Tarvin v. Astrue
Filing
25
MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 6/17/2014. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ARTHUR LUZELL TARVIN,
Plaintiff,
vs.
:
:
:
CA 13-0033-C
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND ORDER
The Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security
denying his claims for disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). The parties have consented to the exercise of jurisdiction by the
Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Doc.
22 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the
parties in this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, . . . order the entry of a final judgment, and conduct all postjudgment proceedings.”); see also Doc. 24 (order of reference).) Upon consideration of
the administrative record (“R.”) (doc. 13), the Plaintiff’s brief (doc. 14), the
Commissioner’s brief (doc. 16), and the arguments presented at the November 21, 2013
hearing, it is determined that the Commissioner’s decision denying benefits should be
affirmed.1
1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See doc. 22 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
I.
Procedural Background
On or around September 21, 2010, the Plaintiff filed an application for DIB and
SSI (R. 122-130), alleging disability relating to a left knee injury that occurred on January
30, 2009, and required a left total knee replacement (see R. 62-63, 122, 126).
His
application was initially denied on February 3, 2011 (R. 64-66). A hearing was then
conducted before an Administrative Law Judge on March 23, 2012. (R. 35-61). On May
16, 2012, the ALJ issued a decision finding that the claimant was not disabled (R. 20-31),
and, on October 24, 2012, the Plaintiff sought review from the Appeals Council (R. 1213). On December 20, 2012, the Appeals Council issued a decision declining to review
the ALJ’s decision. (R. 1-3.) Therefore, the ALJ’s determination was the Commissioner’s
final decision for purposes of judicial review. See 20 C.F.R. § 404.981. The Plaintiff filed
a Complaint in this Court on January 24, 2013. (Doc. 1.)
II.
Standard of Review and Claims on Appeal
In all Social Security cases, the plaintiff bears the burden of proving that he or
she is unable to perform his or her previous work. Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986). In evaluating whether the plaintiff 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
plaintiff’s age, education, and work history. Id. Once the plaintiff meets this burden, as
here, it becomes the Commissioner’s burden to prove that the plaintiff is capable—
given his or her age, education, and work history—of engaging in another kind of
substantial gainful employment that exists in the national economy. Sryock v. Heckler,
764 F.2d 834, 836 (11th Cir. 1985).
this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”).)
2
The task for this Court is to determine whether the ALJ’s decision to deny
Plaintiff benefits, on the basis that he can perform those light jobs identified by the
vocational expert at the administrative hearing, is supported by substantial evidence.
Substantial evidence is defined as more than a scintilla, and means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). “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). Courts are precluded, however, from “deciding the
facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed. App’x 995, 996
(11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir. 2005)). And, “[e]ven if the evidence preponderates against the Commissioner’s
findings, [a court] must affirm if the decision reached is supported by substantial
evidence.” Id. (citing Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158-59
(11th Cir. 2004)).
On appeal to this Court, the Plaintiff asserts two claims:
1.
The Commissioner’s decision should be reversed because the ALJ did not
state with any particularity the reasons for his rejection of the opinion of
the consultative examiner, Dr. Huey Kidd; and
2.
The Commissioner’s decision should be reversed because the ALJ failed to
further develop the record with regards to a perceived ambiguity in Dr.
Kidd’s report.
(Doc. 14 at 5.) For the reasons discussed below, because the Court finds that the ALJ
did not err with regard to his determination regarding Dr. Kidd’s opinion, the
Commissioner’s decision denying the Plaintiff benefits should be affirmed.
3
III.
Relevant Medical Evidence
Following the Plaintiff’s work injury on January 30, 2009, the Plaintiff was
treated by Dr. Christopher Patton. (R. 216.) The Plaintiff reported to Dr. Patton that he
twisted his knee at work when he fell off some steps. (Id.) Dr. Patton ordered an MRI of
the Plaintiff’s left knee, which showed a torn meniscus; partial tears of the anterior
cruciate ligament, posterior cruciate ligament and medial collateral ligament; and the
presence of a 1.2 cm bony fragment. (R. 217-19.) Dr. Patton recommended arthroscopic
knee surgery to debride the meniscus tear. (R. 219.) On March 12, 2009, Dr. Patton
performed arthroscopic surgery of the left knee, in which he debrided the tears of the
medial and lateral meniscus and removed the loose body in the knee. (R. 221-22.) Dr.
Patton’s post-operative diagnoses were: medial meniscus tear; small lateral meniscus
tear; loose body in the left knee; and osteoarthritis in the medial compartment of the left
knee. (R. 221-23.) Dr. Patton recommended that the Plaintiff wear a knee brace, visit
physical therapy to obtain a home exercise program, and return for a follow-up visit in
six weeks. (R. 223.) Additionally, Dr. Patton prescribed pain mediation for the Plaintiff
and recommended work restrictions of “no squatting, no crawling, no more than four
steps on a ladder, and no lifting greater than 30 pounds.” (Id.) The Plaintiff returned to
see Dr. Patton for multiple post-operative visits (see R. 223-26, 233-35); he continued to
complain of persistent knee pain without significant improvement (see id.). On August
31, 2009, Dr. Patton concluded that the Plaintiff may benefit from knee replacement
surgery. (R. 235.) Dr. Patton referred the Plaintiff to Dr. Michael Granberry for an
evaluation for total knee replacement surgery. (Id.)
On September 30, 2009, the Plaintiff visited Dr. Granberry. (R. 236.) Dr.
Granberry performed a physical examination, reviewed the Plaintiff’s x-rays and
concluded that the Plaintiff had post traumatic arthritis of the left knee; medial and
4
lateral meniscus tears of the left knee; and a left knee strain. (Id.) Dr. Granberry
recommended total left knee replacement surgery. (Id.) The knee replacement surgery
was performed, without complications, by Dr. Granberry on December 14, 2009. (R. 23942.) The Plaintiff returned to see Dr. Granberry for a post-operative visit on February 17,
2010. (R. 244.) X-rays indicated that “the knee replacement [was] in good position with
no evidence of wear, loosening or complication.” (Id.) Dr. Granberry’s impression was
“post traumatic arthritis, left knee” and “status post left total knee replacement.” (Id.)
The Plaintiff had been going to physical therapy and Dr. Granberry ordered that he
continue with his physical therapy plan. (Id.) The Plaintiff complained of pain and
tightness in his knee, but Dr. Granberry “reassured him that his knee [was] actually
doing quite well.” (Id.) Dr. Granberry advised the Plaintiff that he “need[ed] to work a
little more on extension and not sit quite so much.” (Id.) On April 29, 2010, Dr.
Granberry saw the Plaintiff again and noted that the Plaintiff reported he had
experienced “decreased pain and still ha[d] some tender spots and some stiffness but in
general [was] doing relatively well.” (R. 248.) Dr. Granberry concluded that the Plaintiff
had reached maximum medical improvement and that he had an “impairment rating of
25 percent of the lower extremity for a well functioning total knee replacement.” (Id.)
Dr. Granberry found Plaintiff’s “permanent restrictions [were] 50 pounds lifting, no
crawling, squatting, kneeling, or climbing.” (Id.) Dr. Granberry prescribed Lidoderm
patches for the Plaintiff’s pain. (See id.)
On December 6, 2010, Dr. Huey Kidd, a family practice physician, performed a
consultative examination of the Plaintiff. (R. 269-70.) Dr. Kidd made the following
pertinent findings after conducting a physical examination:
He has full range of motion and 5/5 strength of the upper extremity. He is
only able to bend his knee about 15 degrees past the neutral of 90. The
right leg moves normally. . . . He is unable to heel walk, unable to toe walk,
5
unable to bend and touch his toes. He did try to squat, he was only able to
squat about 15 to 20 degrees. He ambulates with a severe atalgic gait using
a cane and using it appropriately.
(R. 270.) Dr. Kidd also reviewed x-ray imaging of the Plaintiff’s lumbar spine and noted
that the images “reveal[ed] straightening of the lumbar lordosis and some minimal
degenerative disc disease at L4-L5. The straightening could be due to osteoarthritis.”
(Id.) Dr. Kidd’s impression was “[o]steoarthritis of the knees with total left knee
replacement and back pain which is radicular in nature.” (Id.) Dr. Kidd further
commented that he “believe[d] it would be very difficult for [the Plaintiff] to work.”
(Id.)
On January 13, 2011, one year following his knee replacement surgery, the
Plaintiff again saw his orthopedic surgeon, Dr. Granberry, and complained of left knee
pain. (R. 271.) The Plaintiff was “not taking any pain medication” and was “occasionally
doing his exercises.” (Id.) Dr. Granberry performed a physical examination, which
“show[ed] a benign knee with a well healed wound. No swelling, deformity, [or]
redness . . . [.] His tenderness [was] predominantly in his calf musculature about
midway down[.] Range of motion [was] 0 to 115 degrees. [There was] [n]o instability.”
(Id.) X-rays of the left knee “show[ed] the knee prosthesis in good position with no
evidence of wear, loosening or complication.” (Id.) Dr. Granberry’s impression
remained “[s]tatus post left total knee replacement” and “[p]ost traumatic arthritis of
the left knee.” (Id.) Dr. Granberry concluded that the Plaintiff was still “at maximum
medical improvement with a 25 percent impairment rating of the lower extremity,
which corresponds with a good result.” (Id.) He noted that the Plaintiff had a lifting
limit of 40 pounds, and he prescribed Arthrotec for the Plaintiff’s knee pain. (Id.)
On February 2, 2011, Dr. Eugene T. Saiter completed a physical residual
functional capacity assessment of the Plaintiff. (R. 273-80.) Dr. Saiter’s primary
6
diagnosis was status post left total knee replacement. (R. 273.) Dr. Saiter found that the
Plaintiff could occasionally lift and/or carry twenty pounds; frequently lift and/or
carry ten pounds; stand and/or walk, with normal breaks, for a total of about six hours
in an eight-hour workday; sit, with normal breaks, for a total of about six hours in an
eight-hour workday; and push and/or pull for an unlimited period of time provided
that he did not exceed the amount of weight limits given above. (R. 274.) Dr. Saiter
found that his conclusions were supported by Dr. Granberry’s January 13, 2011 report,
and Dr. Kidd’s December 6, 2010 report. (R. 274-75.) Dr. Saiter further found that,
occasionally, the Plaintiff could balance, stoop, crouch and climb ramps and stairs. (R.
275.) Dr. Saiter concluded that the Plaintiff could never kneel, crawl or climb ladders,
ropes or scaffolds. (Id.) Dr. Saiter also noted that the Plaintiff should avoid concentrated
exposure to work hazards such as machinery and heights, but that there need not be
any limitation on the Plaintiff’s exposure to other environmental factors such as extreme
cold, extreme heat, wetness, humidity, noise, vibration and fumes. (R. 277.)
IV.
ALJ’s Decision
On May 16, 2012, the ALJ issued a decision finding that the Plaintiff is not
disabled. (R. 20-31.) In reaching his decision, the ALJ found that the Plaintiff has not
engaged in substantial gainful activity since the alleged onset date of January 30, 2009.
(R. 22.)
he ALJ found that the Plaintiff “has the following severe impairments:
osteoarthritis of both knees, status post knee replacement of the left knee, lumbar
degenerative disc disease, hypertension, and borderline intellectual functioning.” (Id.
(emphasis in original).) The ALJ concluded that the Plaintiff did not meet or medically
equal one of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. (R. 23.)
The ALJ made the following findings with respect to the Plaintiff’s residual functional
capacity:
7
[T]he claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except the
claimant is able to lift and carry 20 pounds occasionally and 10 pounds
frequently; stand/walk for two hours total in an eight-hour workday; sit
for six hours total in an eight-hour workday; never climb, kneel, crouch,
or crawl; occasionally balance; never use foot controls; occasionally
tolerate exposure to dangerous heights or dangerous machinery;
frequently understand, remember, and carry out short and simple
instructions; occasionally understand, remember, and carry out detailed
instructions; occasionally interact with the general public and
supervisors; to perform work that required only occasional changes in
the work setting and work that required him to occasionally set
independent goals.
(R. 25 (emphasis in original).) In light of his RFC determination, the ALJ concluded that
the Plaintiff “is unable to perform any past relevant work,” (R. 29 (emphasis in
original)), but that “there are jobs that exist in significant numbers in the national
economy that the claimant can perform,” (id. (emphasis in original)).
In reaching his determination regarding the Plaintiff’s residual functional
capacity, the ALJ recounted all of the medical evidence of record. (See R. 26-29.) The ALJ
concluded that
[t]he medical evidence in this case clearly establishes that the claimant
suffered a serious injury that exacerbated his arthritis resulting in total
knee replacement surgery. There is also evidence of some minimal
degenerative disc disease on x-ray, but no mention of clinical signs such as
reduced range of motion in the lumbar spine, tenderness or spasms. The
undersigned has reduced the claimant’s residual functional capacity from
work at the heavy or very heavy exertion level to merely a reduced range
of work at the light exertion level. Specifically, reducing the claimant’s
ability to walk or stand to only two hours total will accommodate his
osteoarthritis of the knees and left knee replacement and his minimal
degenerative disc disease. These impairments are also accommodated [by]
reductions in climbing, kneeling, crouching, crawling, balancing, use of
foot controls, and exposure to dangerous heights and dangerous
machinery. This residual functional capacity also accommodates the
claimant’s hypertension. These reductions and the residual functional
capacity is supported by the post knee replacement opinions of Dr.
Granberry at Exhibits 4F and 9F, which is given significant weight, but the
undersigned acknowledges that Dr. Granberry did not consider the
claimant’s minimal degenerative disc disease. Therefore, additional
limitations in lifting and standing are included. The undersigned notes
that Dr. Granberry is a treating orthopedic specialist, and his opinion is
8
consistent with the objective medical evidence and with the record as a
whole. Significant weight is also given to the assessment of Eugene Saiter,
M.D., at Exhibit 10F. This medical opinion is consistent with the opinion of
the claimant’s treating physician. As for Dr. Kidd’s opinion that the
claimant would have “great difficulty working,” the undersigned notes
that the greatly reduced residual functional capacity reflects, in part, this
onetime assessment. The undersigned notes that Dr. Kidd did not specify
if he was referring to the claimant’s past work or even what elements of
work activity would be difficult. Many, many jobs have been eliminated
by the residual functional capacity. The determination of whether ALL
jobs would be eliminated by the claimant’s limitations is an issue reserved
for the Commissioner.
...
In sum, the above residual functional capacity assessment is supported by
the objective medical evidence; the claimant’s treatment records; the
claimant’s testimony that his pain is best relieved with over-the-counter
medication; the claimant’s lack of medical treatment for hypertension,
right leg pain, and back pain; the opinions of Dr. Saiter, Dr. Kidd, Joanna
Koulianos, Ph.D., and Dr. Granberry, which included a mere 25%
impairment rating; and the claimant’s activities of daily living.
(R. 27-28 & 29.)
V.
Analysis
a. The ALJ’s Evaluation of Dr. Kidd’s Examination Report and Opinion.
Plaintiff’s initial claim is that the Commissioner’s decision should be reversed
because the ALJ failed to state with any particularity the reasons for his obvious
rejection of the opinion of the consultative examiner, Dr. Huey Kidd. (Doc. 14, at 5.)
There can be no question that “[i]n assessing medical evidence, the ALJ must ‘state with
particularity the weight he gave the different medical opinions and the reasons
therefor.’” Gray v. Commissioner of Social Security, 550 Fed.Appx. 850, 854 (11th Cir. Dec.
30, 2013), quoting Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987).2 The Eleventh
Circuit has “recognized, however, that the ALJ may implicitly make [such] a
2
“Absent such a statement, a reviewing court cannot determine whether the
ultimate decision is supported by substantial evidence.” Shaw v. Astrue, 392 Fed.Appx. 684, 686
(11th Cir. Aug. 12, 2010), citing Hudson v. Heckler, 755 F.2d 781, 786 (11th Cir. 1985) (per curiam).
9
determination.” Kemp v. Astrue, 308 Fed.Appx. 423, 426 (11th Cir. Jan. 26, 2009), citing
Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986). And, of course, it is important to
note that the amount of weight to be accorded a particular opinion depends upon the
status of the physician. For instance, “the opinions of examining physicians are given
more weight tha[n] non-examining physicians and the opinions of treating physicians
are given more weight than non-treating physicians.” Snyder v. Commissioner of Social
Security, 330 Fed.Appx. 843, 846 (11th Cir. May 29, 2009), citing 20 C.F.R. §
404.1527(d)(1)-(2); see also Wilcox v. Commissioner, Social Security Administration, 442
Fed.Appx. 438, 439-440 (11th Cir. Sept. 21, 2011) (“Generally, the opinions of examining
or treating physicians are given more weight than non-examining or non-treating
physicians[.]”); cf. Diamond v. Colvin, 2013 WL 6231261, *8 (M.D. Fla. Dec. 2, 2013) (“The
weight an ALJ must give different medical opinions varies according to the relationship
between the medical professional and the claimant.”). Moreover, as is relevant here, the
opinion of a one-time examining physician, like Dr. Kidd, is “’not entitled to great
weight.’” Rodriquez v. Colvin, 2013 WL 4495173, *4 (M.D. Fla. Aug. 20, 2013), quoting
Crawford v. Commissioner of Social Security , 363 F.3d 1155, 1160 (11th Cir. 2004).
On December 6, 2010, plaintiff was consultatively examined by Dr. Kidd. (Tr.
269-270.) Dr. Kidd specifically offered the opinion that he believed Tarvin would have
great difficulty working. (See id. at 270 (“I do believe it would be very difficult for this
gentleman to work.”).) According to plaintiff, the ALJ obviously rejected this opinion
but failed to state the reasons for such rejection. (Doc. 14, at 6-8.)
A review of the administrative decision reveals that Dr. Kidd’s consultative
examination was prominently considered by the ALJ in reaching his RFC
determination. Indeed, Dr. Kidd appears to have been the only examining physician
who diagnosed a back impairment and the ALJ considered plaintiff’s degenerative disc
10
disease (as well as Kidd’s diagnosis of osteoarthritis of the knees) in reaching his RFC
determination. (See
Tr. 27-28 & 29; compare id. with Tr. 25.) In addition, the ALJ
specifically mentioned Dr. Kidd’s opinion that Tarvin would have difficulty working
but noted that “the greatly reduced” RFC determination reflected in his decision
“reflects, in part, this one[-]time assessment.” (Tr. 28.) The ALJ also noted that Dr.
Kidd’s opinion did not make clear that it was directed to all work, as opposed to
plaintiff’s past work, or, otherwise, what elements of work activity would be difficult
for plaintiff to perform. (Id.) And, finally, the ALJ importantly observed that “[t]he
determination of whether ALL jobs would be eliminated by the claimant’s limitations is
an issue reserved for the Commissioner.” (Id.)
Based upon the foregoing, the undersigned finds implicit in the ALJ’s decision
that he accorded “little” weight to Dr. Kidd’s opinion to the extent Dr. Kidd meant to
suggest that plaintiff could perform no work whatsoever since such a determination is
reserved solely to the Commissioner in the regulations (see id.). See 20 C.F.R. §
404.1527(d)(1) (“Opinions on some issues, such as the examples that follow, are not
medical opinions, as described in paragraph (a)(2) of this section, but are, instead,
opinions on issues reserved to the Commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability. . . . We are responsible for making the determination or decision
about whether you meet the statutory definition of disability. In so doing, we review all
of the medical findings and other evidence that support a medical source’s statement
that you are disabled. A statement by a medical source that you are ‘disabled’ or
‘unable to work’ does not mean that we will determine that you are disabled.”). Since
the ALJ had no obligation to give special weight to Dr. Kidd’s “belief” that plaintiff
11
could not work, the Court perceives no error by the ALJ in failing to give additional
reasons for his implicit rejection of Dr. Kidd’s opinion.
Even assuming the ALJ erred in failing to specify the reasons he gave little to no
weight to the opinion of Dr. Kidd, such error was harmless since substantial evidence in
the record supports the ALJ’s ultimate determination regarding the Plaintiff’s residual
functional capacity, and Dr. Kidd’s examination report and opinion do not directly
contradict that RFC determination. Compare Caldwell v. Barnhart, 261 Fed.Appx. 188, 191
(11th Cir. Jan. 7, 2008) (holding ALJ’s failure to assign weight to examining physician’s
opinion was harmless because the opinion did not contradict the ALJ’s findings) with
Rodriquez, supra, at *5 (“Any error of the ALJ in assuming that Dr. Shefsky believed that
Plaintiff had no limitations does not warrant remand, as substantial evidence otherwise
supports the ALJ’s decision.”); see Swilling ex rel. L.G.M.W. v. Astrue, 2011 WL 2982522,
*3 (M.D. Ala. Jul. 22, 2011) (“Even though[] the ALJ did not specifically state he
considered the teacher’s questionnaire, his general comment about opinion evidence is
sufficient to show that he did consider all the evidence. Moreover, even if it was error, it
is harmless. The opinion of the ALJ shows that he carefully considered the evidence in
this case and was extremely familiar with it. A remand is not required.”).
b. The ALJ did not err by failing to further develop the record with respect
to the perceived ambiguity in Dr. Kidd’s opinion.
Plaintiff additionally contends that, at the very least, the ALJ should have recontacted Dr. Kidd to find out what the consultative physician meant when he opined
that plaintiff would have great difficulty working, particularly given the ALJ’s
statement that Kidd “did not specify if he was referring to the claimant’s past work or
even what elements of work activity would be difficult[]” (Tr. 28). (See Doc. 14, at 8-9.)
The Commissioner’s regulations require an ALJ “to recontact a physician when there is
12
not enough evidence in the record to make a decision.” Gardner v. Colvin, 2013 WL
3873990, *4 (N.D. Ala. Jul. 25, 2013), citing 20 C.F.R. § 404.1520b(c)([1]). “However, if the
ALJ can make a decision based upon the evidence, he is not under an obligation to
recontact the [] physician.” Id.
In this case, the ALJ specifically considered Dr. Kidd’s diagnoses of lumbar
degenerative disc disease and osteoarthritis of both knees (see Tr. 270), along with the
numerous objective findings and specific limitations attributed to plaintiff’s knee
condition by treating orthopedists Drs. Michael Granberry and W. Christopher Patton
(see, e.g., Tr. 216, 219-226, 233-236, 238, 240, 242, 244-245, 247-248 & 271), and the PCE
completed by non-examiner Dr. Eugene T. Saiter (Tr. 273-279), in reaching his RFC
determination (see Tr. 25, 27-28 & 29). In particular, Dr. Granberry examined Tarvin five
weeks after plaintiff was examined by Dr. Kidd (see Tr. 271 (“Physical exam today
[January 13, 2011] shows a benign knee with a well healed wound. No swelling,
deformity, [or] redness . . . . His tenderness is predominately in his calf musculature
about midway down. Range of motion is 0 to 115 degrees. No instability.”)), and
despite noting that Dr. Granberry “continued” plaintiff “with a 40-pound lifting limit”
and “maximum medical improvement with a 25 percent impairment rating of the lower
extremity, which corresponds with a good result[,]” (id.), the ALJ specifically
determined that plaintiff’s lifting and carrying ability was more limited than indicated
by Dr. Granberry (compare Tr. 25 with Tr. 271) and his ability to stand and walk more
limited than suggested by Dr. Saiter (compare Tr. 25 with Tr. 274) in order to account for
Dr. Kidd’s diagnoses of lumbar degenerative disc disease and osteoarthritis of both
knees (Tr. 27-28). Inasmuch as the foregoing evidence (see Tr. 216, 219-226, 233-236, 238,
240, 242, 244-245, 247-248, 269-270, 271 & 273-279) provides substantial support for the
ALJ’s RFC determination and his decision that plaintiff was not disabled, there was no
13
need for the ALJ to obtain additional information or clarification from Dr. Kidd. See
Couch v. Astrue, 267 Fed.Appx. 853, 855-856 (11th Cir. Feb. 29, 2008) (finding no duty to
recontact existed where substantial evidence supported the ALJ’s decision that the
claimant was not disabled); Osborn v. Barnhart, 194 Fed.Appx. 654, 668-669 (11th Cir.
Aug. 24, 2006) (same). This is particularly true where, as here, Dr. Kidd’s opinion that
plaintiff would have great difficulty working is—as alluded to earlier—an opinion on
an issue reserved by the regulations to the Commissioner. See Gardner, supra, at *4
(“Opinions such as whether a claimant is disabled, the claimant’s residual functional
capacity, and the application of vocational factors ‘are not medical opinions, . . . but are,
instead, opinions on issues reserved to the Commissioner because they are
administrative findings that are dispositive of a case; i.e., that would direct the
determination or decision of disability.’ 20 C.F.R. §[] 404.1527([d]) []. . . . The questions
of Ms. Garner’s RFC and whether she is able to work are ultimately questions for the
ALJ. The ALJ has no obligation to give special weight to Dr. Poczarek’s opinion that
Plaintiff is not able to work. This sort of opinion concerns Plaintiff’s disability status, the
type of decision that is ultimately reserved for the ALJ.”).
Because plaintiff makes no other arguments, the Court finds that the
Commissioner’s fifth-step determination denying benefits is due to be affirmed. See, e.g.,
Owens v. Commissioner of Social Security, 508 Fed.Appx. 881, 883 (11th Cir. Jan. 28, 2013)
(“The final step asks whether there are significant numbers of jobs in the national
economy that the claimant can perform, given h[er] RFC, age, education, and work
experience. The Commissioner bears the burden at step five to show the existence of
such jobs . . . [and one] avenue[] by which the ALJ may determine [that] a claimant has
the ability to adjust to other work in the national economy . . . [is] by the use of a
VE[.]”(internal citations omitted)); Land v. Commissioner of Social Security, 494 Fed.Appx.
14
47, 50 (11th Cir. Oct. 26, 2012) (“At step five . . . ‘the burden shifts to the Commissioner
to show the existence of other jobs in the national economy which, given the claimant’s
impairments, the claimant can perform.’ The ALJ may rely solely on the testimony of a
VE to meet this burden.” (internal citations omitted)).
CONCLUSION
In light of the foregoing, it is ORDERED that the decision of the Commissioner
of Social Security denying plaintiff benefits be affirmed.
DONE and ORDERED this the 17th day of June, 2014.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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