Lambeth v. Astrue

Filing 16

Order that the decision of the Commissioner of Social Security denying plaintiff's benefits be AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 7/12/2011. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSEPH LAMBETH,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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) CIVIL ACTION NO. 10-00232-N
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ORDER

Plaintiff, Joseph Lambeth, filed this action seeking judicial review of a final
decision of the Commissioner of Social Security (“Commissioner”) that he was not
entitled to either disability insurance benefits (“DIB”) under Title II of the Social
Security Act (the Act) or Supplemental Security Income (“SSI”) under Title XVI of the
Act. This action has been referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Fed. R.Civ.P. 73 (doc. 15) and pursuant to the consent of the parties (doc. 14). Further,
plaintiff’s unopposed motion to waive oral arguments (doc. 12) was granted on January
18, 2011 (doc. 13). Upon consideration of the administrative record (doc. 8) and the
parties’ respective briefs (docs. 9 and 10), the undersigned concludes that the decision of
the Commissioner is due to be AFFIRMED.
I. Procedural History.
Plaintiff Lambeth filed an application for disability insurance benefits on
November 19, 2007, claiming an onset of disability as of May 20, 2007. (Tr. 100-103).
1

Lambeth also filed an application for Supplemental Security Income benefits on
November 19, 2007 (Tr. 93-99), with a protective filing date of November 17, 2006 (Tr.
86). These applications were initially denied on January 4, 2008. (Tr. 68-72, 75-77). On
February 21, 2008, Lambeth requested a hearing before an Administrative Law Judge
(“ALJ”). (Tr. 80-81)1. Lambeth’s request was acknowledged on February 28, 2008, and
Lambeth was instructed on the procedures that would follow. (Tr. 82-83). On May 28,
2009, Lambeth was notified that his case would be heard on July 16, 2009. (Tr. 21, 26).
The hearing was held as scheduled on July 16, 2009. (Tr. 44-65).
On August 26, 2009, the ALJ issued a decision denying Poe’s applications. (Tr. 917). The ALJ concluded that Lambeth retained the residual functional capacity to
perform less than medium2 exertional work. (Tr. 12). The ALJ determined that there are
other jobs existing in significant numbers in the national economy which Lambeth can
perform. (Tr. 16). Consequently, the ALJ concluded that Lambeth “has not been under a
disability, as defined in the Social Security Act, from May 20, 2007, through the date of
this decision.” (Tr. 16).
Lambeth requested review by the Appeals Council, and on March 6, 2010, the
Appeals Council refused to overturn the ALJ’s decision (Tr. 1-4), thereby making the

1

Plaintiff's applications were processed pursuant to 20 C.F.R. §§ 404.906(b)(4), 416.1406(b)(4),
whereby after the initial determination, the reconsideration step in the administrative review process was
eliminated, and the claimant could immediately request an administrative hearing. All references to the
Code of Federal Regulations (C.F.R.) are to the 2010 edition.
2

"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or

carrying of objects weighing up to 25 pounds." 20 C.F.R. §§ 404.1567(c), 416.967(c).

2

ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. § 404.981 (2010).
Lambeth appeals from that decision and has exhausted all his administrative remedies.
II. Issues on Appeal.
1.

Whether the ALJ failed to properly develop the record.

2.

Whether substantial evidence supports the ALJ’s residual functional
capacity findings.

III. Findings of Fact.
A. Medical Evidence.
On May 19, 2007, Lambeth presented to the emergency room after apparently
having a seizure and falling and hitting his head at home (Tr. 161). The admitting
physician, William Whittle, M.D., noted that this was a “new onset seizure” in that
“previous episodes [were] years ago.” (Tr. 163). Lambeth was started on Dilantin, an
antiseizure medication (Tr. 175). Dr. Whittle reported that he had not seen Lambeth in
years, noting that it was when he had a seizure in 1987 (Tr. 175). A CT scan and MRI of
Plaintiff's brain taken during the 2007 hospitalization were unremarkable, and an
echocardiogram was normal (Tr. 165, 178). When Lambeth was discharged from the
hospital two days later, Dr. Whittle’s discharge summary indicates a final diagnosis of
“Seizures, questionable seizure disorder” (Tr. 175).
Dr. Whittle referred Lambeth to Hamp Greene, M.D., a neurologist, who
examined him in June 2007 (Tr. 182). Dr. Greene noted that Lambeth likely had a major
motor seizure in 1987 and, following a car accident in 1994, was in a coma for 12 days
(Tr. 182). Dr. Greene could find no focal abnormalities and noted that Lambeth’s EEG
was unremarkable (Tr. 182). Dr. Greene diagnosed Plaintiff with a seizure disorder,
3

likely idiopathic epilepsy, and advised him to continue taking Dilantin (Tr. 182).
Lambeth was instructed to return to Dr. Green in “one year or sooner if needed” (Tr.
182).
On January 22, 2008, in a brief note hand-written on a prescription form, Dr.
Whittle stated that Lambeth was totally disabled due to a seizure disorder (Tr. 196). In a
July 2008 letter, Dr. Whittle again stated that Lambeth was totally disabled due to severe
seizure disorder (Tr. 197). Dr. Whittle also indicated that Lambeth had other medical
problems consistent with joint and shoulder pain (Tr. 197). Dr. Whittle stated that
Lambeth should not drive and should avoid high places and swimming (Tr. 197).
B. Other Evidence.
Lambeth was born in 1969 and was, therefore, 37 years old on his alleged
disability onset date and 40 years old on the date of the ALJ’s opinion (Tr. 17, 93).
Lambeth has a high school education (Tr. 119) and has worked as a diesel mechanic and
machine operator (Tr. 61, 116).
In the Daily Activities Questionnaire completed by Lambeth in December 2007,
he declared that he took care of his personal needs without assistance, cooked meals,
cleaned the rooms of his mobile home, took out the trash, shopped for personal items and
groceries without assistance, watched television, read the newspaper and magazines,
visited with friends and family, drove, and worked on his truck (Tr. 133-37).
Lambeth testified at his administrative hearing that he stopping working in August
2006 when he was incarcerated for domestic violence (Tr. 51-52). He served nine
months incarceration and was released April 30, 2007 (Tr. 53). Shortly thereafter, in
May of 2007, Lambeth was hospitalized for a seizure (Tr. 53). Lambeth suffered a prior
4

seizure in 1987 at which time he was hospitalized for a week (Tr. 53). Lambeth testified
that he took no seizure medication between 1987 and May of 2007 (Tr. 54). He began
taking seizure medication following a seizure in 2007 and has not had another seizure
since that time (Tr. 54-56). Lambeth also stated that he possessed a valid driver's license
and that his physician recently had allowed him to start driving again (Tr. 56-57).
Lambeth testified that he was in a coma for a month following a car accident in
1999 (Tr. 51, 53). He had "spurs" in his right shoulder and needed surgery but did not
have health insurance (Tr. 60). He also had six "crushed" vertebrae in his back (Tr. 60).
However, no medical records have been proffered which either confirm these conditions
or demonstrate that any specific physical limitations were ever assessed as a result of
these conditions.3
Lambeth also testified that, upon his release from jail, he was required to do 100
hours of community service and attend an anger management course (Tr. 57-58). His
community service was performed during the weekdays, five days a week, at the Brewton
Police Department where he “helped them clean up cars and stuff like that” (Tr. 58). His
anger management classes were every Tuesday night for 30 or 40 sessions (Tr. 58).
Lambeth further testified that he spends just about every day hanging around the
Speed Shop in Brewton with his friends socializing and visiting (Tr. 59). At his home, he
mows the lawn and does yard work, as well as washing and drying clothes (Tr. 59).

3

The ALJ asked Lambeth’s attorney at the hearing whether the records was complete (Tr. 47).
Lambeth’s attorney stated that Dr. Whittle saw plaintiff on one occasion in January 2009 and that Dr.
Whittle’s treatment record for that occasion was not part of the file but that the record was “complete up
to that point.” (Tr. 47). When asked by the ALJ whether he wished to submit the January treatment
record, Lambeth’s attorney stated that Lambeth’s testimony would “cover it.” (Tr. 47).

5

According to Lambeth, “[t]here ain’t nothing I can’t do, but I’m a liability if I go to work
anywhere” (Tr. 59).
C.

Vocational Expert Testimony.

The ALJ asked Eric Anderson, a vocational expert (VE), to consider a
hypothetical individual who was Lambeth’s age, with the same education, and work
experience as Lambeth. The hypothetical individual also was assigned the following
limitations: no work around hazards, machinery, unprotected heights, etc., but without
exertional limitations (Tr. 62). The ALJ asked whether there were occupations that the
hypothetical person could do (Tr. 62).
The VE responded that the individual could perform light4 jobs, including
assembler (Dictionary of Occupational Titles5 (DOT) # 915.687-034) (7,000 jobs in
Alabama and 370,000 jobs in the United States); cashier (DOT # 211.462-010) (56,000
jobs in Alabama and 3.5 million jobs in the United States); and security guard (DOT #
372.667-034) (13,000 jobs in Alabama and 520,000 jobs in the United States) (Tr. 62).
IV. Conclusion of Law.
A.

Standard of Review.

In reviewing claims brought under the Act, this Court's role is a limited one.
Specifically, the Court's review is limited to determining: 1) whether the decision is

4

"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." 20 C.F.R. §§ 404.1567(b), 416.967(b).
5

U.S. Dep't of Labor, Employment & Training Admin., Dictionary of Occupational Titles (4th ed.

1991).

6

supported by substantial evidence, and 2) whether the correct legal standards were
applied. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Thus, a court may not
decide the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). Rather, the
Commissioner's findings of fact must be affirmed if they are based upon substantial
evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that substantial evidence is
defined as “more than a scintilla but less than a preponderance,” and consists of “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion[ ]”). In determining whether substantial evidence exists, a court must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
Commissioner's decision. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
B.

Applicable Law.

An individual who applies for Social Security disability benefits or supplemental
security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. §
416.912. Disability is defined as the "inability to do 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); 20 C.F.R. §
404.1505(a); 20 C.F.R. § 416.905(a). The Social Security regulations provide a five-step
sequential evaluation process for determining if a claimant has proven their disability.
See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must
prove that he or she has not engaged in substantial gainful activity. At the second step,
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the claimant must prove that he or she has a severe impairment or combination of
impairments. If, at the third step, the claimant proves that the impairment or combination
of impairments meets or equals a listed impairment, then the claimant is automatically
found disabled regardless of age, education, or work experience. If, however, the
claimant cannot prevail at the third step, he or she must proceed to the fourth step where
the claimant must prove inability to perform their past relevant work. Jones v. Bowen,
810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this
burden, the examiner must consider the following four factors: (1) objective medical facts
and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the
claimant's age, education and work history. Id. at 1005. Once a claimant meets this
burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant
is capable of engaging in another kind of substantial gainful employment which exists in
significant numbers in the national economy, given the claimant's residual functional
capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th
Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant
can perform, the claimant must prove inability to perform those jobs in order to be found
disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); see also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562,
1564 (11th Cir. 1985)).
C.

Discussion.
1.

The ALJ complied with his duty to develop the record.

Plaintiff maintains that the ALJ erred by failing to properly develop the record.
Specifically, plaintiff argues that in light of Dr. Whittle’s opinion that plaintiff was
8

“totally and completely disabled” the ALJ should have contacted Dr. Whittle prior to
rendering his opinion. (See Doc. 9 at p. 6) Additionally, plaintiff contends that in light of
plaintiff’s testimony regarding his musculoskeletal problems and Dr. Whittle’s opinion
that those problems contributed to plaintiff’s inability to work, the ALJ erred in failing to
order a consultive examination. (Id.)
Controlling weight may only be given to a treating physician’s medical opinions
that are well-supported by medically acceptable clinical and laboratory diagnostic
techniques and are not inconsistent with other substantial evidence in the record. 20
C.F.R. § 404.1527(d)(2). The Eleventh Circuit recently addressed this issue as follows:
Absent “good cause,” an ALJ is to give the medical opinions of treating
physicians “substantial or considerable weight.” Lewis, 125 F.3d at 1440;
see also 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause
exists “when the: (1) treating physician's opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating
physician's opinion was conclusory or inconsistent with the doctor's own
medical records.” Phillips, 357 F.3d at 1241. With good cause, an ALJ may
disregard a treating physician's opinion, but he “must clearly articulate [the]
reasons” for doing so. Id. at 1240–41.
Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). Dr.
Whittle’s opinion regarding Lambeth being “totally disabled” (Tr. 196, 197) is not only
conclusory but inconsistent with Lambeth’s own testimony regarding his normal
activities of daily living and capabilities.
Dr. Whittle’s opinion also fails to measure up when evaluated against the other
regulatory criteria for weighing medical source opinions. The regulations provide: “The
better an explanation a source provides for an opinion, the more weight we will give that
opinion.” 20 C.F.R. § 404,1527(d)(3). As applied in this case, Dr. Whittle did not offer
any explanation or even cursory justification for the majority of his opinion (Tr. 196,
9

197). The ALJ credited only the opinion that, in view of the documented seizure on May
19, 2007, Lambeth “is to do no driving, climbing, swimming and so forth” (Tr. 175) and
“avoid high places” (Tr. 197).
The regulations also provide that “the more times you have been seen by a
treating source, the more weight we will give to the source’s medical opinion.” 20 C.F.R.
§ 404.1527(d)(2)(i). According to the evidence presented at his hearing before the ALJ,
Dr. Whittle “had not seen [Lambeth] in years[(i.e., since his one previous seizure in
1987)],” when he presented to the emergency room in 2007 following a “new onset
seizure” (Tr. 163). Following Lambeth’s discharge on May 21, 2007, Dr. Whittle saw
Lambeth on only two occasions, June 3, 2008 (Tr. 197) and “January of ‘09” (Tr. 47).
Although Dr. Whittle mentions in his letter dated July 31, 2008 (Tr. 197) that Lambeth
suffers from “severe joint pain, shoulder pain,” this statement is inconsistent with Dr.
Whittle’s assessment of Lambeth dated May 19, 2007 (Tr. 162) as “[a] muscular white
male in no acute distress . . . [who] moves all extremities well,” and also with Lambeth’s
own written statement and testimony that he cooked, cleaned, mowed the lawn, went
shopping, watched television, read the newspaper and magazines, visited with friends and
family, and worked on his truck (Tr. 59, 133-37). Moreover, Lambeth's reported daily
activities were inconsistent with his claim and with Dr. Whittle’s opinion that Lambeth’s
impairments rendered him completely unable to work. The regulations state: “Generally,
the more consistent an opinion is with the record as a whole, the more weight we will
give to that opinion.” 20 C.F.R. § 404.1527(d)(4). Dr. Whittle’s opinion is inconsistent
with his own treatment notes that do not reflect any diagnostic findings consistent with
his opinions. See Kennedy v. Astrue, 2010 WL 1643248, at *7 (S.D. Ala. Apr. 21, 2010)
10

(treating physician’s opinion not given controlling weight where opinion was not
supported by treatment notes).
The ALJ relied only upon Dr. Whittle’s opinion that, in view of the seizure
Lambeth experienced on May 19. 2007, Lambeth could not “work at unprotected
heights, around hazardous machinery, and working near bodies of water, or work
requiring commercial driving as defined in 20 CFR 404.1567(c) and 416.967(c).” (Tr.
12). After his evaluation of all the evidence of record, including Lambeth’s testimony
and written statements, the ALJ specifically concluded that:
The claimant alleges that he was unable to work because of his impairment
of seizure disorder that prevented him from performing gainful
employment. The medical evidence shows that the claimant does have a
medically determinable impairment, but the full record does not support his
allegations of total disability. The claimant has managed to work for years
at various jobs without difficulties of seizure episodes which he reported
that he had since a child. Claimant testified that he did not return to work
after the hospitalization in May 2007 due to seizure episode and he has not
sought any other employment. Claimant reported that he had one other
seizure back in 1987 and no more until May of 2007. Claimant denied any
further seizure activity since that time. He continues to take Dilantin 300
mg per day, which suggests that his seizures are being controlled with
medication.
The claimant noted in his activities of daily living report in Exhibit 5E that
he can take care of his own personal needs without assistance; watch
television; listen to the radio; do the laundry; prepare cooked meals; take
out the trash; shop for personal items and groceries without assistance;
mow the lawn, walk to visit with friends and family; and drive ; work on
his truck – all consistent with some work related activity. Claimant
testified that Dr. Whittle stopped him from driving, but since he has not had
a seizure since May of 2007 his driving privileges was restored earlier this
year. . . . Claimant denied having any other seizures before the one . . . in
1987 and he has not had another one since 2007 – all which are inconsistent
with his allegations of greater limiting functional abilities.
(Tr. 14). The ALJ discounted Dr. Whittle’s opinion that Lambeth was totally disabled
from full time employment because it was “inconsistent with his office treatment notes
11

during the relevant period” and “[t]he record is absent of any other functional limitations
which would impact claimant’s ability to perform work-related tasks.” (Tr. 14-15). The
ALJ further concluded that:
[T]he claimant has overstated the extent of his medical condition and
functional restrictions. While the claimant’s condition may reasonably be
expected to result in mild to moderate deficits, the evidence as a whole does
not support a finding that the claimant experiences the disabling limitations
as he so alleged. The medical records do not support that claimant is totally
disabled. The claimant has denied having any significant medication side
effects that would interfere with his ability to perform some work activities.
There is no persuasive evidence of record that would preclude the claimant
from performing work activities within the restrictions recited above in the
body of the decision.
(Tr. 15).
Contrary to Plaintiff's argument (doc. 9 at 6-7), the ALJ was not required to
recontact Dr. Whittle for additional information. "[I]t is not the rejection of the treating
physician's opinion that triggers the duty to recontact the physician; rather it is the
inadequacy of the 'evidence' the ALJ 'receive[s] from [the claimant's] treating physician'
that triggers the duty." White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002) (citing 20
C.F.R. § 416.912(e)). Here, the record contained sufficient evidence from which the ALJ
could evaluate Dr. Whittle's opinion. Consequently, the cases relied upon by Lambeth
are inapposite. For example, in Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997),
the Eleventh Circuit concluded that:
Here, the record as a whole is neither incomplete nor inadequate. Instead,
the record was sufficient for the ALJ to evaluate Graham's impairments and
functional ability, and does not show the kind of gaps in the evidence
necessary to demonstrate prejudice. . . .In addition, the ALJ's questioning
brought out all aspects of how Graham's symptoms affected her.

12

129 F.3d at 1423. Similarly, in McConnell v. Schweiker, 655 F.2d 604, 606 (11th Cir.
1981), the Eleventh Circuit held not only that “the record demonstrates that the ALJ fully
and fairly developed the facts relevant to McConnell's claim, and that McConnell was not
prejudiced by lack of counsel” but that “[w]e do not think that this ALJ was remiss in
questioning McConnell in the way he did.” In Nelm v. Bowen, 803 F.2d 1164, 1165
(11th Cir. 1986), remand was required only because the ALJ determined that the claimant
retained the residual functional capacity to perform her past relevant work despite “the
absence of evidence of the physical requirements and demands of appellant's [past
relevant] work.” See also Welch v. Bowen, 854 F.2d 436, 439 (11th Cir. 1988)(“[T]he
ALJ's exclusive reliance upon the grids to make his determination on job availability was
inappropriate under the circumstances.”); Cowart v. Schweiker, 662 F.2d 731, 736 (11th
Cir, 1981)(“[T]he ALJ did not elicit testimony from a vocational expert, nor any other
testimony, regarding specific jobs that Mrs. Cowart is able to perform [and thereby]
failed to meet his duty of developing a full and fair record.”).
The present case is also distinguishable from Brown v. Shalala, 44 F.3d 931 (11th
Cir. 1995), in which the Eleventh Circuit held:
We do not mean to suggest that a remand is warranted any time a claimant
alleges that the ALJ has neglected to complete the record. The likelihood of
unfair prejudice to a claimant may arise, however, where as here, the
evidentiary gap involves recent medical treatment, which the claimant
contends supports her allegations of disability, or the receipt of vocational
services
44 F.3d at 936, n. 9. Unlike Brown, Lambeth was represented by counsel who advised
the ALJ that it was unnecessary to obtain Dr. Whittle’s notes related to a January 2009
visit. Thus, the ALJ was entitled to assume that such notes did not support Lambeth’s
13

allegations of disability to any greater degree than the notes of Dr. Whittle that were
already in evidence. Also unlike Brown, the ALJ in the present case obtained the
testimony of a vocational expert who was subject to cross-examination by Lambeth.
In Gallina v. Comm’r of Soc. Sec., 202 Fed. Appx. 387, 388 (11th Cir. 2006), the
Eleventh Circuit again emphasized that, “[w]hile the ALJ has a basic obligation to
develop a full and fair record, medical sources generally need only be re-contacted when
the evidence received from that source is inadequate to determine whether the claimant is
disabled.” Unlike the claimant in Gallina, Lambeth’s written statement and testimony
concerning his activities and capabilities were inconsistent with Dr. Whittle’s conclusory
opinion that Lambeth was totally disabled and unable to work in any capacity.
Lambeth’s mere mention that he had “spurs in his shoulder” and “six crushed vertebraes”
(Tr. 60), without any contention that they interfered with his ability to complete the 100
hours of community service he performed in 2007 or his present ability to mow the lawn
and do yard work, as well as to cook, take out the trash and wash and dry clothes, is an
insufficient basis to contend that the record is not complete. Under these circumstances,
there were no gaps in Lambeth’s record, despite there being no other physician’s opinion
addressing the alleged shoulder spurs or crushed vertebrae.
In Johnson v. Barnhart, 138 Fed. Appx. 266, 268 (11th Cir. 2005), an MRI
confirmed that the claimant suffered from degenerative disc disease and protrusion for
which she was initially prescribed physical therapy and pain medication and subsequently
required, inter alia, weekly steroid injections followed by lumbar fusion surgery.

In

view of the ALJ’s rejection of a treating physician’s opinion in favor of a non-examining
consulting physician’s opinion regarding claimant’s residual functioning capacity, the
14

Eleventh Circuit declared that a disability determination could not be made on that
record. The record in this case, however, contained sufficient evidence from which the
ALJ could evaluate not only Dr. Whittle's opinion but the level of work Lambeth would
be able to perform.
In addition, there was no error committed when the ALJ did not order “a
consultative examination to determine the nature and extent of [Plaintiff's alleged] back
and shoulder problems." (Doc. 9 at 6). Although the ALJ is "bound to make every
reasonable effort to obtain from the claimant’s treating physician(s) all the medical
evidence necessary to make a determination," the burden is on Plaintiff to prove that he is
disabled. See Sellers v. Barnhart, 246 F. Supp. 2d 1201, 1210 (M.D. Ala. 2002)(“While
it is reversible error for an ALJ not to order a consultative examination when the
evaluation is necessary for him to make an informed decision, . . . the ALJ is not required
to order a consultative examination unless the record, medical and non-medical,
establishes that such an examination is necessary to enable the ALJ to render a
decision.”)(citing Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir.1984); Holladay v.
Bowen, 848 F.2d 1206, 1210 (11th Cir.1988)). An ALJ is not required to order a
consultative examination for

every impairment which a claimant may allege. See

McCray v. Massanari, 175 F. Supp. 2d 1329, 1340 (M.D. Ala. 2001) (citing Matthews v.
Bowen, 879 F.2d 422, 424 (8th Cir. 1989). A consultative examination is only required
when "necessary" to assist the ALJ in making an informed decision. See McCray at 1340
(citing Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977); see also Sellers, 246
F.Supp. 2d at 1210. Here, the record contained no objective evidence of Lambeth’ss
alleged musculoskeletal impairments. The only "medical" evidence of Lambeth’s back
15

and shoulder conditions was Dr. Whittle's passing reference in a July 2008 letter to
Lambeth’s “severe joint pain, shoulder pain” (Tr. 197). None of Dr. Whittle's treatment
notes, however, revealed that Lambeth was treated for these conditions. Moreover, the
nonmedical record showed that Lambeth’s daily activities were not significantly
impacted by his alleged musculoskeletal conditions. Lambeth testified that the only
medication prescribed was for his seizures. There is no evidence in the record that
Lambeth ever took any pain medication except Dr. Whittle’s notation by dictation on
May 24, 2007, that Lambeth “had one occasion, he got some Dilaudid for his headaches
but this is all” (Tr. 175). Thus, the medical and nonmedical record was sufficient for the
ALJ to make a decision without ordering a consultative examination to further inquire
into Plaintiff's alleged impairments. See 20 C.F.R. §§ 404.1519a and 416.919a (providing
that a consultative examination may be ordered when the evidence as a whole, both
medical and nonmedical, is not sufficient to support a decision on the claim).
2.

The ALJ’s assessment of Lambeth’s residual functional capacity
is supported by substantial evidence.

Plaintiff maintains that the ALJ’s residual functional capacity findings lack the
support of substantial evidence. As stated above, the ALJ found that Lambeth had the
residual functional capacity to perform a reduced range of medium work. The record
before the court reflects that the ALJ expressly considered, in making the finding, "all
symptoms and the extent to which these symptoms [could] reasonably be accepted as
consistent with the objective medical evidence and other evidence, based on the
requirements of 20 C.F.R. § 404.929 and [Social Security Rulings] SSRs 96-4p and 967p" (Tr. 12). The ALJ found that Lambeth’s "medically determinable impairments could
16

reasonably be expected to cause the alleged symptoms; however [his] statements
concerning the intensity, persistence and limiting effects of these symptoms [were] not
credible to the extent they [were] inconsistent with the [ALJ's] residual functional
capacity assessment (Tr. 15).
A clearly articulated credibility finding with substantial supporting evidence in the
record will not be disturbed by a reviewing court. Foote v. Chater, 67 F.3d 1553, 1562
(11th Cir. 1995); MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986). As
applied to this case, the ALJ's credibility determination was clearly articulated and
supported by substantial evidence. The ALJ relied upon Lambeth’s testimony that he had
been taking seizure medication following a seizure in 2007, had not had another seizure
since that time, and had no medication side effects (Tr. 54-56). "A medical condition that
can reasonably be remedied either by surgery, treatment, or medication is not disabling."
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (quoting Lovelace v. Bowen,
813 F.2d 55, 59 (5th Cir. 1987) (footnote omitted)).
When evaluating a claimant's credibility, an ALJ also may consider any
inconsistencies between a claimant's alleged limitations and his daily activities. See
Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987). In written statements and
testimony, Lambeth acknowledged that he cooked, cleaned, mowed the lawn, went
shopping, watched television, read the newspaper and magazines, visited with friends and
family, and worked on his truck (Tr. 59, 133-37). Lambeth’s varied daily activities are
inconsistent with his claim that his impairments rendered him completely unable to work.
In determining Lambeth’s residual functional capacity, the ALJ "also considered
opinion evidence in accordance with the requirements of 20 C.F.R. § 416.927 and SSRs
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96-2p, 96-5p, 96-6p, and 06-3p" (Tr. 12). A treating physician's opinion may be
discounted when it is not accompanied by objective medical evidence or is conclusory.
See Edwards v. Sullivan, 937 F.2d 587, 583 (11th Cir. 1991). Here, the ALJ properly
rejected the opinion of Dr. Whittle that Lambeth was totally disabled because this
conclusory opinion was inconsistent not only with Dr. Whittle’s "very sparse office
notes" (Tr. 15) but with Lambeth’s own written statements and testimony. In addition,
the issue of "disability" is reserved to the Commissioner (Tr. 15). See 20 C.F.R.
§§ 404.1527(e)(2), 416.927(e)(2) (the Commissioner "will not give any special
significance" to a medical source opinion on issues reserved to the Commissioner).
Contrary to Lambeth’s contention (doc. 9 at 9) that the residual functional capacity
applied by the ALJ lacked any support from the medical evidence of record, the ALJ
considered and accepted Dr. Whittle's opinion that Lambeth should avoid high places,
swimming and driving due to his seizure disorder (Tr. 14, 197). The ALJ pointed out,
however, that Lambeth was no longer precluded from driving as initially instructed by
Dr. Whittle (Tr. 15). As the ALJ emphasized, the record was absent any other
functional limitations that could impact Plaintiff's ability to perform work-related tasks
(Tr. 15). It is the ALJ's duty to assess "RFC from using all relevant medical and other
evidence in the case." Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004) (citing
20 C.F.R. § 404.1520(e)).
In sum, the ALJ's assessment of Lambeth’s residual functional capacity is
supported by substantial evidence and is, therefore, due to be affirmed. See Phillips, 357
F.3d at 1241 (concluding that the ALJ's finding that the claimant retained the RFC for
sedentary work was supported by substantial evidence).
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V.

Conclusion.

For the reasons stated above, it is ORDERED that the decision of the
Commissioner of Social Security denying plaintiff’s benefits be and is hereby
AFFIRMED.
Done this 12th day of July, 2011.

/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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