Langley v. Astrue

Filing 27

Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/25/2013. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JEANNIE LANGLEY,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,1
*
Commissioner of Social Security, *
*
Defendant.
*

CIVIL ACTION NO. 11-00599-B

ORDER
Plaintiff,

Jeannie

Langley

(hereinafter

“Plaintiff”),

brings this action seeking judicial review of a final decision
of the Commissioner of Social Security denying her claim for
supplemental

security

income

under

Title

Security Act, 42 U.S.C. §§ 1381, et seq.

XVI

of

the

Social

On January 8, 2013,

the parties consented to have the undersigned conduct any and
all proceedings in this case.

(Doc. 20).

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) and
Federal Rule of Civil Procedure 73.
1

Upon careful consideration

Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d), Federal
Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit.
No further action need be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).

of the administrative record and memoranda of the parties, it is
hereby

ORDERED

that

the

decision

of

the

Commissioner

be

AFFIRMED.
I.

Procedural History
Plaintiff

supplemental
(Tr. 101).

protectively

security

income

filed
benefits

an
on

application
September

22,

for
2008.

In her application, Plaintiff alleges that she has

been disabled since June 1, 2007, due to major depression and
osteoarthritis.

(Id. at 63, 101).

Plaintiff’s application was

denied initially, and she timely filed a Request for Hearing.
(Id. at 70).

On January 11, 2010, Plaintiff attended, via video

conference, an administrative hearing before Administrative Law
Judge D. Burgess Stalley (hereinafter “ALJ”). 2

(Id. at 10, 30).

A vocational expert

(“VE”) also appeared at the hearing and

provided testimony.

(Id. at 31).

On March 17, 2010, the ALJ

issued an unfavorable decision finding that Plaintiff is not
disabled.

(Id. at 19).

Plaintiff’s request for review was

denied by the Appeals Council on August 24, 2011.

(Id. at 1).

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

Although informed of the right to representation, Plaintiff
chose to appear and testify at the administrative hearing
without the assistance of an attorney or other representative.
(Tr. at 30-31).

2

II.

Issue on Appeal
Whether substantial evidence supports the ALJ’s
RFC assessment?

III. Factual Background
Plaintiff was born on July 4, 1951, and was fifty-eight
(58) years of age at the time of the administrative hearing.
(Tr. 33).

Although she did not complete high school, she earned

her GED.

(Id. at 34).

Plaintiff’s last employment was as a

convenience store cashier in 2007.

(Id. at 34, 142).

Plaintiff

also worked as a park attendant at a campground from 2001 to
2007.

(Id. at 40, 142).

At the hearing, Plaintiff testified

that she has not worked since June 1, 2007,3 except for part-time
cleaning at her church.

According to Plaintiff, she was forced

to quit the part-time cleaning job because it hurt her back to
vacuum.

(Id. at 34-35).

At the hearing, Plaintiff characterized her “major problem”
as her left hip. Plaintiff testified that her hip

sometimes

“catches” and causes her severe pain which in turn requires her
to

hold

onto

something

to

avoid

falling.

(Id.

at

35).

Plaintiff testified that after such an episode, it can take two
weeks for the pain to go away.

(Id.).

3

In addition, Plaintiff

It is unclear from the record whether Plaintiff ceased working
as a convenience store cashier in June 2007 or August 2007.
(Tr. at 34, 142).

3

testified that she was seeing a mental health counselor, but she
stopped because she did not feel that it was helping her and
she could not afford to drive to the appointments. 4
38).

(Id. at 37-

Plaintiff also provided the ALJ a list of her medications

and the conditions for which they were prescribed. The list
included

Lyrica

hydrocodone
muscle

(which

(for

chronic

relaxation

relaxation

and

she

and

stated

back

and

depression),

depression),

was
hip

for

pain),

fibromyalgia),
diazepam

amitriptyline

methotrexate

(for

(for

(for

muscle

arthritis),

prednisone (for arthritis), and ibuprofen (for inflammation). 5
(Id. at 182).
me a little.”
IV.

Plaintiff testified that “[t]he medications help
(Id. at 39).

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

4

During her consultative interview with Dr. Kidd in November
2008, Plaintiff reported that she was down from smoking three
packs of cigarettes a day to one pack a day. (Id. at 274).

5

The record is devoid of any prescription logs or treatment
notes from any treating physician.

4

legal standards were applied.

6

1520, 1529 (11th Cir. 1990).

A court may not decide the facts

Martin v. Sullivan, 894 F.2d

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
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, *4
(S.D. Ala. 1999).
B.

Discussion

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

20 C.F.R. §§ 404.1512,

Disability is defined as the “inability to engage in

substantial

gainful

activity

6

by

reason

of

any

medically

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).
5

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.”
U.S.C.

§§

416.905(a).

423(d)(1)(A);

see

also

20

CFR

§§

42

404.1505(a),

The Social Security regulations provide a five-step

sequential evaluation process for determining if a claimant has
proven her disability.7

20 C.F.R. §§ 404.1520, 416.920.

In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity and that she has
7

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; and (4) the claimant’s age,
education and work history.
Id.
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, 836 (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

the severe impairments of arthritis, degenerative disc disease,
personality disorder, and major depression.

(Tr. 12).

The ALJ

next determined that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of
the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1.
The

ALJ

functional

(Id. at 12-13).
concluded

capacity

that

Plaintiff

(hereinafter

retains

“RFC”)

to

the

perform

residual
medium,

unskilled work, and that within that level of work, Plaintiff is
limited to work which will only require her to occasionally
lift/carry 50 pounds, to frequently lift/carry 25 pounds, to
stand,

walk,

remember,

and

and

sit

carry

for

6

out

out

simple

of

8

hours,

instructions,

infrequent contact with the general public.8

to

understand,

and

to

have

(Id. at 14-15).

Utilizing the services of a VE, the ALJ determined that
Plaintiff is not capable of performing her past relevant work
(hereinafter “PRW”) as a cashier or as a park attendant.
at 17).
factors

(Id.

However, considering Plaintiff’s RFC and vocational
such

as

age,

education,

and

work

experience,

in

conjunction with the Medical-Vocational Guidelines and the VE’s
8

The
ALJ
determined
that
while
Plaintiff’s
medically
determinable impairments could reasonably be expected to produce
some of her alleged symptoms, her statements concerning the
intensity, persistence, and limiting effects of these symptoms
were not credible to the extent that they are inconsistent with
the RFC assessment. (Id. at 15).

7

testimony, the ALJ determined that Plaintiff is able to perform
other

jobs

economy

existing

such

as

in

significant

janitorial

work

numbers

(in

in

both

the

light

national

and

medium

positions), which is an unskilled occupation; garment bagger,
which

is

a

light,

unskilled

occupation;

and

assembler, which is a light, unskilled occupation.

production
(Id. at 18).

Thus, the ALJ concluded that Plaintiff is not disabled.

(Id.)

The relevant evidence of record reflects that on January
20, 2005, Plaintiff received an MRI of her cervical and lumbar
spine at the Williamson Medical Center in Franklin, Tennessee,
after

complaining

report,

Dr.

of

Michael

neck

pain.

Metzman

(Id.

noted

at

that

215-16).
the

vertical

alignment of Plaintiff’s cervical spine was normal.
215).

In

the
body

(Id. at

He also noted “straining of the normal cervical lordosis

from C2 through T4,” and that the intervertebral discs showed
normal height and hydration.

(Id.).

Dr. Metzman’s impression

was that Plaintiff had a cervical muscle spasm, a “small central
protrusion at C5-6, slightly to the right of midline with thecal
sac effacement and minimal flattening of the right side of the
cervical cord,” and no evidence of central spinal or foraminal
stenosis.9

(Id.).

9

Spinal stenosis is “narrowing of the spinal column that causes
pressure on the spinal cord, or narrowing of the openings
(called neural foramina) where spinal nerves leave the spinal
column.” See http://www.nlm.nih.gov/medlineplus/ency/article/
8

With respect to Plaintiff’s lumbar spine, Dr. Metzman noted
that

the

vertebral

body

alignment

was

normal,

and

intervertebral discs showed normal height and hydration.
Dr.

Metzman’s

impression

was:

“[n]o

evidence

of

the

(Id.).

HNP”

10

or

“central spinal or significant foraminal stenosis,” and “[m]ild
bulges at T12-L1 through L4-5.”

(Id. at 216).

“There is a

small right annular tear [at] L4-5,” “[b]orderline right and
mild

left

foraminal

stenosis

at

L4-5

due

to

bulging

disc

material,” and “there is mild degenerative change of the facet
joints at L2-3 through L4-5.”

(Id.).

On September 22, 2008, Plaintiff filed her application for
supplemental security income benefits and reported that she had
been disabled since June 1, 2007 due to major depression and
osteoarthritis. 11
determination

(Id. at 63, 101).

process,

the

Agency

As part of the disability
referred

Plaintiff

to

W.G.

Brantley, Ph.D., for a consultative psychological examination.
(Id. at 270).

000441.htm
10

“HNP” in an acronym for “herniated nucleus pulposus” and is
another term for “slipped disk.” See http://www.umm.edu/ency/
article/000442.htm

11

Plaintiff previously filed an application for disability
insurance benefits and supplemental security income benefits
which was denied on March 24, 2004. (Tr. at 55-62).

9

On November 16, 2008, Plaintiff reported to Dr. Brantley
that she has a history of drug and alcohol addiction (in full
remission

for

five

years),

relating with people.”

and

that

(Id. at 270).

she

“ha[s]

difficulty

Dr. Brantley found that

Plaintiff met the criteria for Personality Disorder NOS with
narcissistic
Depression

and

in

some

partial

borderline
to

full

features,

remission

Recurrent

with

no

Major

psychotic

features, nicotine dependence, and alcohol dependence (remission
unconfirmed).

(Id.).

Dr.

Brantley

found

that

Plaintiff’s

appearance was appropriate, that her speech was normal, that
“she [was] talkative,” that her mood and affect were stable with
no evidence of anxiety or depression, that her cognition was
normal, that her attention and concentration were unimpaired,
that her memory and understanding were unimpaired, that she had
normal abstract thinking, that her thought processing was normal
although

her

“thought

self-centered,”
stable,”

and

that
that

content
she

her

[was]

was

rather

narcissistic

“cognitively

judgment

and

and

insight

and

emotionally
“allow

for

employment, especially if she maintains abstinence” from drugs
and alcohol.
her

(Id. at 270-71).

cooperation,

with

the

Dr. Brantley further found that
exception

“basically within normal limits.”

of

one

anomaly,

was

(Id. at 271).

The Agency also referred Plaintiff to Dr. Huey Kidd for a
consultative physical examination.

10

Dr. Kidd examined Plaintiff

on November 19, 2008. Plaintiff reported that she has pain in
all of her joints, as well as her feet, knees (particularly the
left

knee),

hips

(particularly

shoulders, and neck.

the

left

(Id. at 273).

hip),

back,

hands,

In addition, Plaintiff

reported that she suffers from headaches and chronic depression.
(Id.).
Dr.
nose,

Kidd’s

throat,

examination
neck,

and

of

Plaintiff’s

heart

were

head,

normal.

ears,

eyes,

(Id.).

His

examination of her lungs revealed “[d]ecreased breath, sounds
throughout,” but “[n]o wheezing, no rales, [and] no rhonchi.”
(Id.).

Dr.

Kidd’s

examination

of

Plaintiff’s

extremities

resulted in the following findings:
She has full range of motion and 5/5
strength of the upper extremity, full range
of motion and 5/5 strength of the lower
extremity.
Grip strength 5/5.
She is able
to heel walk, able to toe walk, able to bend
and touch her toes, able to squat and stand.
Deep tendon reflexes 2/4 throughout.
She
has a Baker’s cyst palpable behind the left
knee. She ambulates without any difficulty.
She ambulates without a limp. She is rather
slow.
(Id.).
Kidd

Based upon his physical examination of Plaintiff, Dr.
opined

“depression.”
a

full

that
(Id.).

psychological

Plaintiff

has

“osteoarthritis”

and

Dr. Kidd recommended that Plaintiff “have
evaluation,”

12

12

and

noted

that

“her

As discussed above, Plaintiff had received a consultative
psychological examination by Dr. Brantley on November 16, 2008.

11

depression

could

be

contributing

to

possible

although “her physical impairments would not.”

disability”

(Id.).

On December 10, 2008, at the request of the Agency, Dr.
Ellen Eno, Ph.D., completed a Psychiatric Review Technique and a
Mental RFC Assessment on Plaintiff.
with

Major

Depression

in

She diagnosed Plaintiff

partial

to

full

remission

and

Personality Disorder with narcissistic and borderline features.
(Id. at 276, 279, 283, 298).

Dr. Eno concluded that Plaintiff

“has the ability to understand, remember, and carry out simple
instructions” that her contact with the general public should be
infrequent,

and

that

her

significant limitation.”
Also,

on

December

mental

impairments

result

in

“[n]o

(Id. at 300).
10,

2008,

a

State

agency

disability

examiner (Single Decision Maker), Ms. J. Wheeler, completed a
Physical RFC Assessment on Plaintiff.

(Id. at 290-97).

Based

on the results of the 2005 MRIs taken of Plaintiff’s spine and
Dr. Kidd’s November 19, 2008, physical examination, Ms. Wheeler
concluded that Plaintiff could occasionally lift and/or carry 50
pounds, frequently lift and/or carry 25 pounds, stand, walk,
and/or sit for about 6 hours in an 8-hour workday, and push
and/or pull without any limitation.

(Id. at 291).

Ms. Wheeler

further concluded that Plaintiff has no postural limitations, no
manipulative

limitations,

no

12

visual

limitations,

no

communicative

limitations,

and

no

environmental

limitations.

(Id. at 292-94).
On

September

10,

2009,

approximately

ten

months

after

Plaintiff’s physical examination by Dr. Kidd, Plaintiff received
x-rays of her left knee, lumbar spine, hips, and hands.
302).

(Id. at

Dr. James Courtney reported that Plaintiff’s left knee

showed no evidence of fracture or dislocation, that there was
“mild

to

moderate

compartment
narrowing,

with
and

osteoarthritic
osteophyte

no

joint

change

involving

effusion.

medial

13

formation,”

the
disc

space

slight

(Id.).

Dr.

Courtney’s

impression was “[m]oderate osteoarthritic change involving the
left knee.”

(Id.).

With respect to the lumbar spine, Dr. Courtney’s findings
included normal alignment, diffuse
with

osteophyte

throughout
(Id.).

the

formation
lumbar

and

spine,”

14

degenerative disc disease

slight
and

no

disc

space

narrowing

compression

fracture.

Dr. Courtney's impression was “[d]iffuse degenerative

disc disease throughout the lumbar spine.”

(Id.).

With respect to Plaintiff’s right hip, Dr. Courtney found
it to be “normal in appearance.”

(Id.).

Dr. Courtney found

13

See

14

localized.”

Osteophytes
are
another
term
for
bone
spurs.
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2633978/
The term diffuse means “not concentrated or
http://www.merriam-webster.com/medlineplus/diffuse

13

Plaintiff’s left hip to have “superior joint space narrowing
with osteophyte formation.”
“[t]hese

findings

change.

are

(Id.).

most

Dr. Courtney stated that

compatible

This is moderate in degree.”

was “[m]oderate osteoarthritic change.”

with

osteoarthritic

(Id.).

His impression

(Id.).

Last, with respect to Plaintiff’s hands, Dr. Courtney found
normal

alignment,

mild

osteopenia,

significant osteophyte formation.
osteopenia”

and

a

“[p]ositive

and

no

evidence

of

His impression was “[m]ild

ulnar

variance

bilaterally.”

15

(Id. at 303).
1.

Whether substantial evidence
the ALJ’s RFC assessment?

supports

Plaintiff argues that the ALJ’s finding that she retained
the RFC to perform a reduced range of medium unskilled work is
not supported by substantial evidence for two reasons.

First,

Plaintiff

Kidd’s

contends

that

the

ALJ’s

reliance

on

Dr.

November 19, 2008 consultative physical examination was flawed
because (a) Dr. Kidd did not obtain his own x-rays (and did not
have the benefit of the x-rays later taken on September 10,
2009);

and

(b)

Dr.

Kidd

did

not

complete

a

“Medical

Statement” as to Plaintiff’s functional limitations.

Source
Second,

Plaintiff argues that the ALJ’s RFC assessment is not supported
15

The term “ulnar variance” refers to the relative length of the
ulna compared to the radius. See http://www.ncbi.nlm.nih.gov/
pubmed/8171975.
A positive ulnar variance refers to a long
ulna. (Id.).
14

by substantial evidence because the ALJ improperly relied on a
physical RFC assessment performed by the Single Decision Maker,
a non-medical source, and did not have the benefit of a physical
RFC assessment performed by a medical source.
In

opposition,

the

Commissioner

(Doc. 14 at 3-7).

counters

that

the

ALJ’s

decision was not grounded solely upon the opinion of a nonmedical source but, rather, was supported by substantial medical
evidence including the consultative physical examination of Dr.
Kidd,

the

consultative

psychological

examination

of

Dr.

Brantley, the Psychiatric Review Technique Form and mental RFC
Assessment completed by Dr. Eno, and the medical records of
Plaintiff’s treating physicians. (Doc. 17 at 1-3).

For the

following reasons, the Court agrees with Defendant.
At the outset, the Court notes that Plaintiff’s assertions
of

error

do

not

involve

the

ALJ’s

findings

related

to

Plaintiff’s mental impairments (i.e., personality disorder and
major depression), nor does Plaintiff assert error related to
the mental RFC evaluation performed by Dr. Ellen Eno, in which
Dr.

Eno

concluded

limitation.”

that

Plaintiff

(Id. at 300).

has

“[n]o

significant

Rather, Plaintiff’s assertions of

error relate solely to the ALJ’s RFC determination regarding her
physical

impairments.

Thus,

allegations of error.

15

the

Court

turns

to

those

First, the record shows, as Plaintiff points out, that the
ALJ

gave

substantial

consultative
physical

examining

impairments

disability.

weight

to

the

opinion

of

physician

who

opined

that

did

contribute

(Id. at 16).

not

Dr.

to

Kidd,

a

Plaintiff’s
any

alleged

While Plaintiff is correct that Dr.

Kidd did not order x-rays when he examined her in November 2008,
he

did

conduct

a

series

of

physical

performed without difficulty.

tests

which

(Id. at 273-74).

Plaintiff

As discussed

above, upon examination, Plaintiff had a full range of motion
and 5/5 strength in both the upper and lower extremities; her
grip strength was 5/5; and she was able to heel walk, toe walk,
bend, touch her toes, squat, and stand.
tendon reflexes were normal

(Id. at 274).

Her deep

throughout, and she was able to

ambulate without difficulty and without a limp.

(Id.).

Given

Plaintiff’s superior level of performance on these tests, Dr.
Kidd’s decision to forego x-rays was not unreasonable.
Furthermore,

Plaintiff’s

reliance

on

the

2009

x-rays

is

misplaced given that those x-rays, like the 2005 MRIs, fail to
reveal any disabling medical condition.

As discussed above, the

2005 MRIs of Plaintiff’s cervical and lumbar spine show normal
alignment, height, and hydration, mild degenerative changes, and
no evidence of disc herniation or significant central spinal or
foraminal stenosis (narrowing).

16

(Id. at 215-16).

Similarly,

the 2009 x-rays show normal alignment
diffuse

(non-localized)

osteophyte

formation,

of the lumbar

degenerative
and

slight

disc
disc

In

addition,

they

show

only

spine,

disease
space

“moderate

with

narrowing

throughout, with no evidence of compression fracture.
302).

16

(Id. at

osteoarthritic

change” in Plaintiff’s left knee and left hip, a normal right
hip, and “mild osteopenia” and a “[p]ositive ulnar variance” in
the hands.

(Id. at 302-03).

Thus, Dr. Kidd’s consultative

physical evaluation was not flawed by the fact that he did not
have the benefit of the 2009 x-rays when he examined Plaintiff
in 2008.
The

Court

also

rejects

Plaintiff’s

contention

that

Dr.

Kidd’s consultative examination was flawed because he failed to
complete a formal “Medical Source Statement”
functional

limitations,

and,

consequently,

17

of Plaintiff’s
the

ALJ’s

RFC

assessment was not based on substantial evidence because the
record is devoid of an assessment of Plaintiff’s limitations by
any examining medical source.

First, contrary to Plaintiff’s

16

The 2009 x-rays did not include views of the cervical spine.
(Tr. at 302).

17

Medical source statements are “medical opinions submitted by
acceptable medical sources, including treating sources and
consultative examiners, about what an individual can do despite
a severe impairment(s), in particular about an individual's
physical or mental abilities to perform work-related activities
on a sustained basis.” SSR No. 96-5p, 1996 SSR Lexis 2.

17

assertions,

“the

Eleventh

Circuit

has

not

set

out

a

rule

indicating that an RFC must be based on the assessment of a
treating or examining physician in every case.”

Saunders v.

Astrue, 2012 U.S. Dist. LEXIS 39571, *10 (M.D. Ala. March 23,
2012).

“The

ALJ's

RFC

assessment

may

be

supported

by

substantial evidence, even in the absence of an opinion from an
examining medical source about Plaintiff’s functional capacity.”
Id. at n.5 (citing Green v. Soc. Sec. Admin., 223 Fed. Appx.
915, 923 (11th Cir. 2007) (unpublished)).
In

Green,

the

Eleventh

Circuit

affirmed

the

district

court’s finding that the ALJ's RFC assessment was supported by
substantial evidence where the ALJ had good cause to “devalue”
the treating physician's opinion and, instead, formulated the
plaintiff's RFC based on treatment records, without a physical
capacities evaluation by any physician.
923-24.

Id., 223 Fed. Appx. at

The court noted, “[a]lthough a claimant may provide a

statement

containing

a

physician’s

opinion

of

her

remaining

capabilities, the ALJ will evaluate such a statement in light of
the other evidence presented and the ultimate determination of
disability is reserved for the ALJ.”

Id., 223 Fed. Appx. at 923

(citing 20 CFR §§ 404.1513, 404.1527, 404.1545); see also Packer
v. Astrue, 2013 U.S. Dist. LEXIS 20580, *7 (S.D. Ala. February
14,

2013)

(the

fact

that

no

treating

or

examining

source

submitted a physical capacities evaluation “does not, in and of

18

itself, mean that there is no medical evidence, much less no
‘substantial evidence’ to support the ALJ’s decision.”).
the

ALJ’s

RFC

assessment

may

be

supported

by

Thus,

substantial

evidence even absent an RFC evaluation by a medical source.
Second, while it is true that Dr. Kidd did not complete a
Medical Source Statement in this case related to Plaintiff’s
functional

capacity,

he

did

assess

many

of

Plaintiff’s

non-

exertional limitations, such as range of motion, grip strength,
upper and lower extremity strength, and ability to bend and
squat, as well as some exertional limitations such as ability to
walk

and

stand,

and

found

Plaintiff’s

respects to be without limitation.

18

abilities

(Id. at 274).

in

those

Thus, while

not as detailed as a formal Medical Source Statement, Dr. Kidd
did

provide

an

assessment

of

and

opinion

as

to

many

of

Plaintiff’s physical limitations, all of which were consistent
with the medical evidence in this case, including the 2005 MRIs

18

“Nonexertional limitations . . . relate to limitations that
affect capacities such as mental abilities, vision, hearing,
speech, climbing, balancing, stooping, kneeling, crouching,
crawling, reaching and the like.”
Saunders, 2012 U.S. Dist.
LEXIS 39571, *12 n.9, 2012 WL 997222, *4 n.9 (citing Social
Security
Ruling
96–9P,
1996
LEXIS
6
(July
2,
1996)).
“Environmental
restrictions
are
also
considered
to
be
nonexertional limitations.” (Id.). “Exertional limitations are
defined as those restrictions affecting a person’s ability to
meet what the Social Security Administration considers the seven
strength demands of a job: sitting, standing, walking, lifting,
carrying, pushing, and pulling.” (Id.).

19

and the 2009 x-rays.19
In addition to Dr. Kidd’s assessment regarding Plaintiff’s
physical

impairments,

Dr.

Eno

assessed

Plaintiff’s

impairments and found “[n]o significant limitation.”
300).

mental
(Tr. at

Dr. Eno’s findings were consistent with those of Dr.

Brantley.
Moreover, Plaintiff’s own testimony is consistent with the
ALJ’s RFC assessment.

As discussed above, Plaintiff testified

at the administrative hearing that her “major problem” is her
left hip, which “catches,” causing her to have to hold onto
something to avoid falling, and which causes her pain thereafter
for about two weeks.
that

her

knee

(Id. at

(unspecified

35).

as

to

Plaintiff also testified
left

or

right)

gave

her

problems in “the early 2000s,” but now “that is not as bad.”
(Id.).

Plaintiff

testified

that

she

can

bathe

herself, although she has difficulty wearing shoes.
135).

and

dress

(Id. at

Additionally, Plaintiff testified that she chooses not to

19

The Court recognizes that Dr. Kidd did not assess all of
Plaintiff’s exertional limitations (such as her ability to sit,
lift, carry, push, and pull) (Tr. at 274).
Even so, as
discussed herein, the substantial evidence supports the ALJ’s
RFC assessment even without a full and formal RFC evaluation by
a medical source. Cf. Saunders, 2012 U.S. Dist. LEXIS 39571, at
*11-18 (finding insufficient evidence in the record to support
the ALJ's assessment that claimant had an RFC to perform a full
range of medium work where claimant’s treating physician had
advised her to “avoid heavy lifting,” and the record was devoid
of any medical opinions concerning any of her exertional or nonexertional limitations).

20

cook, although she is capable of preparing all of her own meals,
and that she does light housekeeping and her own laundry, as
well as her adult son’s laundry and ironing.20

(Id. at 36, 136).

Plaintiff also testified that she drives, shops for groceries,
plants flowers (although “it is slow”), watches birds, reads,
draws, and writes (although drawing and writing make her hands
hurt).21

(Id. at 136-38).

Thus, having carefully reviewed the evidence in this case
at length, the Court finds that the ALJ’s RFC determination of a
reduced

range

substantial

of

medium

evidence

even

unskilled
without

a

work
formal

is

supported

assessment

by

by
an

examining medical source of Plaintiff’s exertional limitations.
This

is

particularly

true

given

the

results

of

Dr.

Kidd’s

physical examination and his opinion that Plaintiff’s physical
impairments were not contributing to any possible disability,
and the fact that Plaintiff’s medical records viewed as a whole
show little impairment.
Finally, the Court agrees with Plaintiff that the ALJ erred
in assigning “greater weight” to the opinion of Ms. Wheeler, a
20

Plaintiff testified that she has to rest after ironing two
shirts because it makes her back hurt. (Tr. at 36).

21

This evidence is consistent with Dr. Eno’s findings that
Plaintiff “takes care of pets, [is] able to perform self-care,
prepare[s] and cook[s] meals, perform[s] light household chores,
goes outside daily, drives, shops, reads, does not socialize,
[and] goes to church. . . .” (Tr. at 288).

21

Single Decision Maker who performed a physical RFC assessment on
Plaintiff.

A single decision maker “is not a medical source and

her conclusions [are] not entitled to any weight.”

Salter v.

Astrue, 2012 U.S. Dist. LEXIS 125006, *19 (S.D. Ala. September
4,

2012)

(citations

and

(emphasis in original).

internal

quotation

marks

omitted)

However, “reliance on an RFC assessment

completed by an SDM is not always fatal.”

Id.

Where, as here,

“the ALJ's RFC is otherwise supported by substantial evidence,
any reliance on a source entitled to no weight[, such as an
SDM,] may be harmless error, and, if so, the Court will affirm
the

Commissioner's

necessary

linkage

proper]

evidence

ability

to

decision
between

in

perform

requirements

of

the
the

[if

the

that

RFC

record

Id.

assessment

bearing

physical,

work.”

decision]

upon

provides

and
the

specific[,
plaintiff's

mental,

sensory,

*19-20

(citations

at

(emphasis and brackets in original).

the

and

other

omitted)

Having found in this case

that the medical evidence supports the ALJ’s RFC determination
even without a physical RFC assessment by a medical source, the
Court finds this error to be harmless.
V.
For

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

22

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be AFFIRMED.
DONE this 25th day of March, 2013.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

23