Rivers v. Astrue

Filing 20

Order entered that the decision of the Commissioner of Social Security, denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income, be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/28/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EULA W. RIVERS,

*
*
Plaintiff,
*
*
vs.
*
*
MICHAEL J. ASTRUE,
*
Commissioner of Social Security, *
*
Defendant.
*

CIVIL ACTION 11-00365-B

ORDER
Plaintiff Eula W. Rivers (“Plaintiff”) brings this action
seeking judicial review of a final decision of the Commissioner
of Social Security denying her claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §
401, et. seq.,

and

1381, et. seq.

On

March

26,

2012,

the

parties consented to have the undersigned conduct any and all
proceedings

in

this

case.

(Doc.

17).

Thus,

the

action

was

referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c).
(Doc.

18).

Oral

argument

was

waived.

Upon

careful

consideration of the administrative record and the arguments and
briefs of the parties, it is hereby ORDERED that the decision of
the Commissioner be AFFIRMED.

I.

Procedural History
Plaintiff

protectively

filed

applications

for

disability

insurance benefits and supplemental security income on October
24,

2007.

(Tr.

133).

Plaintiff

alleges

that

she

has

been

disabled since May 9, 2007, due to degenerative disc disease of
the cervical spine and lumbar spine.

(Id. at 64). Plaintiff’s

applications were denied at the initial stage.

(Id. at 60-66).

She filed a timely Request for Hearing before an Administrative
Law

Judge

(“ALJ”).

Administrative
hearing,

which

Law
was

(Id.
Judge

at

67-68).

On

Hagler

held

Renee

attended

by

vocational expert, Jody Skinner.
2009,

the

ALJ

issued

an

Plaintiff is not disabled.

Plaintiff,

August
an
her

(Id. at 34-59).

unfavorable

decision

(Id. at 23-33).

3,

2009,

administrative
attorney,

and

On August 19,
finding

that

Plaintiff’s request

for review was denied by the Appeals Council (“AC”) on May 13,
2011,

and

upon

review

of

additional

evidence,

the

denied Plaintiff’s request for review on June 9, 2011.

AC

again

(Id. at

1-22).
The parties agree that this case is now ripe for judicial
review and is properly before this Court pursuant to 42 U.S.C. §
405(g) and 1383(c)(3).

2

II.

Issues on Appeal
A.

Whether substantial evidence supports the ALJ’s
determination that Plaintiff retained the residual
functioning capacity to perform light work.

B.

Whether the ALJ erred in failing to develop the record
by not ordering an orthopedic consultative
examination.

C.

Whether the ALJ erred by improperly rejecting
Plaintiff’s subjective complaints of pain.

III. Factual Background
Plaintiff was born on June 17, 1960, and was forty-nine
(49) years of age at the time of the administrative hearing.
(Tr. 39, 60-61, 112).

Plaintiff has an eighth grade education

and past relevant work (“PRW”) as a dump truck driver.

(Id. at

31, 39, 153, 157).
At

the

hearing,

Plaintiff

testified

that

she

currently

works five (5) days a week, between two (2) and four (4) hours a
day

cleaning

testified
worked

motel

rooms.

that

in

prior

May

2007

to

(Id.

her

driving

at

work
a

40-41).
cleaning

dump

truck.

Plaintiff
motel
(Id.

further

rooms,
at

she

41-42).

According to Plaintiff, she is unable to work full-time due to
pain

in

her

neck

and

back.

(Id.

at

45).

Plaintiff

also

testified that she has pain generating down into her right arm
and her legs, that she is unable to grip with her right hand,

3

and that she has to wear a back brace when she stands or walks.
(Id.)
Plaintiff further testified that she is able to grip a
coffee cup or a door handle, that she can pick up small items
such as an ink pen with each hand, that she can lift a gallon of
milk and grocery shop, that she can prepare a simple meal for
herself, that she can bathe, dress, and comb her hair without
assistance, that she can make a bed, and that she can drive.
(Id.

at

50-53).

According

to

Plaintiff,

she

cannot

stairs, bend over, stoop or squat, and her grandson
with household chores such as sweeping and vacuuming.
IV.

climb

assists

(Id.).

Analysis
A.

Standard Of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).1

Martin v. Sullivan, 894 F.2d

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

1

This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
4

Cir.

1986).

The

Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

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); Short v. Apfel, 1999 U.S.

Dist. LEXIS 10163

(S.D. Ala. 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits must prove his disability.
416.912.
substantial

20 C.F.R.

§§ 404.1512,

Disability is defined as the “inability to do any
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), 404.1505(a), 416.905(a).

The Social

Security regulations provide a five-step sequential evaluation

5

process for determining if a claimant has proven her disability.
20 C.F.R. §§ 404.1520, 416.920.2
In the case sub judice, the ALJ determined that Plaintiff
met

the

non-disability

requirements

benefits through December 31, 2011.

for

disability

insurance

(Tr. 28). The ALJ noted

that while Plaintiff has worked part-time as a housekeeper since
January 2009, which is after her alleged onset date, the work

2

The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to 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 the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an 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, 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)).

6

done did not rise to the level of substantial gainful activity.3
Thus,

the

ALJ

substantial
(Id.).

found

gainful

that

Plaintiff

activity

since

her

has

not

alleged

engaged
onset

in

date.

The ALJ concluded that while Plaintiff has the severe

impairments

of

cervical

disc

disease,

lower

back

pain,

and

chronic kidney stones, they do not meet or medically equal the
criteria for any of the impairments listed in 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Regulations No. 4.
The

ALJ

concluded

that

(Id. at 28-29).

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform light work,
that Plaintiff can lift and carry 20 pounds occasionally and 10
pounds frequently, that Plaintiff can sit, stand, and walk for 6
out of 8 hours, and that Plaintiff needs to alternate positions
every 2 hours.

(Id. at 29).

The ALJ next determined that while Plaintiff’s medically
determinable impairments could reasonably be expected to produce
the alleged symptoms, her statements concerning the intensity,
persistence and limiting effects of the alleged symptoms were
not credible.

(Id. at 30).

The ALJ concluded that Plaintiff’s

RFC precludes her from performing any of her past work.
31).

(Id. at

Relying on the testimony of the VE, the ALJ found that,
3

The ALJ noted that Plaintiff earns “just under the
substantial gainful activity levels for each month.”
(Id. at
28).

7

considering Plaintiff’s RFC and vocational factors, such as age,
education
other

and

jobs

work

experience,

existing

in

Plaintiff

significant

is

numbers

able
in

to

the

perform
national

economy such as cashier, information clerk, and assembler. (Id.
at 32).

The ALJ thus concluded that Plaintiff is not disabled.

(Id. at 33).
1. Medical Evidence
The relevant medical evidence reflects that Plaintiff was
treated by Drs. Tim Revels and Roger M. Setzler (with Alabama
Orthopedic Clinic) from July 2005 through July 2007 for back and
neck pain. (Id. at 226-51). In July 2005, Plaintiff reported
long term back pain, which had gotten worse over the last four
or five months.

She also reported low back pain, tightness in

muscles, and pain running down the right leg.

On exam, Dr.

Setzler found Plaintiff was intact neurologically in both upper
and lower extremities with normal reflexes, normal sensation,
and normal strength, and that Plaintiff exhibited low back and
cervical tenderness.
X-rays
“marked”

of

(Id. at 232).

Plaintiff’s

degenerative

cervical

changes

and

lumbar

throughout,

spine

specifically

showed
some

fairly marked narrowing at L5-S1 of the facets and narrowing of
C5-6.

Dr.

Setzler

diagnosed

Plaintiff

with

lumbar

pain,

cervical pain, degenerative joint disease, and degenerative disc
disease of the cervical and lumbar spine.
8

(Id.).

Toradol 30mg

was

recommended,

grams a day.

and

Plaintiff

was

prescribed

Celebrex,

200

(Id.).

During a July 28, 2005 visit, Plaintiff complained that she
had been “miserable”, and that the pain was now radiating down
her right arm into her hand and was “unrelenting.”
ordered

an

MRI

of

Plaintiff’s

cervical

spine,

provided Toradol 60mg. (Id. at 231). The MRI

Dr. Setzler
and

she

was

of Plaintiff’s

cervical spine revealed “a posterior disk bulge and some focal
ligament

flavum

thickening

creating

some

mild

anterior/

posterior and bilateral foraminal encroachment at C5-6, but no
other real changes

[were] noted at that area; certainly, no

herniated disks or real spinal cord involvement.”

(Id. at 230).

Plaintiff’s anti-inflammatory medications were continued.

She

was administered Toradol 60 mg, which had a positive effect
during her prior visit, and she was advised to stay active.
(Id.).
During

her

next

visit

on

August

15,

2005,

Dr.

Setzler

scheduled Plaintiff for a cervical steroid epidural bloc at C56. (Id. at 229).

During Plaintiff’s September 1, 2005 visit,

she reported some improvement with neck pain and numbness, but
the tingling in her arm remained.

Dr. Setzler recommended a

shot of Depo-Medrol, and noted that the epidural block may need
to

be

repeated

September

19,

in
2005

a

couple

notes

of

weeks.

reflect
9

that

(Id.

at

Plaintiff

228).
“has

The
been

actually doing pretty well, but then started having a lot more
trouble after the storm.”

(Id. at 227).

The treatment notes

also reflect that the epidural block had not helped as much as
hoped and that Plaintiff suffered a fall, wherein she injured
her ribs, but did not have any fractures.

Another cervical

steroid epidural block at C5-6 was recommended. (Id.).
In the notes dated November 16, 2005, Dr. Revels observed
that Plaintiff had tried epidurals, careful modified lifestyle,
physical therapy, and various medications with no improvement of
her symptoms, and as a result, he discussed with her the options
of pain management versus surgery, which would involve a C5-6
anterior cervical discectomy and fusion (ACDF).

(Id. at 241).

The November 30, 2005 treatment notes reflect that Plaintiff
elected to proceed with the ACDF surgical procedure, and that
Dr. Revels provided her with a work slip excusing her from her
job for two months.
On

January

assisting,

(Id. at 240).

10,

performed

2006,
a

C5-6

Dr.
ACDF

Revels,

with

surgical

Dr.

Setzler

procedure.

The

procedure included C5-6 anterior decompression and fusion with
interbody

prosthetic

bone

graft,

C5-6

anterior

instrumentation, and bone marrow aspiration, left hip.
242-44).

During

a

follow-up

visit

on

February

2,

spinal
(Id. at

2006,

Dr.

Revels noted that the x-rays showed good placement of the bone
graft and hardware with no complications.
10

Dr. Revels observed

that Plaintiff has “greatly” improved right arm radiculopathy
and

presented

stiffness.

with

only

tightness,

March

passenger

pain,

spasm,

and

Dr. Revels recommended outpatient physical therapy

and a RS medical stimulator.
On

neck

in

8,
a

2006,
motor

(Id. at 239).

Plaintiff
vehicle

aggravation of her neck pain.

reported

accident,

that

which

she

was

resulted

a
in

Dr. Revels’ notes reflect that

“was making an improvement until the ... MVA.”

He recommended

that Plaintiff continue with outpatient physical therapy, and he
provided her a work slip indicating that she could return to her
work as a dump truck driver the next day.

(Id. at 238).

Plaintiff was next seen by Dr. Revels on March 17, 2006,
with complaints of post-operative bilateral severe neck pain,
left more than right, resulting from a motor vehicle accident,
and recurrent numbness and pain in her right arm.

X-rays of her

back were taken and they showed no problems with the bone graft
or hardware from her ACDF procedure.

Dr. Revels recommended

that Plaintiff undergo an MRI of the cervical spine, and she was
given a shot of Toradol.

(Id. at 237).

The MRI of her cervical spine was taken on March 25, 2006,
and it revealed that the alignment and vertebral body height
were well preserved, that mild disc desiccation is present to
the visualized cervical spine, that the signal within the spinal
cord of the cervical spine appeared within normal limits, and
11

that there was continued mucosal thickening within the maxillary
sinuses and ethmoid air cells, similar to the previous MRI exam.
(Id. at 250-51).
In a visit on April 5, 2006, Plaintiff reported neck pain
with some pain down the right lateral forearm into the base of
the

wrist

finger

and

thumb,

numbness.

and

On

left

forearm

physical

and

exam,

Dr.

fourth
Revels

and

fifth

observed

“findings of developing de Quervain’s tenosynovitis4 of the right
wrist.”

He recommended nerve conduction studies in the form of

an EMG and NVC of Plaintiff’s left arm and hand, and set her up
for a right wrist thumb spica splint for her “de Quervain’s
tenosynovitis” of the wrist.

(Id. at 236).

Dr. Revels referred Plaintiff to Dr. Charles Hall for the
EMG and NVC.

The tests were performed on April 16, 2006, and

Dr. Hall reported that the results were normal, with no definite
evidence of a focal or generalized peripheral neuropathy in the
left upper extremity.

(Id. at 245-49).

Treatment notes dated April 26, 2006 reflect that Plaintiff
attempted

to

return

to

work

for

4

a

few

days.

She

reported

De Quervain’s tenosynovitis is inflammation of tendons on
the side of the wrist at the base of the thumb. These tendons
include the extensor pollicis brevis and the abductor pollicis
longus tendons.
De Quervain’s tenosynovitis can be brought on
by simple strain injury to the extensor pollicus longus tendon.
See http://www.medicinenet.com/de_quervains_tenosynovitis/articl
e.htm (last visited September 27, 2012).

12

aggravation of her neck and required an injection.

She was

provided a work slip excusing her from work for another month.
Dr. Revels noted that he would try to get her back to work.
(Id. at 235).
During

her

May

24,

2006

visit,

report neck pain and stiffness.
that

she

wanted

prescribed

to

Neurontin

return
to

continued

to

She also advised Dr. Revels

to

help

Plaintiff

work
her

in

a

rest.

week.
(Id.

Dr.
at

Revels

234).

In

treatment notes dated July 5, 2006, Dr. Revels observed that
Plaintiff had not gotten any better since surgery, that because
she was doing a lot of shoveling upon returning to work, her
symptoms had gotten worst, and she was “living on Lortab at this
point to try to get by.”
pain management.

He referred Plaintiff to Dr. Ruan for

(Id. at 233).

Plaintiff was treated by Xiulu Ruan, M.D. (hereinafter “Dr.
Ruan”) for pain management from July 6, 2006 until through at
least

June

4,

2010.

(Id.

at

263-84,

298-302,

324-363).

Dr.

Ruan’s July 6, 2006 notes reflect that on exam, Plaintiff’s neck
was supple and her range of motion in the cervical spine was
moderately
bending.

decreased

with

(Id. at 283-284).

flexion,

extension,

and

lateral

Tenderness with palpation over the

cervical spine midline and facet joint was observed, and she had
a positive Spurling test.

Cervical paraspinal muscle spasm was

also noted. Tenderness with palpation over thoracic and lumbar
13

facet joint and mild tenderness with palpation over SI joint
were

also

lumbar
rule

observed.

disc

out

disease,

LE

cervical

Dr.

Ruan’s

lumbar

neuropathy,

diagnosis

spondylosis,

degenerative

dystonia/cervical

was

degenerative

lumbar

radiculitis,

cervical

myofascial

disc

pain

disease,
syndrome,

cervicogenic headache, cervical spondylosis with facet syndrome,
cervical radiculitis, rule out entrapment neuropathy, and failed
cervical spine surgery syndrome.

(Id. at 284).

Dr. Ruan’s treatment plan for Plaintiff included use of a
multidisciplinary

approach,

neuropathic

Lortab,

(Id.).

pain,

specifically

muscle

relaxers,

Lyrica
and

75
TENS

mg

for

therapy.

Plaintiff was also scheduled for LE NCS/EMG to evaluate

for LE neuropathy versus lumbosacral radiculopathy and for a
cervical myobloc injection for her cervical dystonia.
was also directed to continue her TENS therapy.
The

record

reflects

that

Plaintiff

Plaintiff

(Id.)

received

cervical

myobloc injections5 on July 14, 2006, December 1, 2006, February
29, 2008, June 17, 2008, October 17, 2008, May 11, 2009, August
13, 2009, and March 18, 2010.

(Id. at 270, 276, 325, 328, 330,

341, 346, 356-57).
5

MYOBLOC® (rimabotulinumtoxinB) Injection is indicated for
the treatment of adults with cervical dystonia to reduce the
severity of abnormal head position and neck pain associated with
cervical
dystonia.
See
http://www.myobloc.com/myobloc/hcp/.
(last visited September 27, 2012).

14

Plaintiff reported, during a visit on August 3, 2006, that
Lyrica made her feel “drunk.”

(Id. at 273).

During a September

28, 2006 visit, Plaintiff reported that her pain comes and goes
but that it is worse at work, and that her current medications
were not helping much.

On exam, Plaintiff exhibited tenderness

in the cervical spine and right trapezius muscle.
provided her a sample of Provigil to try for a week.
272).

Dr.

Ruan’s

treatment

notes

dated

November

Dr. Ruan
(Id. at
10,

2006

reflect that Plaintiff reported pain while turning her neck in
her job as a dump truck driver.
neck stiffly.

On exam, Plaintiff held her

She had tenderness on the right side of her neck

down into her hand, and muscle spasm was noted.

(Id. at 271).

Plaintiff was seen by Dr. Ruan on January 9, 2007, and she
reported that her right side neck pain increases more when she
is working as a driver, that she had been experiencing low back
pain for three days, and that she was having problems sleeping.
She also reported that she was not receiving benefit from the
myobloc injections, and that Indocin and Cymbalta made her feel
sick.

She

Allegra.
The

was

continued

on

Lortab,

Ultram,

Provigal,

and

(Id. at 269).
record

Plaintiff’s

also

employer

contains
at

the

a

letter

Mobile

from

County

Dr.

Ruan

Commission.

to
The

letter, which is dated May 12, 2007, reads, in pertinent part as
follows:
15

Ms. Rivers has been under my care for her
chronic neck and back pain since July 2006.
She is on Ultram ER and Lortab for her
severe pain symptoms. She was previously to
work [sic] by her orthopedic spine surgeon
Dr. Revels.
The above medications keep her
pain tolerable and keep her functional. She
denies any sedation or side effects with
taking these medications. I believe that she
should be able to drive as agreed by Dr.
Revels while on these medications as they
actually keep her functional.
(Id. at 267).
Dr. Ruan’s treatment notes dated June 7, 2007 reflect that
Plaintiff went back to work for three weeks, but upon getting a
letter from Dr. Blessey, who is also treating Plaintiff, her
employer

would

not

allow

her

to

return

to

work

because

Dr.

Blessey opined that she could no longer drive, and he wants her
to “get on disability.”

(Id. at 266).

In treatment notes dated July 12, 2007, Dr. Revels opined
that because Plaintiff uses pain medication and muscle relaxants
after work, in the evening, and when working, she only uses
lidocaine patches, she should be able to return to work.

(Id.

at 226).
Dr. Ruan’s treatment notes dated August 2, 2007 reflect
that Plaintiff relayed to Dr. Ruan that during her visit with
Dr. Revels on July 12, 2007, he opined that she was ready to
return to work.

Plaintiff also advised him that she does not

“take the medicines at work, only when [she] would get home.”

16

(Id. at 265).

Plaintiff reported some pain and numbness in her

arm if she “sleeps [the] wrong way,” and showed tenderness of
the cervical spine and right upper trapezius muscle on exam.
(Id.).
Plaintiff reported in a September 27, 2007 visit to Dr.
Ruan

that

her

employer

would

not

let

her

return.

She

also

reported numbness in her legs, that she had gone to the ER
because of the numbness, and that the TENS therapy was helping
with the numbness.

(Id. at 264).

An MRI of her cervical spine on January 2, 2008 did not
reveal

any

significant

spinal

canal

or

neural

foraminal

stenosis. (Id. at 301). Dr. Ruan’s treatment notes dated April
16, 2008 reflect that Plaintiff reported she was having a hard
time holding her head up straight after a fall two weeks prior.
Dr. Ruan also noted that Plaintiff “wants desperately to go back
to work.”

(Id. at 326).

On exam, Plaintiff had a good range of

motion when moving her head from side to side but had tenderness
in the bilateral trapezius muscles.
During

Plaintiff’s

Plaintiff reported that

June

11,

(Id.).
2008

visit

with

Dr.

Ruan,

she had been doing well until three

weeks prior when she started to have right side pain again. She
indicated that she had not been resting well because she awakens
in pain although Dr. Ruan had prescribed Ambien for her. (Id. at
327).
17

Dr. Ruan’s treatment notes dated December 17, 2008 reflect
that Plaintiff reported a headache lasting three weeks.

On

exam, the right trapezius muscle was extremely tender to touch.
Dr. Ruan started Plaintiff on a prescription of Prednisone, and
referred her for an MRI of her brain due to her headache.
at 331).

(Id.

The December 31, 2008 MRI findings showed no major

vascular territory infarct was present within the brain and no
mass

effect

or

midline

shift

was

seen

to

the

brain.

The

physician reviewing the MRI observed that Plaintiff’s current
MRI was essentially normal.

(Id. at 332).

That same day, an MRI of Plaintiff’s cervical spine was
done.

The

results

revealed

present

from

anterior

cervical

“[m]agnetic
fixation

susceptibility

plate

at

the

is

C5-C6

level. Straightening is present to the normal lordotic curvature
of the cervical spine.

Mild disc desiccation is seen to the

cervical spine with disc heights maintained. Signal within the
spinal cord of the cervical spine is within normal limits.”
(Id. at 333).
An MRI of Plaintiff’s thoracic spine was taken on July 16,
2009. The results revealed posterior focal disc herniation at
T8-9 with anterior cord contact but no stenosis of the central
canal, foramina, or cord compression.
day,

Plaintiff

imaging

results

had

another

showed

that

MRI
at
18

of

(Id. at 342). That same
her

C3-4,

cervical

disc

spine.

desiccation

The
with

posterior disc bulge and facet hypertrophy were noted.
stenosis of 9.4 mm was observed.

Mild AP

It was also noted that the

stenosis was slightly more prominent than on prior exam. No
other significant changes were seen.

(Id. at 343).

A physical RFC was completed by Agency medical consultant
Sheila Brody on February 1, 2008. (Id. at 316-23). Ms. Brody
diagnosed

Plaintiff

with

hypertension, and vision loss.
that

Plaintiff

could

history

of

cervical

(Id. at 316).

occasionally

lift

50

fusion,

Ms. Brody opined
pounds,

frequently

lift 25 pounds, stand and/or walk about 6 hours in an 8-hour
workday, sit about 6 hours in an 8-hour workday, and push and/or
pull

for

an

unlimited

amount

of

time.

(Id.

at

317).

Additionally, she opined that Plaintiff has no limitations in
postural,

manipulative,

visual,

or

communicative

ranges;

however, Ms. Brody opined that Plaintiff should not drive while
taking pain medication that causes drowsiness.
2.

Issues
a.

In

her

(Id. at 320).

Whether substantial evidence supports the
ALJ’s determination that Plaintiff retained
the residual functioning capacity to perform
light work.

brief,

Plaintiff

contends

that

the

ALJ’s

RFC

determination, which indicated that Plaintiff is able to perform
light

work,

Specifically,

is

not

Plaintiff

supported

by

asserts

that

19

substantial

evidence.

while

ALJ

the

gave

determinative weight to the opinions of Dr. Ruan and Dr. Revels,
neither doctor completed a physical capacities assessment, nor
did

they

give

an

opinion

regarding

Plaintiff’s

physical

limitations. According to Plaintiff, there is “clear ambiguity
and insufficiency” regarding her physical limitations, and the
only physical capacities assessment in the record comes not from
a treating or examining physician but from Shelia Brody, a nonexamining

Agency

employee,

who

opined

that

Plaintiff

can

perform medium work. Plaintiff indicates that because the ALJ
found Plaintiff capable of performing no more than light work,
which

is

inconsistent

with

the

Agency’s

physical

capacities

assessment, and because there is no assessment by a treating
physician,

the

ALJ’s

determination

is

not

supported

by

substantial evidence. Plaintiff cites Coleman v. Barnhart, 264
F. Supp. 2d 1007 (S.D. Ala. 2003) in support of her argument.
(Doc. 13 at 5-6).
In

opposition,

the

Commissioner

counters

that

Plaintiff

bears the burden of proving disability and of providing evidence
to be used in RFC assessments, and that RFC determinations are
the province of the ALJ and are based on all relevant evidence
and not just medical evidence. The Commissioner further contends
that

the

Coleman

decision

cannot

be

reconciled

with

the

applicable regulations, and that there is no requirement that
the

ALJ’s

assessment

be

based
20

on

the

RFC

assessment

of

a

treating or examining source in every case. According to the
Commissioner, the ALJ relied on evidence from Plaintiff’s own
physicians

that

she

is

able

to

work

and

such

evidence

demonstrates that the record was adequate for a determination of
Plaintiff’s abilities.

(Doc. 14).

It is well established that a hearing before an ALJ in
social security cases is inquisitorial and not adversarial. A
claimant

bears

the

burden

of

proving

disability

and

for

producing evidence in support of his claim while the ALJ has “a
basic

duty

to

develop

a

full

and

fair

record.”

Ellison

v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam); see
also Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253,
1269 (11th Cir. 2007). This duty to develop the record exists
even

when

the

claimant

is

represented

by

counsel.

Brown

v.

Shalala, 44 F.3d 931, 934 (11th Cir. 1995). Indeed, applicable
Social Security regulations provide that the Commissioner will
pay the reasonable cost of providing existing medical records
the Commissioner needs or requests. Hargove v. Astrue, 2012 U.S.
Dist. LEXIS 69821, *31 (N.D. Fla. Mar. 15, 2012). The ALJ’s duty
to

develop

the

record

is

triggered

when

there

is

ambiguous

evidence or when the record is inadequate to allow for proper
evaluation of the evidence. Strawder v. Astrue, 2011 U.S. Dist.
LEXIS 122843, *20 (N.D. Fla. Aug. 8, 2011).

21

The responsibility for determining a plaintiff’s RFC6 lies
with the ALJ and is based on all of the evidence of record. See
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004) (ALJ
has duty to assess the residual functional capacity on the basis
of all the relevant credible evidence of record); 20 C.F.R. §§
404.1546, 416.946

(responsibility for determining a claimant’s

residual functional capacity lies with the ALJ). See also Foxx
v. Astrue, 2009 U.S. Dist. LEXIS 80307, *17 (S.D. Ala. Sept. 3,
2009)(“The RFC assessment must be based on all of the relevant
evidence in the case such as: medical history, medical signs and
laboratory findings, the effects of treatment, reports of daily
activities,

lay

evidence,

recorded

source statements.”), citing
The

undersigned

observations,

and

medical

SSR 96-8p, 1996 SSR LEXIS 5.

finds

that

the

record

in

this

case

contained sufficient evidence to enable the ALJ to make a RFC
determination

notwithstanding

the

absence

of

a

physical

assessment by a medical doctor, and that the ALJ fulfilled his
duty

to

review

Plaintiff’s RFC.

all

of

the

record

evidence

in

determining

In finding that Plaintiff can perform light

6

“Residual functional capacity, or RFC, is a medical
assessment of what the claimant can do in a work setting despite
any mental, physical or environmental limitations caused by the
claimant’s impairments and related symptoms. 20 C.F.R. §
416.945(a).” Peeler v. Astrue, 400 Fed. Appx. 492, 494 n.2 (11th
Cir. 2010).

22

work,

the

ALJ

assigned

determinative

weight

to

the

opinion

evidence from Plaintiff’s treating physicians, Dr. Ruan and Dr.
Revels. (Tr. 31-32).

A review of the record reflects that while

neither completed a Physical Capacities Assessment, both opined
that Plaintiff could return to work. (Id. at 226, 267).

In a

letter to Plaintiff’s employer dated May 12, 2007, Dr. Ruan
advised that Plaintiff was on Ultram ER and Lortab for severe
pain symptoms, that the medication keeps her functional, and
that she denies any side effects from the medication.

Dr. Ruan

opined that Plaintiff could return to her truck driver position,
which is classified as medium work. (Id.)

Similarly, Dr. Revels

opined that as long as Plaintiff used lidocaine patches while
working, and saved her pain medication and muscle relaxers for
use after work, she could return to work. (Id.) Further, at the
administrative hearing, Plaintiff testified that she works parttime, five days a week, as a housekeeper at a motel, which is
also classified as medium work.

(Id. at 40-41).

Plaintiff also

testified that she is able to take care of her personal needs
and

perform

some

household

chores.

(Id.

at

52-53).

This

substantial evidence supports the ALJ’s RFC determination even
in

the

absence

Accordingly,

of

a

Plaintiff’s

physical

assessment

contention

developing her RFC is without merit.

23

that

by

the

a
ALJ

physician.
erred

in

b.

Whether the ALJ erred in failing to develop the
record by not ordering an orthopedic
consultative examination.

Plaintiff next argues that the ALJ failed to develop a full
and fair record by not ordering a consultative orthopedic exam.
The Commissioner responds that Social Security Regulations only
require

that

a

consultative

examination

be

ordered

when

the

medical and non-medical evidence is insufficient or inadequate
for the ALJ to make a determination on Plaintiff’s claims.
As indicated above, a claimant bears the burden of proving
disability and for producing evidence in support of his claim
while the ALJ has “a basic duty to develop a full and fair
record.”

Ellison, 355 F.3d at 1276; Ingram, 496 F.3d at 1269.

In fulfilling the duty to conduct a full and fair inquiry, the
ALJ is not required to order a consultative examination unless
the record establishes that such is necessary to enable the ALJ
to

render

a

decision.

See

Ingram,

496

F.3d

at

1269

(“The

administrative law judge has a duty to develop the record where
appropriate

but

is

not

required

to

order

a

consultative

examination as long as the record contains sufficient evidence
for

the

administrative

law

judge

to

make

an

informed

decision.”).
It is only where a consultative examination is necessary
for the ALJ to make a decision due to some conflict, ambiguity,
or

other

insufficiency

in

the
24

medical

evidence

that

the

regulations require an ALJ to order a consultative examination.
See 20 C.F.R. § 404.1519(a)(2) (“When we purchase a consultative
examination,

we

will

use

the

report

from

the

consultative

examination to try to resolve a conflict or ambiguity if one
exists. We will also use a consultative examination to secure
needed

medical

evidence

the

file

does

not

contain

such

as

clinical findings, laboratory tests, a diagnosis or prognosis
necessary

for

decision.”),

20

C.F.R.

§

404.1519a(b)

(“A

consultative examination may be purchased when the evidence as a
whole, both medical and nonmedical, is not sufficient to support
a decision on your claim.”); see also Hawkins v. Chater, 113
F.3d

1162,

1166

(10th

Cir.

1997)

(“The

Secretary

has

broad

latitude in ordering consultative examinations.”).
In this case, Plaintiff’s contention that the ALJ lacked
sufficient
regarding

evidence

upon

Plaintiff’s

which

to

limitations

make
is

an

informed

incorrect.

The

decision
ALJ

had

sufficient evidence before her to accurately assess Plaintiff’s
impairments. The ALJ provided a thorough analysis of Plaintiff’s
medical treatment including the treatment under both Drs. Revels
and Ruan.

Additionally, the record contains the results of a

number

MRIs

of

and

X-rays,

none

of

which

identified

any

significant problems after Plaintiff’s fusion surgery in 2005.
Also, Plaintiff testified that she was currently working parttime approximately five days a week as a housekeeper, which is
25

medium unskilled employment, and that she is able to care for
her personal needs, drive, and perform some housework.

In light

of the foregoing, the undersigned finds that the evidence before
the

ALJ

was

sufficient

to

allow

her

to

render

an

informed

decision. Thus, the ALJ was not required to order a consultative
orthopedic examination, and accordingly, Plaintiff’s claim that
the ALJ failed to develop the record must fail.
c.

Whether the ALJ erred by improperly rejecting
Plaintiff’s subjective complaints of pain.

Plaintiff also argues that the ALJ erred in rejecting her
subjective
counters

complaints
that

the

of
ALJ

disabling

pain.7

thoroughly

The

Commissioner

discussed

Plaintiff’s

complaints of pain and set forth multiple reasons which support
her finding that Plaintiff’s subjective complaints concerning
the intensity, persistence and limiting effects of her symptoms
were not fully credible.

7

While Plaintiff alleges that the ALJ incorrectly found
that an MRI of her cervical spine performed on July 16, 2009,
showed no evidence of AP foraminal stenosis at C6-7 levels and
no evidence of thoracic vertebral body abnormality, the
undersigned has reviewed the relevant imaging results. The
cervical MRI results from July 16, 2009, do indeed state that
there was no evidence of AP or foraminal stenosis at C6-7 and
that C7-T1 were normal in appearance. (Id. at 343). Further, an
MRI of Plaintiff’s thoracic spine taken that same day reflects
no evidence of thoracic vertebral body abnormality. (Id. at
342).

26

The ALJ must consider all of a claimant’s statements about
her symptoms, including pain8, and determine the extent to which
the symptoms can reasonably be accepted as consistent with the
objective medical evidence. 20 C.F.R. § 404.1528.

20 C.F.R. §

404.1529 provides in part that the Commissioner will not find
disability based on symptoms, including pain alone, “... unless
medical signs or findings show that there is a medical condition
that could be reasonably expected to produce these symptoms.” In
determining whether the medical signs and laboratory findings
show medical impairments which reasonably could be expected to
produce

the

pain

alleged,

the

ALJ

must

apply

the

Eleventh

Circuit’s three-part “pain standard”:9
(1) evidence
of
an
underlying
medical
condition; and (2) either (a) objective
medical evidence that confirms the severity
8

Pain is a non-exertional impairment.
F.3d 1553, 1559 (llth Cir. 1995).
9

Foote v. Chater, 67

The Eleventh Circuit has also approved an ALJ’s reference
to and application of the standard set out in 20 C.F.R. §
404.1529, because that regulation “contains the same language
regarding the subjective pain testimony that this court
interpreted
when
initially
establishing
its
three-part
standard.” Wilson v. Barnhart, 284 F.3d 1219, 1226 (llth Cir.
2002). Thus, failure to cite to the Eleventh Circuit standard is
not reversible error so long as the ALJ applies the appropriate
regulation. Here, the ALJ cited the appropriate regulations and
noted that that she considered all symptoms and the extent to
which the symptoms could reasonably be accepted as consistent
with the objective medical evidence and other evidence based on
the requirements of 20 C.F.R. §§ 404.1529 and 416.929 and SSRs
96-4p and 96-7p. (Id. at 30).

27

of the alleged pain arising from that
condition
or
(b)
a
showing
that
the
objectively determined medical condition is
of such a severity that it can be reasonably
expected to give rise to the alleged pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (llth Cir. 2002).

See

also Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991);
Hoffman v. Astrue, 2007 U.S. App. LEXIS 29163 (11th Cir. Fla.
Dec. 13, 2007).
Even if a plaintiff meets the pain standard, the analysis
does not end there. The ALJ must then turn to the question of
the credibility of the plaintiff’s subjective complaints. See
Foote, 67 F.3d at 1560; Reliford v. Barnhart, 444 F. Supp. 2d
1182, 1189 n.1 (N.D. Ala. 2006) (The pain standard “is designed
to be a threshold determination made prior to considering the
plaintiff’s
disabling

credibility.”).
subjective

When

symptoms,

evaluating

a

the

considers

ALJ

claim

based

on

medical

findings, a claimant's statements, statements by the treating
physician, and evidence of how the pain affects the claimant’s
daily activities and ability to work. 20 C.F.R. § 416.929(a).
Credibility determinations are within the province of the
ALJ.

Moore v. Barnhart, 405 F.3d 1208, 1212 (llth Cir. 2005).

However,
testimony

where
about

an

ALJ

pain,

decides
the

ALJ

not
must

to

credit

articulate

a

claimant’s

“explicit

and

adequate reasons” for doing so, or the record must be obvious as
to the credibility finding.

Dyer v. Barnhart, 395 F.3d 1206,
28

1210 (11th Cir. 2005).

See also Jones v. Dep’t of Health & Human

Servs., 941 F.2d 1529, 1532 (llth Cir. 1991).10

If proof of

disability is based on subjective evidence and a credibility
determination is, therefore, critical to the decision, “‘the ALJ
must

either

implication

explicitly
must

be

so

discredit
clear

as

such
to

testimony

amount

to

a

or

the

specific

credibility finding.’” Foote, 67 F.3d at 1562 (quoting Tieniber
v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983) (although no
explicit finding as to credibility is required, the implication
must be obvious to the reviewing court)).
In this case, the ALJ set forth the proper

credibility

standard and then stated as follows with respect to Plaintiff’s
credibility:
After careful consideration of the evidence,
the undersigned finds that the claimant’s
medically
determinable
impairments
could
reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements
concerning the intensity, persistence and
limiting effects of these symptoms are not
credible to the extent they are inconsistent
with the above residual functional capacity
assessment.

10

Additionally, the regulations of the Commissioner require
an ALJ to address the credibility of a claimant’s subjective
complaints of pain in a particular manner. See SSR 96-7p
(mandating that the ALJ address in detail the basis for the
determination that the claimant's testimony on pain is not
credible).

29

In terms of the claimant’s alleged cervical
pain, the medical evidence indicates that
treating
physician,
Xiula
Ruan,
M.D.,
administered epidurals on February 2008,
June 2008 and October 2008 for diagnosis of
cervical dystonia, retrocollis. A cervical
spine MRI from December 31, 2008 showed mild
degenerative desiccation of the cervical
discs without significant narrowing of the
spaces. There was no significant spinal
canal or stenosis. A report from Dr. Ruan,
on May 12, 2009, indicates that claimant had
been under his care for chronic neck and
back pain since July 2006. Claimant was
taking Ultram and Lortab for pain symptoms,
that she indicated allowed her to remain
functional without side effects or sedation.
On July 1, 2009, claimant presented to
Mobile Infirmary Medical Center with acute
lower
back
pain
and
a
urinary
tract
infection. She was prescribed antibiotics
and instructed to increase fluid intake.
Cervical spine review from a MRI on July 16,
2009 showed no evidence of AP foraminal
stenosis at C6-C7 levels; and no evidence of
thoracic vertebral body abnormality. Discs
at levels
C7-T1 were normal in appearance.
(Exhibits 3F; 4F; 7F; 11F-13F).
With regard to the claimant’s kidney stones,
records show that on September 28, 2007, she
presented to Springhill Medical Center with
an onset of right-sided pain with radiation
to the groin area. Claimant was noted with a
history of kidney stones that was consistent
with the current episode. Claimant underwent
a flush treatment that allowed her to pass
the stone.
...
While it is credible that the claimant
experiences
some
pain
and
functional
limitations
due
to
cervical
pain
and
discomfort, it is not credible that she
experiences the level of pain and physical
restriction to the extent that she alleges
30

to be disabled. Claimant underwent C5-6
fusion
for
diagnosis
of
cervical
degenerative disc disease on January 10,
2006. On May 12, 2007, treating physician,
Dr. Ruan opined the claimant was able to
drive while on medication, as it actually
kept
her
functional.
Another
treating
physician, Dr. Revels agreed. On July 12,
2007, it was noted that claimant had
discontinued medicines during the day and
was using lidocaine patches instead that
allowed her to carry out her job as a
driver. Dr. Revels suggested claimant could
continue working as long as she did not take
pain medicines while driving.
(Id. at 30-31).
The undersigned finds that the ALJ’s credibility finding is
supported by substantial evidence. As observed by the ALJ, both
of Plaintiff’s treating physicians opined that she is capable of
working as long as she does not take pain medications and muscle
relaxers

while

at

work.

Plaintiff

also

reported

to

her

physicians that she wanted to return to work and that she would
utilize lidocaine patches while at work, and reserve her pain
medications for use at home.

(Id. at 226, 265).

Additionally,

as noted supra, Plaintiff testified that she works part-time
cleaning hotel rooms, that she cares for most of her personal
needs, and is able to grocery shop, carry a gallon of milk, grip
a cup of coffee, turn a doorknob, prepare a simple meal, bathe
and

dress

herself,

and

perform

some

household

chores

like

washing dishes, washing clothes, and making her bed. (Id. at 5253).
31

Based

on

the

foregoing,

the

undersigned

finds

that

the

ALJ’s credibility finding is supported by substantial evidence
and

concludes

that

the

ALJ’s

reasons

for

discrediting

Plaintiff’s testimony were clearly articulated in the decision.
As

noted

above,

this

Court

may

not

decide

the

facts

anew,

reweigh the evidence, or substitute its judgment but must accept
the

factual

supported
legal

findings

by

of

substantial

standards.

Bridges

the

Commissioner

evidence
v.

and

Bowen,

where

based

815

upon

F.2d

622

they
the

are

proper

(11th

Cir.

1987); see also Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.
1985).
V.

Conclusion
For

the

reasons

set

forth

above,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security, denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

supplemental security income, be AFFIRMED.
DONE this 28th day of September, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

32

and