Caster v. Astrue

Filing 25

Order ent. that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, andsupplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/26/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TAMIKA L. CASTER,

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

Civil Action No. 12-00595-B

ORDER
Plaintiff Tamika L. Caster (hereinafter “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 September

8, 2013, the parties consented to have the undersigned conduct
any and all proceedings in this case. (Doc. 18).
action

was

referred

to

the

undersigned

to

Thus, the
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. (Doc.
1

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).

21).

Upon careful consideration of the administrative record

and the memoranda of the parties, it is hereby ORDERED that the
decision of the Commissioner be AFFIRMED.

I.

Procedural History
Plaintiff protectively filed an application for a period of

disability,

disability

insurance

benefits,

and

supplemental

security income on November 3, 2008. (Tr. 140-45).

Plaintiff

alleges that she has been disabled since October 21, 2008, due
to

her

back

applications
granted

an

pain.
were

(Id.

denied

administrative

at

56,

and

upon

hearing

140,

142).

timely
before

Plaintiff’s

request,

she

was

Administrative

Law

Judge Linda Helm (hereinafter “ALJ”) on June 10, 2010. (Id. at
49).

Plaintiff,

her

attorney,

Jonathan

Gardberg,

and

a

Vocational Expert (hereinafter “VE”) attended the hearing and
offered testimony. (Id. at 47-77).

On July 29, 2010, the ALJ

issued an unfavorable decision finding that Plaintiff is not
disabled. (Id. at 28-42). The Appeals Council denied plaintiff’s
request for review on July 27, 2012. (Id. at 1-3).

The parties

waived oral argument (Docs. 19, 20), and 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.

Issue on Appeal

A.

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

III. Factual Background
Plaintiff was born on May 23, 1973, and was 37 years of age
at the time of her administrative hearing on June 10, 2010. (Tr.
122, 54).

Plaintiff testified at the hearing that she graduated

from high school and last worked in 2008 as a certified nursing
assistant for the mental health ward at Searcy Hospital. (Id. at
56,

161).

According

to

Plaintiff,

she

can

no

longer

work

because she has “excruciating back pain [that]…feels like [her]
bones are rubbing together.” (Id. at 58).

Plaintiff testified

that her pain inhibits her ability to “stay in one position for
too long” and “there’s no comfortable position that [she] can
get

in

for

a

long

period

of

time…”

(Id.

at

58-59).

She

testified that she underwent back surgery that “helped for a
short while, and [she] thought [she] was going to be able to go
back to work, but the pain came back.” (Id. at 59).

Thus, she

decided to resign from her job because “the pain is not letting
up.” (Id.).

3

Plaintiff testified that she takes Flexeril 2 , Vicodin 3 , and
“Etspolac” 4 , which help with her ailments. (Id.).

According to

Plaintiff, Flexeril causes her to sleep for two or three days;
thus, she only takes it when her pain is “excruciating pain”.
(Id. at 60).

She takes her other two medications on a regular

basis and they help with her pain.(Id.).
Plaintiff

testified

that

she

also

experiences

knee

problems, which affect her right knee more than the left, and
that her mediations help with her knee pain as well. (Id. at 6061).

Plaintiff

also

testified

injections in her knee because

that

she

declined

cortisol

she felt that the injections

would only “cover up” her pain as oppose to helping to cure her
ailment. (Id.).
With regards to her daily activities, Plaintiff testified
or indicated on her function report that she drives her children

2

Flexeril® is a muscle relaxant that is used with rest, physical therapy, and
other measures to relax muscles and relieve pain and discomfort caused by
strains, sprains, and other muscle injuries. See http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a682514.html. (Last visited: March 12, 2014).

3

Vicodin® tablets are indicated for the relief of moderate to moderately
severe pain. See http://dailymed.nlm.nih.gov/dailymed/archives/
fdaDrugInfo.cfm?archiveid=3926. (Last Visited: March 12, 2014).

4

After exhaustive research, the Court was unable to find a drug named
“Etspolac”, which Plaintiff testified is an anti-inflammatory prescription
drug that she takes to alleviate the burning sensation in her back. (Tr. 59).
Research suggests that “Etspolac” may be a misspelling for the drug Etodolac,
which is an anti-inflammatory medication. See http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a692015.html. (Last visited: March 12, 2014).
Etodolac is in a class of medications called nonsteroidal anti-inflammatory
drugs that work by stopping the body’s production of a substance that causes
pain, fever, and inflammation. (Id.).

4

to school, shops at the grocery store “every other day”, does
light housework, such as vacuuming, washing dishes and sweeping
the

floor,

watches

television,

sits

outside,

and

prepares

“simple” meals for her family. (Id. at 63-64, 167, 169, 170).
Plaintiff

also

testified

that

she

attends

social

events,

sporting events, and church services. (Id. at 64).

IV.

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.5 Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990).

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).

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) (holding substantial evidence
is

defined

as

“more

than

a

5

scintilla,

but

less

than

a

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

preponderance”
reasonable

and

person

conclusion.”).

consists
would

In

of

“such

accept

determining

as

relevant
adequate

whether

evidence
to

as

support

substantial

a
a

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. June 14, 1999).

B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

423(d)(1)(A);

see

also

20

C.F.R.

§§

404.1505(a), 416.905(a). The Social Security regulations provide
a five-step sequential evaluation process for determining if a
claimant

has

proven

his

disability.

6

6

20

C.F.R.

§§

404.1520,

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

6

416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity throughout the
period

under

consideration

and

that

she

has

the

severe

impairments of degenerative disc disease of the lumbar spine,
effusion of the knees bilaterally, and history of papilledema
with associated cephalgia - pseudotumor cerebri. (Tr. 33).

The

ALJ further found 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. (Id. at 34).
The

ALJ

concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform less than the
full range of light work. (Id. at 35).

The ALJ concluded that

Plaintiff needs the ability to alternate between sitting and

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)).

7

standing, but does not need to leave the workstation. (Id.).
She is limited to no more than occasional climbing stairs and
ramps, bending and balancing, and no more than rarely stooping,
kneeling, crouching, and crawling. (Id.).

She is completely

restricted

climbing

from

operating

foot

controls,

ladders,

scaffolds or ropes, and working around unprotected heights or
dangerous

equipment.

Plaintiff

is

(Id.).

limited

to

The

jobs

ALJ

with

further

simple,

concluded

one

to

two

that
step

instructions and should avoid jobs with complex and detailed
instructions. (Id.).
The

ALJ

also

determined

that

Plaintiff’s

statements

concerning her impairments and their impact on her ability to
work

are

“considerably

more

limited

and

restricted

than

is

established by the objective evidence of record.” (Id. at 37).
While the ALJ concluded that Plaintiff’s RFC precludes her from
performing her past work as a certified nursing assistant, a
housekeeper, and a telemarketer (id. at 40), the ALJ utilized a
VE and determined that based on Plaintiff’s age, education, work
experience,

and

RFC,

she

can

perform

the

representative

occupations of a mail clerk/non-postal, parking lot attendant,
and ticket taker/ticket seller. (Id. at 41).
concluded that Plaintiff is not disabled. (Id.).

8

Thus, the ALJ

1. Medical Evidence7
The medical records reflect that Plaintiff sought treatment
at Saraland Chiropractic starting in July of 2006. (Id. at 22227).

From

July

12,

2006

through

August

7,

2006,

Plaintiff

sought chiropractic care on eight occasions throughout the onemonth time period. (Id. at 226).
Plaintiff

complained

of

low

back

Treatment notes reflect that
pain

that

was

consistently

improving and became “better” with each visit. (Id.).
More

than

a

year

later,

Plaintiff

returned

to

Saraland

Chiropractic on March 26, 2008, and reported that her lower back
had been hurting for three months and that her left leg had
recently

began

hurting

as

well.

(Id.

at

222,

226).

X-rays

revealed lumbar spinal complications. (Id. at 223).

Over the

course

frequent

of

a

chiropractic

three

week

treatments.

period,
(Id.

at

Plaintiff

received

226-27).

Treatment

notes

reflect that although Plaintiff was “getting better”, her low
back pain was “persistent”. (Id. at 227).
On October 7, 2008, Plaintiff sought treatment for her back
pain from Dr. Fontana, an orthopedic surgeon

at the Alabama

Orthopaedic Clinic. (Id. at 233).

Dr. Fontana’s treatment notes

reflect

“lower

that

Plaintiff

reported

back

pain

and

pain

radiating down [her] legs and buttocks” for six months. (Id.).
7

While the undersigned has considered all the evidence of record, only those
records bearing on Plaintiff’s impairments during the relevant time period
are discussed herein.

9

Dr. Fontana’s physical examination revealed lower back spasm,
slightly decreased sensory in her foot, and decreased reflexes
in her Achilles. (Id.).

Upon testing, Plaintiff’s range of

motion was measured at forward flexion 30, extension 20, and
left and right lateral flexion 20. (Id.).
spine,

anteroposterior,

lateral,

and

degenerative disc disease. (Id.).

X-rays of her lumbar

obliques,

revealed

mild

Dr. Fontana’s impression was

lumbar radiculopathy, which he treated with Medrol 8 .

He also

recommended an MRI. (Id.).
On

October

disability,
revealed

21,

2008,

had

an

she

posterior

and

Plaintiff’s

MRI
left

of

her

alleged

lumbar

paracentral

onset

spine.

disc

date
The

herniation

of
MRI

with

left lateral recess, proximal left foraminal, and central canal
stenosis
annular

at

L5-S1.

tear

and

(Id.

at

posterior

229).

It

protrusion

also
at

revealed

L4-L5

with

midline
minimal

foraminal encroachment and concentric central canal narrowing.
(Id. at 230).

During a follow-up visit with Dr. Fontana on

October 24, 2008, physical exam of Plaintiff revealed restricted
range of motion and continuous pain. (Id.).

After discussing

treatment options, Dr. Fontana scheduled Plaintiff an epidural

8

Medrol® is the brand name for Methylprednisolone, a corticosteroid, which is
similar to a natural hormone produced by the adrenal glands. See
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682795.html. (Last visited:
March 13, 2014).
It is often used to replace this chemical when your body
does not make enough of it. (Id.). It relieves inflammation, swelling, heat,
redness, and pain. (Id.).

10

steroid injection and prescribed Tylox9. (Id. at 232).
On November 7, 2008, Plaintiff returned to Dr. Fontana and
reported that she continued to experience pain that radiated
down

her

leg.

(Id.

at

231).

Upon

physical

exhibited restricted range of motion. (Id.).

exam,

Plaintiff

Dr. Fontana gave

Plaintiff a temporary “work excuse” and prescribed Lortab for
her pain. (Id.).
Plaintiff began seeing Dr. James West, M.D., an orthopedic
surgeon, for her back pain on November 26, 2008. (Id. at 238).
Plaintiff reported to Dr. West that she had pain in her lower
back and left buttocks that had been ongoing for two months.
(Id.).

She rated her pain a five out of ten on the pain scale.

(Id.).

Her physical examination by Dr. West revealed lumbar

spasm, tenderness and pain on forward flexion, and decreased
left S1 reflex; however, she was able to accomplish a positive
strait leg raise on her left leg. (Id.).

X-rays revealed mild

degenerative disc disease and an MRI revealed a herniated disc
at left 4-5. (Id.).

Dr. West prescribed Mobic 10 , Darvocet 11 , and

9

Tylox® (oxycodone and acetaminophen capsules) is narcotic medication that is
indicated for the relief of moderate to moderately severe pain. See
http://dailymed.nlm.nih.gov/dailymed/lookup.cfm?setid=bdf359c2-a984-4e2b90f7-f2f95613afca. (Last visited: March 13, 2014).

10

Mobic® is an anti-inflammatory drug. See http://dailymed.nlm.nih.gov/
dailymed/archives/fdaDrugInfo.cfm?archiveid=14800. (Last visited: March
2014).

11

13,

Darvocet® is a brand name for Propoxyphene, which is a medicine used to
relieve pain. See http://www.nlm.nih.gov/medlineplus/ency/article/002537.htm.
(Last visited: March 13, 2014).

11

Soma

12

and

recommended

a

4-5

physical therapy. (Id.).

epidural

steroid

injection

and

Dr. West restricted Plaintiff from

work from November 17, 2008 until she was rechecked on Dec. 17,
2008. (Id.).
The

treatment

notes

reflect

that

Plaintiff

underwent

physical therapy from December 3, 2008 to December 22, 2008.
(Id. at 248-54).

The treatment notes reflect that Plaintiff had

nine physical therapy sessions over that time period and that
that her progress was “fair”; her posture was improved; she was
independent with her HEP; and she appeared to have “maximally
benefited”

from

the

therapy.

(Id.

at

251,

253).

Plaintiff

reported that she felt a “little better”, and she credited her
success to her medications and the epidural as opposed to the
therapy. (Id. at 253).
During

Plaintiff’s

follow-up

visit

with

Dr.

West

on

December 22, 2008, she reported that she had been experiencing
difficulty

with

her

daily

continued. (Id. at 237).

routine

and

that

her

symptoms

She also reported moderate pain.

West performed another steroid epidural injection. (Id.).

Dr.
A

week later, Plaintiff’s medications were refilled. (Id.).
Dr. West’s treatment notes reflect that on January 5, 2009,

12

Soma® is the brand name for Carisoprodol, a muscle relaxant, which is used
with rest, physical therapy, and other measures to relax muscles and relieve
pain and discomfort caused by strains, sprains, and other muscle injuries.
See
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682578.html.
(Last
visited: March 13, 2014).

12

Plaintiff reported that her epidural treatment caused her to
become worse than she was before the treatment. (Id. at 236).
During Plaintiff’s office visit the next day, Dr. West advised
her that because the epidural failed, surgery was her only other
option. (Id. at 237).
hold

her

out

of

Dr. West also gave Plaintiff a “note to

work

for

a

further

period

prescribed her additional medications. (Id.).
returned

to

Dr.

West

the

next

week,

she

of

time”

and

When Plaintiff

confirmed

that

she

surgery

on

wanted to proceed with the surgery. (Id. at 236).
Plaintiff

underwent

L5-S1

January 20, 2009. (Id. at 240).

microdiscectomy

The treatment notes reflect

that Plaintiff tolerated the procedure well and returned to the
recovery room in satisfactory condition. (Id.).
When Plaintiff returned for her three-week postoperative
appointment on February 9, 2009, Dr. West noted that Plaintiff
was “doing well”; she had “decreased symptoms”; and she was
“tolerating her daily routine”. (Id. at 235).

Additionally, Dr.

West noted that her wound was benign. (Id.).

Dr. West cleared

Plaintiff to drive and instructed her to “slowly increase her
activity and increase her walking program.” (Id.).
restricted

Plaintiff

from

all

heavy

lifting,

Dr. West

bending,

and

twisting and noted that she was “unable to work” at the time.
(Id.).
At Plaintiff’s six-week postoperative appointment on March

13

2, 2009, Dr. West found that Plaintiff was “doing well” and
exhibited

a

decrease

in

symptoms.

“[m]arked

improvement

of

her

(Id.).

radicular

Dr.

West

noted

symptoms”

with

“some

residual anticipated lumbar complaints.” (Id.).

He referred her

to physical therapy and told her to “hold her out of work for
[two] weeks”.

He also noted that when she returned for her

follow up in two weeks, she would likely be ready to “return to
work.” (Id.).
Plaintiff

underwent

physical

therapy

through March 16, 2009. (Id. at 243-46).

from

March

5,

2009

The treatment notes

reflect that Plaintiff was “doing better”; she was “good over
the” weekend”; and that she reported that “since the surgery her
left [leg] radicular have resolved”. (Id. at 245-46).

However,

Plaintiff also reported that she “continue[d] to have left sided
lumbar pain with long periods of standing.” (Id. at 246).
On March 26, 2009, Plaintiff returned to Dr. West for her
nine-week postoperative appointment. (Id. at 241).

Dr. West

found that Plaintiff was “doing reasonably well regarding her
lumbar spine.” (Id.).
less

pain,

and

better

He also found that she had less spasm,
range

of

reported pain in both knees. (Id.).

motion.

(Id.).

Plaintiff

Upon examination, Dr. West

found that Plaintiff had effusion in only the left knee with
“some decreased range of motion.” (Id.).

Dr. West “offered to

inject her [left] knee [with] corticosteroid”. (Id.).

14

However,

Plaintiff opted to “hold off” on the knee treatment. (Id.).
Thus, Dr. West advised her to consider the injections if her
left knee did not improve. (Id.).

After a complete assessment,

Dr.

could

West

found

that

Plaintiff

“return

to

work

at

light/medium duty” with no heavy lifting, bending, or twisting.
(Id.).
On May 4, 2009, Dr. Francis Sullivan, M.D., a state agency
physician, reviewed Plaintiff’s medical records and diagnosed
Plaintiff with mild degenerative disc disease with a secondary
diagnosis
Sullivan

of

lumbar

opined

that

radiculopathy.
Plaintiff

could

(Id.

at

perform

255-62).
the

Dr.

exertional

demands of a range of light work that does not require climbing
ropes, ladders, or scaffolds. (Id. at 257).

He further opined

that she could do no more than occasional climbing of ramps and
stairs, stooping, and crouching. (Id.).

He also opined that she

should avoid exposure to hazards. (Id. at 259).
On June 26, 2009, Plaintiff sought treatment from Franklin
Primary Health Center (“Franklin”) for back pain. (Id. at 278).
Plaintiff reported her pain as a ten out of ten on the pain
scale.

(Id.).

Her

physical

examination

was

largely

normal,

except tenderness over her L-5 spine, bilateral knee crepitus,
and pain over her knees and elbows. (Id. at 278-79).

Plaintiff

was diagnosed with arthritis, back pain, and bilateral elbow and
knee pain. (Id. at 279).

Plaintiff was prescribed medications.

15

(Id.).
About a month later, on July 24, 2009, Plaintiff returned
to Franklin and reported chronic low back pain. (Id. at 276).
At

this

stamps”

visit,
that

Plaintiff

specified

“unable to work.” (Id.).

also

that

requested

she

had

a

“a

letter

for

“disability”

food

and

was

A physical examination revealed that

Plaintiff was “nontender to her L-5 spine”, she had bilateral
knee

crepitus,

and

her

blood

pressure

was

elevated.

(Id.).

Plaintiff was diagnosed with low back pain, hyperlipidemia, and
hypertension.

(Id.).

The

physician

decreased

her

Lortab

medication for pain and increased her Mobic prescription. (Id.).
She was instructed to return in one month. (Id.).
Plaintiff returned to Franklin on September 21, 2009, and
reported persistent low back pain and numbness in her buttocks
that radiated to her left thigh. (Id. at 272-274).

Plaintiff

also reported that her pain was an eight out of ten on the pain
scale.

(Id.).

The

treatment

notes

reflect

that

Plaintiff

appeared “comfortable” and she had a positive bilateral strait
leg test. (Id.).
laminectomy,

Plaintiff was diagnosed with status post-

hyperlipidemia,

and

hypertension.

(Id.

at

273).

Plaintiff was initially prescribed Lortab and Mobic; however,
she was counseled on potential dependency to Lortab and advised
that her Lortab would be withheld until Franklin received a note
from Dr. West. (Id.).

After counseling, Plaintiff agreed to

16

discontinue Lortab. (Id.).

The record reflects that Plaintiff

did return to Franklin for any additional treatments after this
visit.
Over

four

months

later,

on

January

27,

2010,

Plaintiff

presented to Mobile Infirmary Medical Center with complaints of
back pain for about four days. (Id. at 265).

Plaintiff reported

her pain as a ten out of ten on the pain scale. (Id.).
treatment

notes

reflect

distress”. (Id.).
had

lower

that

Plaintiff

was

in

“no

The
acute

A physical assessment revealed that Plaintiff

lumbar

paraspinal

spasm

and

tenderness.

(Id.).

Plaintiff’s range of motion in her back and her extremities were
“within
showed

normal
no

limits”.

(Id.).

abnormalities.

X-rays

(Id.

at

of

Plaintiff’s

270-71).

Plaintiff

back
was

diagnosed with acute back pain and low back strain of the lumbar
area. (Id. at 269).

Plaintiff was prescribed Vicodin, Lodine,

and Flexeril and instructed to refrain from strenuous activity,
lifting more than five pounds, bending, stooping, and prolonged
sitting until she was well. (Id.).

She was also instructed to

rest at home and stay home from work for the remainder of the
day and the next day. (Id.).
Five months later, on June 7, 2010, Plaintiff presented to
the University of South Alabama Children’s and Women’s Hospital
with

complaints

of

right

side

and

back

pain.

(Id.

at

295).

Plaintiff also complained of nausea and stated that she had been

17

“belching

frequently.”

(Id.

at

291).

The

treatment

notes

reflect that upon admission, Plaintiff was alert, oriented, and
active and that she had began taking Lortab again. (Id. at 291,
295).

Plaintiff’s

final

(cholelithiasis). (Id.).

diagnosis

was

gallstones

She was treated, discharged in stable

condition, and instructed to follow up with the Franklin Clinic.
(Id.).

There are no records indicating that Plaintiff sought

any follow-up treatment from the Franklin Clinic.

2. Issue
A. Whether the ALJ erred in failing
develop the record by not ordering
orthopedic consultative examination?
In

her

brief,

Plaintiff

argues

that

the

to
an

ALJ

erred

in

denying her request for a consultative examination with a board
certified orthopedic surgeon. (Doc. 13 at 2).

Specifically,

Plaintiff argues that the ALJ’s statement that “[t]here is no
indication of a change in the [Plaintiff’s] condition, the
current severity of which is not established” (tr. 40) required
the

ALJ

to

obtain

a

consultative

examination

in

order

to

establish the severity of Plaintiff’s condition. (Doc. 13 at
2).

After careful review of the record, the Court finds that

the ALJ’s decision is supported by substantial evidence, that
the record contains sufficient evidence upon which the ALJ was
able to decide this case, and that the decision to forgo a
18

consultative

physical

examination

was

not

error

under

the

circumstances of this case.
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 of 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

whether or not the claimant is represented by counsel. Brown v.
Shalala, 44 F.3d 931, 934 (11th Cir. 1995).
The responsibility for determining a plaintiff’s RFC 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, 2009 WL 2899048, *6
(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

19

observations, and medical source statements.”) (citing

SSR 96-

8p, 1996 SSR LEXIS 5).
The Regulations provide:
We may purchase a consultative examination to try
to resolve an inconsistency in the evidence, or
when the evidence as a whole is insufficient to
allow us to make a determination or decision on
your claim. Some examples of when we might purchase
a consultative examination to secure needed medical
evidence, such as clinical findings, laboratory
tests, a diagnosis, or prognosis, include but are
not limited to:
(1)
The additional evidence needed is not
contained in the records of your medical
sources;
(2)
The evidence that may have been
available from your treating or other medical
sources cannot be obtained for reasons beyond
your control, such as death or noncooperation of
a medical source;
(3) Highly technical or specialized medical
evidence that we need is not available from your
treating or other medical sources; or
(4)
There is an indication of a change in
your condition that is likely to affect your
ability to work, but the current severity of
your impairment is not established.
20 CFR 404.1519a(b)(1)-(5) (2010).
In fulfilling the duty to conduct a full and fair inquiry,
the ALJ has the discretion to order a consultative examination
where the record establishes that such is necessary to enable
the ALJ to render a decision. Holladay v. Bowen, 848 F.2d 1206,
1210 (11th Cir. 1988).

However, the ALJ is not required to

20

order an additional consultative examination where the record
contains

sufficient

evidence

to

permit

the

ALJ’s

RFC

determination. Good v. Astrue, 240 Fed. App’x 399, 404 (11th
Cir. 2007) (unpublished) (“the ALJ need not order an additional
consultative examination where the record was sufficient for a
decision.”);

see

also

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.”).
Having reviewed the record in its entirety, the Court finds
that the ALJ fulfilled his duty to develop a full and fair
record.

The record before the ALJ contains the medical records

from Plaintiff’s orthopedic surgeons, Drs. Fontana and West, her
chiropractor, her physical therapist, and additional doctors and
nurses who treated Plaintiff for her back problems and other
ailments,

the

consultative

Sullivan,

and

hearing.

Although Dr. Sullivan did not examine Plaintiff, he

Plaintiff’s

functional
testimony

at

assessment
the

by

Dr.

administrative

had the benefit of records from her orthopedic surgeons, her
chiropractor,

her

physical

therapist,

and

her

other

treating

doctors in preparing Plaintiff’s functional physical assessment.

21

Upon a review of the medical evidence in this case, and
Plaintiff’s

testimony,

the

ALJ

determined

that

Plaintiff

is

capable of less than the full range of light work, with an added
sit/stand

option

that

would

not

require

her

to

leave

the

workstation, as well as other limitations as set forth supra.
(Tr. 35).

In determining Plaintiff’s RFC, the ALJ provided a

thorough analysis of Plaintiff’s medical history, including her
treatment under both Drs. Fontana and West.
sufficient

to

enable

the

ALJ

to

This evidence was

determine

Plaintiff’s

RFC.

Indeed, there is nothing in the treatment notes of Plaintiff’s
treating physicians that indicates that Plaintiff’s limitations
exceed those in the RFC or that Plaintiff is unable to work.
fact,

Plaintiff’s

treating

physician

who

performed

her

In
back

surgery, Dr. West, determined, nine weeks after her surgery,
that Plaintiff was capable of significantly more strenuous work
than the ALJ’s determination of her RFC. (Id. at 241).
Dr. West opined that Plaintiff is able to perform
duty”

with

no

heavy

lifting,

bending,

or

Indeed,

“light/medium

twisting.

(Id.).

Additionally, the record contains the results of a number of
MRIs and X-rays, none of which demonstrate the existence of any
significant problems after Plaintiff’s back surgery in 2009.

In

fact, X-rays of Plaintiff’s back on January 27, 2010 show no
abnormalities at all. (Id. at 270-71).

22

Based

on

the

evidence

of

record,

the

Court

rejects

Plaintiff’s contention that the ALJ was required to obtain a
consultative

examination

to

determine

impairments because the ALJ clearly

the

severity

of

her

found that there was no

change in Plaintiff’s condition that was likely to affect her
ability

to

work,

and

substantial evidence.

this

determination

was

supported

by

Three weeks after Plaintiff’s surgery,

Dr. West noted that Plaintiff had “decreased symptoms” and was
“doing well” and “tolerating her daily routine”. (Id. at 235).
Six weeks after her surgery he noted “[m]arked improvement of
her radicular symptoms” with “some residual anticipated lumbar
complaints”

and

weeks”. (Id.)

told

her

to

“hold

off

from

work

for

[two]

Nine weeks after her surgery, he noted that she

was “doing reasonably well regarding her lumbar spine” and after
a complete physical assessment, he released her to return to
work at light/medium duty with no heavy lifting, bending, or
twisting. (Id. at 241).
change

in

her

While Plaintiff claims that there was a

condition

that

required

a

consultative

examination, this contention is belied by the record because
over a year after her surgery, in January of 2010, x-rays taken
at Mobile Infirmary revealed that her back was completely normal
and she was instructed to rest for only two days, then return to
work. (Id. at 269).
In addition, Plaintiff acknowledges that she is able to

23

drive her children to school, shop at the grocery store, perform
light housework, watch television, sit outside, prepare “simple”
meals, and attend social events, sporting events, and church
services.

(Id.

at

64,

167,

169,

170).

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.

V.

Conclusion
For

the

reasons

set

forth

herein,

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 26th day of March, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

24

and