 959–60 (11th Cir.2007). The ALJ's decision does
not have to reference every specific piece of evidence that the ALJ evaluated, as long as the decision
shows that he considered the claimant's medical condition as a whole. Castel, 355 F. App’x at 263.
After thoroughly reviewing the relevant evidence in the record, as discussed above, the ALJ
articulated that nothing in the record would preclude the claimant from frequently lifting up to 20
pounds, carrying up to 10 pounds, walking or standing a good deal, pushing and pulling arm or leg
controls, and performing basic mental functions. The ALJ rejected the nonexertional limitations in
the state agency adjudicator’s assessment, finding those limitations contrary to the objective medical
evidence. Accordingly, the ALJ then found that the preponderance of the medical evidence
supported the assessment that the claimant can perform “a full-range of light, unskilled work” as
defined at 20 C.F.R. § 404.1567(b) by direct application of the Medical Vocational Rule 202.14, and
that such work exists in significant numbers in the national economy. (R. 30–34).
This court concludes that the ALJ properly performed a function-by-function assessment
prior to expressing the claimant’s RFC in terms of exertional level and that substantial evidence
supports his decision. Therefore, this court affirms the decision of the Commissioner.
For the reasons stated above, this court concludes that the decision of the Commissioner is
supported by substantial evidence and is to be AFFIRMED.
A separate order will be entered in accordance with this Memorandum Opinion.
DONE and ORDERED this 27th day of February, 2015.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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?