Dailey v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 4/18/2016. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CURTIS L. DAILEY,
Plaintiff,
vs.

:
:
:

CA 15-0166-C

CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security denying his claim for a period
of disability and disability insurance benefits. 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. 21 (“In accordance with 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 post-judgment proceedings.”); see also Doc. 22 (endorsed
order of reference).) Upon consideration of the administrative record, plaintiff’s brief,
the Commissioner’s brief, and the arguments of counsel at the March 30, 2016 hearing
before the Court, 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. 21 (“An appeal from a judgment
entered by a magistrate judge shall be taken directly to the United States court of appeals for

(Continued)

Plaintiff alleges disability due to degenerative disc disease, hypertension, chronic
bronchitis, gastroesophageal reflux disease, substance abuse, and Hepatitis C. The
Administrative Law Judge (ALJ) made the following relevant findings:
1.
The claimant meets the insured status requirements of the Social
Security Act through September 30, 2017.
2.
The claimant has not engaged in substantial gainful activity since
March 19, 2012, the alleged onset date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe impairments: degenerative
disc disease, hypertension, chronic bronchitis, gastroesophageal reflux
disease (GERD), substance abuse, and hepatitis C (20 CFR § 404.1520(c)).
.

.

.

4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
.

.

.

5.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except the claimant would need to
alternate among sitting, standing, and walking every thirty minutes to
one hour but would not need to leave the workstation. The claimant can
occasionally use foot controls, climb stairs and ramps, stoop, kneel,
crouch, or crawl. The claimant can never climb ladders, scaffolds, or
ropes, work at unprotected heights, or work around dangerous
equipment. The claimant can occasionally work at temperature
extremes; in humidity or wetness; or with dust, chemicals, and fumes.
The claimant can occasionally communicate orally.
In making this finding, I have considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the requirements
of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. I have also considered

this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”))

2

opinion evidence in accordance with the requirements of 20 CFR 404.1527
and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
.

.

.

In terms of the claimant’s combination of physical impairments, his
alleged limitations are not supported by the evidence. Although the
claimant has a significant history of alcohol abuse, the claimant denied
abusing alcohol or having any problems with drugs or alcohol. He
testified that he uses alcohol only occasionally. Still, this impairment, in
combination with his GERD, and hepatitis would exacerbate his physical
complaints. He did have an instance of treatment for gastritis, hepatitis,
and thrombocytopenia in the current year. However, the brevity of this
treatment and the absence of any significant recurrence clarifies that the
symptoms that cause him to seek treatment are not ongoing. Still, this
combination of impairments has been the source of some, limited
treatment.
However, the most recent treatment notes indicate no evidence of these
complaints. He only refilled his medications and confirmed that he was
limiting his alcohol intake. Despite a diagnosis of COPD, he had no
evidence of wheezing, and his lungs were clear. Even prior to this most
recent examination, the treatment notes confirm that his lungs were clear
to auscultation bilaterally during all the treatment over nearly the entire
previous two years. There was only a single notation in May 2012 that he
even had occasional rhonchi evident on the examination of his lungs. An
x-ray showed no evidence of acute chest pathology even when he went to
the emergency room with complaints of chest pain in March of 2012 or
March 2013. Even a July 2011 x-ray of the chest was normal and had been
compared to an x-ray from 2008 that were all normal. Furthermore, the
treatment notes confirm that his blood pressure was stable when on his
current medications, and the claimant’s instances of significantly elevated
blood pressure were repeatedly occurring when he noted that he had run
out of his medications only. Although the claimant has complained of
chest pain, he was prescribed pain medications when these reports were
made at the emergency room. Nitroglycerine did not relieve his pain
when taken. Ultimately, the only indication of these complaints during
treatment was his follow-up for hypertension. Even when the claimant
complained of epigastric pain as well as substernal chest pain at the
emergency room in March 2013, his complaints were described as both
non-cardiac and his hypertension was “at goal.” The claimant had no
shortness of breath. [H]e even denied having a history of “PUD or
GERD”. Therefore, the restriction to light work only as well as the
restrictions involving workplace hazards would accommodate the
primary ongoing symptom of fatigue. Moreover, the residual effects of his
treatment, ongoing substance abuse, and even his complaints regarding
medication side effects would be accommodated by these limitations.
3

The claimant also testified that he has back and lower extremity pain. The
claimant alleged that he has difficulty getting out of bed due to back pain,
but he also acknowledged that he takes his children to school. He stated
that there is “no problem” with his ability to perform his own personal
care. He stated that he can even prepare simple meals, iron, and wash
clothes. He even confirmed that he can drive or use public transportation
alone. He stated that he shops for food and clothing once a month for two
to three hours at a time. The claimant reported that he can lift thirty to
fifty pounds. He stated that he can stand for four to five hours. He stated
that he can walk for a short period of time only, and he stated that he
could only sit for two hours “with pain.” However, he stated that he can
follow instructions well and finish things that he starts. The claimant even
confirmed that he can get along with authority figures well. The claimant
testified that he lives in an apartment with his two children. However, he
does use a cane due to his left knee.
The claimant did have evidence of mild disc bulge at L4-5 and a moderate
disc bulge at L5-S1 on an x-ray from December 2006; however, there was
no stenosis or evidence of change from a December 2001 x-ray.
Furthermore, even now, the claimant testified that his doctors have never
advised surgery.
A 2009 x-ray of the lumbar spine was described as negative. Nonetheless,
the treatment notes indicate that the claimant was prescribed Ibuprofen
and Soma for lower back pain at least since February 2008. However,
those medications were discontinued in lieu of Lortab 7.5 in April 2008.
However, that medication has remained unchanged. He was prescribed 60
capsules instead of the 45 per month initially provided. Likewise, in
November 2008, the claimant was provided intramuscular injections of
Toradol and Kenalog. These injections were repeated in October 2010,
October 2012, and as recently as May 2013. He was also prescribed Soma,
a muscle relaxer at the 2008 examination. Nonetheless, the claimant’s
testimony that he takes two Lortab per day is consistent with the
treatment notes because he was prescribed 60 pills and advised to return
after a two-month period as of July 2010. However, there was only one
refill. Moreover, the treatment notes show an extensive gap in treatment
between January 2009 and July 2010 when the treatment restarted.
Then, the claimant reported foot pain in November 2010. Then, the
treatment notes indicate that there was a cervical and lumbar strain due to
a motor vehicle accident later in November and December 2010. However,
after that point, it was again called only “LBP” (lower back pain).
Although advised to return in two months, he returned only twice[,] in
March and June 2011. He was even provided Celebrex once in March
2012. However, the treatment notes show that he was consistently
returning almost as infrequently as every three months since that point;
therefore, he was taking less medications or taking them less frequently.
Nonetheless, he reported that the injections did help, and there was no
indication of any increase in his medications that might suggested
4

untreated pain. His doctor even consistently confirmed that he was taking
the Lortab and Soma only on an as needed basis. There was no evidence
during these treatment notes of edema, ulcerations, or any other clinical
signs consistent with his reports of lower extremity complaints. He was
still described as being in no acute distress “NAD” generally and
unchanged “un[delta]” with regard to the musculoskeletal/back
symptoms even in May 2013.
Therefore, the claimant’s restrictions in standing, walking, sitting, lifting,
and carrying are accommodated by the residual functional capacity
limitations. He also testified that he needs to move about some while he is
working, but this would be accommodated by the alternation among
sitting, standing, and walking.
.

.

.

As for the opinion evidence, some weight is given to the opinion evidence
in Exhibit 7F. Although a non-examining physician, this physician has
considered the available evidence prior to the date of his letter. His
affirmation of the earlier state agency determination cannot be given
controlling weight; however, his opinion is consistent with the evidence.
As a result, it is given some weight.
Dr. Gayle’s form is not consistent with the objective findings included in
any of his treatment notes. The MRI in December 2006 and the
conservative treatment recommended consistently fail to support the level
of distraction indicated in Exhibit 6F. Despite the accommodations
included in the residual functional capacity consistent with this form, the
sitting/standing/walking limitations and the postural limitations, the
remainder of his opinion are not consistent with even the
recommendation for treatment. The opinions indicating requirements for
time off work are speculative, at best. He provides no support for these
limitations and they are inconsistent with the conservative treatment.
In sum, the above residual functional capacity assessment is supported by
the absence of any diagnostic testing consistent with the degree of the
claimant’s allegations, the clinical signs inconsistent with the claimant’s
complaints during treatment, the effectiveness of the claimant’s
medications indicated by the treatment notes, the activities of daily living
inconsistent with the claimant’s allegations, the inconsistency in the
dosage of the claimant’s medications, the conservative treatment
advised/obtained, [and] the medical opinion in Exhibit 7F.
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565).
.

.

.

5

7.
The claimant was born on September 14, 1963 and was 48 years
old, which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563).
8.
The claimant has a limited education and is able to communicate
in English (20 CFR 404.1564).
9.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569 and 404.1569(a)).
.

.

.

If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.18. However, the claimant’s ability to
perform all or substantially all of the requirements of this level of work
has been impeded by additional limitations. To determine the extent to
which these limitations erode the unskilled light occupational based, I
asked the vocational expert whether jobs exist in the national economy for
an individual with the claimant’s age, education, work experience, and
residual functional capacity. The vocational expert testified that given all
of these factors the individual would be able to perform the requirements
of representative occupations such as plastic molding machine operator,
DOT Code 556.685-022; courier, DOT Code 230.667-010; and parking
attendant, DOT Code 915.473-010. He testified that there are
approximately 890 jobs as a plastic molding machine operator; 1,200 jobs
as a courier[;] and 856 jobs as a parking attendant in the state of Alabama.
He testified that there are approximately 166,000 jobs as a plastic molding
machine operator; 124,300 jobs as a courier[;] and 65,000 jobs as a parking
attendant in the national economy.
Although the vocational expert’s testimony is inconsistent with the
information contained in the Dictionary of Occupational Titles, there is a
reasonable explanation for the discrepancy. The vocational expert clarified
that the Dictionary of Occupational Titles does not explicitly address the
sit/stand restrictions that are included in the residual functional capacity.
He testified that experience in job placement and labor market analyses
were the basis of his supplementation of the information in the Dictionary
of Occupational Titles.

6

Based on the testimony of the vocational expert, I conclude that,
considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant is capable of making a successful
adjustment to other work that exists in significant numbers in the national
economy. A finding of “not disabled” is therefore appropriate under the
framework of the above-cited rule.
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from March 19, 2012, through the date of this
decision (20 CFR 404.1520(g)).
(Tr. 22, 23, 24, 25-27, 27, 28, 28-29 & 29 (internal citations & footnote omitted; emphasis
in original).) The Appeals Council affirmed the ALJ’s decision (Tr. 1-3) and thus, the
hearing decision became the final decision of the Commissioner of Social Security.
DISCUSSION
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (1)
whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairments in the regulations; (4) if not, whether the claimant has the
RFC to perform her past relevant work; and (5) if not, whether, in light of
the claimant’s RFC, age, education and work experience, there are other
jobs the claimant can perform.
Watkins v. Commissioner of Social Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)2
(per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the
burden, at the fourth step, of proving that he is unable to perform his previous work.
Jones v. Bowen, 810 F.2d 1001 (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
2

“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.

7

of pain; and (4) the claimant’s age, education and work history. Id. at 1005. Although “a
claimant bears the burden of demonstrating an inability to return to his past relevant
work, the [Commissioner of Social Security] has an obligation to develop a full and fair
record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). If a
plaintiff proves that he cannot do his past relevant work, as here, it then becomes the
Commissioner’s burden—at the fifth step—to prove that the plaintiff is capable—given
his age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy. Phillips, supra, 357 F.3d at 1237;
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct.
1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that he can perform those light jobs
identified by the vocational expert, 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether substantial
evidence exists, we 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).3 Courts are precluded, however, from “deciding the facts
anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed. Appx. 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
3

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

8

court] must affirm if the decision reached is supported by substantial evidence.’” Id.
(quoting Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158-1159 (11th Cir.
2004)).
On appeal to this Court, Dailey asserts four reasons why the Commissioner’s
decision to deny him benefits is in error (i.e., not supported by substantial evidence): (1)
the ALJ erred in failing to assign controlling weight to the opinions of the treating
physician, Dr. Benjamin Gayle; (2) the ALJ erred in failing to seek clarification from Dr.
Gayle after finding that the treating physician’s opinion was inadequate to assign
controlling weight; (3) the ALJ erred in fulfilling her duty to develop the record by
ordering a consultative orthopedic examination; and (4) the ALJ erred in substituting
the opinion of a non-examining, reviewing State-agency physician for the opinion of
plaintiff’s treating physician in violation of Coleman v.. Barnhart and SSR 96-6p. The
Court will address each issue in turn.
A.

Opinions of Plaintiff’s Treating Physician, Dr. Benjamin Gayle. On

September 7, 2012, Dr. Gayle completed a symptoms assessment form4 and thereon
indicated that he had treated plaintiff for 4 years for lumbar degenerative disc disease,
hypertension, and esophageal reflux. (Tr. 368.) Gayle identified the symptoms plaintiff
experiences as chronic lower back pain and spasms (id.), thus clearly limiting the focus
of the remainder of the form to Dailey’s lumbar degenerative disc disease (see id.). Gayle
indicated that physical activity—such as walking, standing, bending, lifting, etc.—
would greatly increase plaintiff’s symptoms so as to cause distraction from or total
4

Plaintiff’s attorneys, Gardberg & Clausen, P.C., supplied this form to Gayle. (See

Tr. 368.)

9

abandonment of task. (Id.) Gayle also opined on this form that plaintiff could not
engage in any form of gainful employment on a repetitive, competitive and productive
basis over an eight-hour workday, forty hours a week, without missing more than 2
days of work per month and offered, in support of this opinion, the following: “As
mentioned above, prolonged sitting, standing and any repetitive bending or stooping
will aggravate his condition and lead to acute flares, requiring time off.” (Id.)
The law in this Circuit is clear that an ALJ “’must specify what weight is given to
a treating physician’s opinion and any reason for giving it no weight, and failure to do
so is reversible error.’” Nyberg v. Commissioner of Social Security, 179 Fed.Appx. 589, 590591 (11th Cir. May 2, 2006) (unpublished), quoting MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (other citations omitted). In other words, “the ALJ must give the
opinion of the treating physician ‘substantial or considerable weight unless “good
cause” is shown to the contrary.’” Williams v. Astrue, 2014 WL 185258, *6 (N.D. Ala. Jan.
15, 2014), quoting Phillips, supra, 357 F.3d at 1240 (other citation omitted); see Nyberg,
supra, 179 Fed.Appx. at 591 (citing to same language from Crawford v. Commissioner of
Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)).
Good cause is shown when the: “(1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004). Where the ALJ articulate[s] specific reasons for failing to
give the opinion of a treating physician controlling weight, and those
reasons are supported by substantial evidence, there is no reversible error.
Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert v. Commissioner of Social Sec., 396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010)
(per curiam).
In this case, the ALJ accorded little, if any weight, to the opinions set forth on the
form Dr. Gayle completed. (Tr. 27.)
10

Dr. Gayle’s form is not consistent with the objective findings included in
any of his treatment notes. The MRI in December 2006 and the
conservative treatment recommended consistently fail to support the level
of distraction indicated in Exhibit 6F. Despite the accommodations
included in the residual functional capacity consistent with this form, the
sitting/standing/walking limitations and the postural limitations, the
remainder of his opinion are not consistent with even the
recommendation for treatment. The opinions indicating requirements for
time off work are speculative, at best. He provides no support for these
limitations and they are inconsistent with the conservative treatment.
(Id.) Initially, the Court notes that the ALJ was not required to accord controlling
weight to the opinion by Gayle related to Dailey’s ability to work fulltime in a
competitive environment (see Tr. 368 (Gayle generally opined that plaintiff could not
engage in any form of gainful employment on a repetitive, competitive and productive
basis over an eight-hour workday, forty hours a week, without missing more than 2
days of work per month)), since that is a dispositive issue reserved to the
Commissioner, compare Kelly v. Commissioner of Social Security, 401 Fed.Appx. 403, 407
(11th Cir. Oct. 21, 2010) (“A doctor’s opinion on a dispositive issue reserved for the
Commissioner, such as whether the claimant is ‘disabled’ or ‘unable to work,’ is not
considered a medical opinion and is not given any special significance, even if offered
by a treating source[.]”) with Lanier v. Commissioner of Social Security, 252 Fed.Appx. 311,
314 (11th Cir. Oct. 26, 2007) (“The ALJ correctly noted that the opinion that Lanier was
unable to work was reserved to the Commissioner.”). Moreover, Gayle’s explanation
for this very general proposition, namely that “prolonged sitting, standing and any
repetitive bending or stooping will aggravate his condition and lead to acute flares,
requiring time off[]” (Tr. 368), simply provides no information that runs contrary to the
residual functional capacity assessment “landed on” by the ALJ (compare id. with Tr. 24
(finding an RFC for light work except that plaintiff would have to alternate between
sitting, standing, and walking every 30 minutes to 1 hour and can only occasionally
11

stoop, kneel, crouch and crawl, etc.)), as specifically recognized by the ALJ (see Tr. 27
(ALJ noted that the accommodations included in her RFC assessment, that is, the
sitting/standing/walking limitations and postural limitations, were consistent with
Gayle’s form)).5 Accordingly, what the undersigned is “left” with is whether the ALJ
erred in failing to accord controlling weight to Dr. Gayle’s opinion that physical
activity—such as walking, standing, lifting, bending, repetitive movement of the
extremities, etc.—would greatly increase Dailey’s symptoms (that is, low back pain and
spasms) to such a degree as to cause distraction from, or total abandonment of, task (Tr.
368). The ALJ, of course, declined to afford this opinion controlling (or even significant
or substantial) weight on the basis that it was inconsistent “with the objective findings
included in any of his treatment notes. The MRI in December 2006 and the conservative
treatment recommended consistently fail to support the level of distraction indicated in
Exhibit 6F.” (Tr. 27.)
A review of the transcript reflects that Dr. Gayle began treating plaintiff in
February of 2008 (see Tr. 363-364) and continued to treat him on a continuous basis
through at least July of 2013 (see Tr. 417). On each and every occasion Gayle treated
plaintiff notation was made that Dailey was in no acute distress (Tr. 319, 321, 323, 325,
327, 329, 331, 333, 335, 337, 339, 341, 343, 345, 347, 348, 351, 353, 355, 357, 359, 361, 363,
405, 407, 409, 411 & 417) and the primary objective clinical finding contained in Gayle’s
records after the alleged onset date of March 19, 2012 (but also before, as well) is lumbar
muscle spasms (see Tr. 319, 409 & 411). However, just as often, Gayle noted no muscle
5

In other words, because the ALJ specifically determined that plaintiff can only
perform those jobs that allow alternation between sitting, standing, and walking (and only
occasional stooping, etc.), Dailey will not be required to perform any of the activities—that is,
prolonged sitting, walking, standing or repetitive bending and stooping—that Gayle opined
would cause “acute flares” requiring time off.

12

spasms and no other positive clinical findings. (See Tr. 405 (examination of
musculoskeletal/back within normal limits with no notation of spasms); Tr. 407 (same);
Tr. 417 (“Extremities: FROM, no deformities, no edema, no erythema, 2+dorsalis pedis
pulse bilaterally and no femoral bruits appreciated. Neuro: Physiological, no localizing
findings, antalgic gait.”); cf. Tr. 321 (examination by Gayle on March 7, 2012, less than
two weeks prior to the onset of disability, reflects musculoskeletal/back was within
normal limits with no notation of spasms).) Finally, MRI of Dailey’s lumbar spine (with
contrast) on December 1, 2006 revealed only mild disc bulging at L4-L5 and moderate
disc bulging at L5-S1, with no disc herniation or spinal stenosis (Tr. 245), while lumbar
x-rays in 2009 were negative (Tr. 250), and Dr. Gayle never made any suggestion that
surgery was necessary, as opposed to pain medication and occasional injections
(compare Tr. 319, 321, 323, 325, 327, 329, 331, 333, 335, 337, 339, 341, 343, 345, 347, 348,
351, 353, 355, 357, 359, 361, 363, 405, 407, 409, 411 & 417 with Tr. 45-46 (plaintiff’s
testimony that no recommendation for surgery has been made)).
In light of the foregoing, this Court cannot find that the ALJ erred in determining
that Dr. Gayle’s objective findings in his treatment notes did not support the level of
distraction indicated on the form he completed on September 7, 2012. See Gilabert, supra,
396 Fed.Appx. at 655 (good cause exists for not affording a treating physician’s opinion
substantial or considerable weight where the treating physician’s opinion is inconsistent
with his own medical records). Moreover, in light of the plaintiff’s description of his
abilities to sit, stand, walk, lift, bend, and stoop, etc. (compare Tr. 217 (plaintiff stated he
could lift 30 to 50 pounds, squat 5 to 10 minutes, bend for 10 minutes, stand 4 to 5
hours, reach 6 hours, walk for short periods of time, sit 2 hours with pain, kneel 10 to 20
minutes, and stair climb every other hour) with Tr. 44-47 (plaintiff’s testimony that he
cannot sit, stand, or walk for prolonged periods of time and has to shift positions)), and
13

Dr. Gayle’s “explanation” regarding the issues plaintiff would experience with
working, it is apparent to this Court that Dr. Gayle meant only to opine that “prolonged
sitting, standing and any repetitive bending or stooping” (Tr. 368 (emphasis supplied))
would cause plaintiff’s symptoms to increase to the point he would become distracted
from the tasks at hand (see id.). And since the ALJ found that plaintiff could only
perform those light jobs that would allow him to alternate among sitting, standing, and
walking and only require occasional stooping, etc. (Tr. 24), the undersigned perceives
no “real” inconsistency between the ALJ’s decision and Dr. Gayle’s opinion and, as
well, no basis for a remand for further consideration of the contents of the form Gayle
completed on September 7, 2012.
B.

Whether the ALJ Erred to Reversal in Failing to Seek Clarification from

Gayle. Plaintiff contends that the ALJ erred in failing to seek clarification from Dr.
Gayle after finding that the treating physician’s opinion was not deserving of
controlling weight particularly given the fact that Dr. Gayle’s opinion is the only
opinion of record from a treating or examining physician. (See Doc. 12, at 5-6.) In
support of this argument, plaintiff cites a Fifth Circuit case (id. at 5) for the following
proposition: “[I]f the ALJ determines that the treating physician’s records are
inconclusive or otherwise inadequate to receive controlling weight, absent other
medical opinion evidence based on personal examination or treatment of the claimant,
the ALJ must seek clarification or additional evidence from the treating physician in
accordance with 20 C.F.R. § 404.1512(e).” Newton v. Apfel, 209 F.3d 448, 453 (5th Cir.
2000) (emphasis supplied).
The undersigned cannot agree with plaintiff that the ALJ erred in failing to seek
clarification from Dr. Gayle. First, Newton is not binding precedent and nothing in the
Social Security regulations specifically require an ALJ to seek clarification from a
14

treating physician. Indeed, § 404.1512(e) makes no reference to seeking clarification or
additional evidence from the treating physician but, instead, directs itself solely to
consultative examinations, 20 C.F.R. § 1512(e) (2015) (“We may ask you to attend one or
more consultative examinations at our expense. . . . Generally, we will not request a
consultative examination until we have made every reasonable effort to obtain evidence
from your own medical sources.”), and § 404.1520b simply imbues an ALJ with the
discretion to re-contact a treating source, 20 C.F.R. § 404.1520b(c)(1) (“We may recontact
your treating physician, psychologist, or other medical source. We may choose not to
seek additional evidence or clarification from a medical source if we know from
experience that the source either cannot or will not provide the necessary evidence.”
(emphasis supplied)). Moreover, the ALJ did not find Dr. Gayle’s medical records
inconclusive or inadequate to receive controlling weight, Newton, supra; rather, the ALJ
found Gayle’s primary opinion on the form he completed on September 7, 2012 to be
inconsistent with his own records, a conclusion which is absolutely permissible in the
Eleventh Circuit, as set forth at some length supra. Accordingly, the Court finds that the
ALJ committed no error in failing to seek clarification from Gayle.
C.

Whether the ALJ Should Have Ordered a Consultative Orthopedic

Examination. Plaintiff contends that the ALJ failed to fulfill her duty to develop the
record by ordering a consultative orthopedic examination, given his lumbar
degenerative disc disease and complaints of low back pain coupled with an aged MRI
and noted dearth of diagnostic evidence. (Doc. 12, at 6-7.) Plaintiff is certainly correct
that the regulations provide for a consultative examination when additional evidence is
needed that is not contained in the records of his medical sources or when there is an
indication of a change in his condition that is likely to affect his ability to work, but the
current severity of his impairment is not established. See 20 C.F.R. § 1519a(b)(1) & (4)
15

(2015). However, the regulations also provide that if information sufficient to make an
informed disability decision can be obtained from the claimant’s treating physicians
and other medical sources, a consultative examination will not be necessary, compare 20
C.F.R. § 404.1512(e) (“Generally, we will not request a consultative examination until
we have made every reasonable effort to obtain medical evidence from your own
medical sources.”) with 20 C.F.R. § 404.1517 (“If your medical sources cannot or will not
give us sufficient medical evidence about your impairment for us to determine whether
you are disabled or blind, we may ask you to have one or more physical or mental
examinations or tests.”) and 20 C.F.R. § 404.1519a(a) (“If we cannot get the information
we need from your medical sources, we may decide to purchase a consultative
examination.”), and the Eleventh Circuit has consistently determined that an ALJ “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.”
Ingram v. Commissioner of Social Security, 496 F.3d 1253, 1269 (11th Cir. 2007) (citation
omitted).
Here, Gayle provided a plethora of evidence regarding plaintiff’s lumbar
degenerative disc disease and that evidence was certainly sufficient—particularly when
combined with the other evidence in the record and plaintiff’s testimony—to make an
informed disability decision. According, this Court cannot agree with plaintiff that the
ALJ erred in failing to order a consultative orthopedic examination.
D.

Whether the ALJ Committed Reversible Error in Substituting the

Opinion of a Non-Examining, Reviewing State Agency Physician for the Opinion of
Plaintiff’s Treating Physician in Violation of Eleventh Circuit Case Law under
Coleman v. Barnhart and Social Security Ruling 96-8p. Social Security Ruling 96-8p
provides that an ALJ’s “RFC assessment must include a narrative discussion describing
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how the evidence supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities, observations)[]”
and that “[i]n assessing RFC, the adjudicator must discuss the individual’s ability to
perform sustained work activities in an ordinary work setting on a regular and
continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule),
and describe the maximum amount of work-related activity the individual can perform
based on the evidence available in the case record.” Id. Moreover, this Court specifically
reaffirmed some thirteen years ago, in Coleman v. Barnhart, 264 F.Supp.2d 1007 (S.D. Ala.
2003), that the Commissioner’s fifth-step burden cannot be met “by the residual
functional capacity assessment of a non-examining, reviewing physician but instead
must be supported by the residual functional capacity assessment of a treating or
examining physician.” Id. at 1010. Based on the foregoing, plaintiff contends in this case
that the ALJ reversibly erred in this case by “relying on the opinion of a reviewing, nonexamining physician to determine the Plaintiff’s residual functional capacity rather than
the Plaintiff’s treating physician[.]” (Doc. 12, at 9; see also id. at 8-9.)
There are a number of reasons that the undersigned cannot agree with plaintiff’s
argument in this regard. While the ALJ objectively accorded “some” weight to Dr.
Hurley Knott’s adoption of the RFC dated August 17, 2012 (compare Tr. 27 with Tr. 369;
see Tr. 62-63 (physical RFC assessment dated August 10, 2012)), this is of little moment
since the RFC assessment dated August 10, 2012 bears little resemblance to the ALJ’s
RFC assessment (compare Tr. 62-63 with Tr. 24); therefore, this Court cannot find, as
plaintiff contends, that the ALJ relied to any significant degree upon Dr. Knott’s RFC
assessment to determine his residual functional capacity. More importantly, this Court
has for years distanced itself from Coleman, supra, in recognizing (time and again) that
in order to find the ALJ’s RFC assessment supported by substantial evidence, it is not
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necessary for the ALJ’s assessment to be supported by the assessment of an examining
or treating physician. See, e.g., Packer v. Astrue, 2013 WL 593497, *3 (S.D.Ala. Feb. 14,
2013) (“[N]umerous court have upheld ALJs’ RFC determinations notwithstanding the
absence of an assessment performed by an examining or treating physician.”), aff’d, 542
Fed.Appx. 890 (11th Cir. Oct. 29, 2013); McMillian v. Astrue, 2012 WL 1565624, *4 n.5
(S.D. Ala. May 1, 2012) (noting that decisions of this Court “in which a matter is
remanded to the Commissioner because the ALJ’s RFC determination was not
supported by substantial and tangible evidence still accurately reflect the view of this
Court, but not to the extent that such decisions are interpreted to require that
substantial and tangible evidence must—in all cases—include an RFC or PCE from a
physician” (internal punctuation altered and citation omitted)). And, finally, here, the
ALJ’s RFC assessment, compare 20 C.F.R. § 404.1546(c) (“If your case is at the
administrative law judge hearing level . . ., the administrative law judge . . . is
responsible for assessing your residual functional capacity.”) with, e.g., Packer v.
Commissioner, Social Security Admin., 542 Fed. Appx. 890, 891-892 (11th Cir. Oct. 29, 2013)
(per curiam) (“An RFC determination is an assessment, based on all relevant evidence,
of a claimant’s remaining ability to do work despite her impairments. There is no rigid
requirement that the ALJ specifically refer to every piece of evidence, so long as the
ALJ’s decision is not a broad rejection, i.e., where the ALJ does not provide enough
reasoning for a reviewing court to conclude that the ALJ considered the claimant’s
medical condition as a whole.” (internal citation omitted)), is supported by substantial
evidence in the record,6 namely, the examination records supplied by Dr. Gayle (Tr.
6

It is clear to this Court that the ALJ’s RFC assessment and analysis in this case is
in accord with the requirements of SSR 96-8p. (Compare Tr. 24 (the ALJ’s specific and detailed
RFC assessment) with, e.g., Tr. 26 (“[T]he restriction to light work only[,] as well as the

(Continued)
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319-320, 405-412 &417; see also Tr. 321-364), other relevant medical evidence (Tr. 244-245,
250, 286-298, 309-311, 381-382386-395 & 398-404), and plaintiff’s various descriptions of
his daily activities and his ability to perform work-related activities (see Tr. 44-47, 49-50
& 210-219).
In light of the foregoing, and because the plaintiff makes no argument that the
ALJ failed to identify other work existing in significant numbers in the national
economy that the claimant is capable of performing based upon the aforementioned
RFC assessment, the Commissioner’s fifth-step determination is due to be affirmed. See,
e.g., Owens v. Commissioner of Social Sec., 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 Sec., 494 Fed.Appx. 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)).

restriction involving workplace hazards[,] would accommodate the primary ongoing symptom
of fatigue. Moreover, the residual effects of his treatment, ongoing substance abuse, and even
his complaints regarding medication side effects would be accommodated by these
limitations.”) and Tr. 27 (“[T]he claimant’s restrictions in standing, walking, sitting, lifting, and
carrying are accommodated by the residual functional capacity limitations. He also testified that
he needs to move about some while he is working, but this would be accommodated by the
alternation among sitting, standing, and walking.”).)

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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 18th day of April, 2016.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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