Sanders v. Colvin
MEMORANDUM AND OPINION stating that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 1/11/2017. Copies to parties. (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
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 her
claims for disability insurance benefits and supplemental security income. 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. 18 (“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 post-judgment proceedings.”); see
also Doc. 19 (endorsed order of reference).) Upon consideration of the administrative
record, plaintiff’s brief, the Commissioner’s brief, and the arguments of counsel at the
December 5, 2016 hearing before the Court, it is determined that the Commissioner’s
decision denying benefits should be affirmed.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 18 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
Plaintiff alleges disability due to rheumatoid arthritis, diabetes mellitus (type II),
hypertension, and obesity. The Administrative Law Judge (ALJ) made the following
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2016.
The claimant has not engaged in substantial gainful activity since
December 7, 2012, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
The claimant has the following severe impairments: rheumatoid
arthritis, diabetes mellitus type II, hypertension, and obesity (20 CFR
404.1520(c) and 416.920(c)).
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, 404.1526, 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she
needs a sit/stand option that allows only 4 hours standing and 4 hours
sitting in a workday. She can do no climbing of ladders, ropes or
scaffolds; can [perform] occasional climbing [of] stairs, stooping,
kneeling, crouching or crawling; and is limited to no more than
frequent handling and fingering.
In making this finding, the undersigned has 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 416.929 and SSRs 96-4p and
96-7p. The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
this judicial circuit in the same manner as an appeal from any other judgment of this district
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms to some degree; however, the
claimant’s statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible for the reasons
explained in this decision.
In terms of the claimant’s alleged rheumatoid arthritis, the medical
evidence simply does not confirm the severity of symptoms that the
claimant has alleged. Although she has certainly had some tenderness of
her joints on physical examinations, she has had no significant synovitis of
the joints, she has no edema of the extremities, she has no significant loss
of motion of any joints, she has normal motor strength in the upper and
lower extremities, and she has a normal gait. Exhibit 10F, p. 4 also
indicates that while the claimant’s fatigue is likely related to rheumatoid
arthritis, her doctor noted that she had just had a baby by cesarean section
one month earlier that could also result in fatigue with a one-month old at
home. At her last documented visit in January 2014, the claimant actually
denied having any limitation of activities, limping, morning stiffness, or
weakness and she admitted that her pain was aggravated by rest and
relieved by activity. The claimant’s pain and other symptoms also seem to
have improved with medications. In fact, the claimant admitted at Exhibit
10F, p. 4 that her knee pain had resolved entirely with her current
medications and Exhibit 15F, p. 2 shows she denied any joint stiffness,
weakness, limping or activity limitations. It is also significant to note that
the claimant’s own doctor noted at Exhibit 12F that while the claimant
would have some increase of symptoms with physical activity, it would
not be to such extent as to prevent adequate functioning in such tasks (i.e.,
walking, standing, bending, stooping, moving extremities, etc.).
The claimant also suffers from diabetes and hypertension, but these
conditions seem to have improved since the claimant had her baby in
2013. In July 2013, her blood pressure was controlled at 115/79, in
December 2013, it was 126/84, and at her last documented medical visit in
January 2014, it was 138/96. As for her blood sugars, the claimant
admitted that she has come off insulin and is only taking oral medications
and her doctor noted at Exhibit 14F, p. 5 that her diabetes mellitus was
“uncomplicated” with an A1C that was in the low normal range. The
claimant has also required no emergency room visits or inpatient
hospitalizations due to a diabetic or hypertensive crisis and she has
suffered no end organ damage to date due to either condition.
The claimant is also morbidly obese. The undersigned has therefore
considered Social Security Ruling 02-01p involving evaluation of obesity.
This ruling observes that obesity can cause limitation of function and that
an individual may have limitations in any of the exertional functions such
as sitting, standing, walking, lifting, carrying, pushing, and pulling.
Obesity also may affect ability to do postural functions, such as climbing,
balance[ing], stooping, and crouching.
The ability to manipulate may be affected by the presence of adipose
(fatty) tissue in the hands and fingers. The ability to tolerate extreme heat,
humidity, or hazards may also be affected.
The combined effects of obesity with other impairments may be greater
than might be expected without obesity. For example, someone with
obesity and arthritis affecting a weight-bearing joint may have more pain
and limitation than might be expected from the arthritis alone. With
regard to the claimant’s weight, the undersigned is of the opinion that it
contributes to her limitations in performing more than light work,
climbing, kneeling, crawling, stooping, and crouching.
The undersigned also notes that despite her rheumatoid arthritis, diabetes
mellitus, hypertension, and obesity, the claimant performs a wide range of
daily activities, including taking care of a small child, taking her older
kids to and from school, washing dishes, doing laundry, cooking, driving,
shopping, visiting, and going to Bible study and church on a regular basis.
Her pain and other symptoms do not appear to interfere with attention
and concentration, as she handles her own finances, reads, watches
television, goes to Bible study and church, shops and drives[,] and she has
admitted that she is able to pay attention as long as needed.
As for the opinion evidence, the undersigned gives some weight to the
treating physician opinion at Exhibit 12F that the claimant’s symptoms do
not prevent adequate functioning with regards to walking, standing,
bending, stooping, moving extremities, etc. However, the statement that
she would be absent from work 2 or more days per month is given no
weight, as it is inconsistent with the treatment note at Exhibit 15F, p. 2 that
indicates activity helps her symptoms and rest makes them worse. There
is no State Agency medical doctor opinion relating to the claimant’s
Based on all of the above, the undersigned finds the claimant has the
residual functional capacity to perform light work with a sit/stand option
that allows only 4 hours standing and 4 hours sitting in a workday; no
climbing of ladders, ropes or scaffolds; occasional climbing [of] stairs,
stooping, kneeling, crouching or crawling; and no more than frequent
handling and fingering. The undersigned limited the claimant to light
work and included the postural limitations due to the combination of her
rheumatoid arthritis, diabetes, hypertension and obesity. The sit/stand
option was included based on the claimant’s testimony at the hearing that
she is up and down during the day. The handling and fingering
limitations are based on the recent treatment notes at Exhibit 15F, p. 3
showing synovitis of the bilateral hands, although this was a one-time
finding and earlier treatment notes actually showed her hands were
normal and/or she had only mild synovitis.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
The claimant was born on November 8, 1973 and was 39 years
old, which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
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).
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, 404.1569(a), 416.969, and 416.969(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 202.21. 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, the
Administrative Law Judge 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 light/unskilled SVP work as a router Dictionary of Occupational
Titles (DOT) #222.587-038 (3,900 jobs in the region; 300,000 jobs in the
national economy) and assembler, electrical DOT #726.687-010 (1,200;
90,000); and light/semi-skilled SVP 3 work as a gate guard DOT #372.667030 (1,700; 130,000).
Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert’s testimony is consistent with the information contained
in the Dictionary of Occupational Titles with the exception of the sit/stand
option, which the DOT does not cover but is based on the vocational
Based on the testimony of the vocational expert, the undersigned
concludes 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.
The claimant has not been under a disability, as defined in the
Social Security Act, from December 7, 2012, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. 22, 23, 24, 25-26, 26, 26-27, 27 & 28 (internal citations 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.
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 she is unable to perform her previous work.
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
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
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 she cannot do her past relevant work, as here, it then becomes the
Commissioner’s burden—at the fifth step—to prove that the plaintiff is capable—given
her 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 she 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
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).
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
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.
On appeal to this Court, Sanders asserts three reasons why the Commissioner’s
decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1)
the ALJ erred in failing to assign controlling weight to the opinion of the treating
physician, Dr. Crisostomo Baliog; (2) the ALJ erred in acting as both judge and
physician by arbitrarily submitting his own medical opinion for the opinion of a
medical professional in violation of Marbury v. Sullivan and SSR 96-8p in finding she can
perform light work; and (3) the ALJ erred in fulfilling his duty to develop the record by
ordering a consultative orthopedic examination. The Court will address each issue in
Opinion of Plaintiff’s Treating Physician, Dr. Crisostomo Baliog.
Although it is a bit difficult to read Dr. Baliog’s handwriting, it appears that on
November 7, 2013 he completed a symptoms assessment form4 and thereon indicated
that he had treated plaintiff since December 14, 2012 for rheumatoid arthritis. (Tr. 409.)
Baliog indicated that physical activity—such as walking, standing, bending, stooping,
moving of extremities, etc.—would result in some increase in plaintiff’s symptoms but
Plaintiff’s attorneys, Gardberg & Clausen, P.C., supplied this form to Baliog. (See
not to such extent as to prevent adequate functioning in such tasks. (Id.) Baliog 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: “Pt may have limitation on certain days when
she has a flare of her arthritis.” (Id. (emphasis supplied).)
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)
In this case, the ALJ accorded some weight to the “physical activity/symptom”
opinion offered by Dr. Baliog5 but no weight to his suggestion that plaintiff could not
engage in any form of gainful employment on a repetitive, competitive and productive
basis in a normal 8-hour workday, 40 hours a week, without missing more than 2 or
more days per month, etc. (Tr. 26.)
The undersigned gives some weight to the treating physician opinion at
Exhibit 12F that the claimant’s symptoms do not prevent adequate
functioning with regards to walking, standing, bending, stooping, moving
extremities, etc. However, the statement that she would be absent from
work 2 or more days per month is given no weight, as it is inconsistent
with the treatment note at Exhibit 15F, p. 2 that indicates activity helps her
symptoms and rest makes them worse.
This Court specifically finds that the ALJ was not required to accord controlling
weight to Baliog’s suggestion related to Sanders’ ability to work fulltime in a
competitive environment (see Tr. 409 (Baliog 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, due to “possible” limitations “on certain days when she has a
flare of her arthritis”)), 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
Dr. Baliog’s opinion in this regard is inherently consistent (and offers further
support) for the ALJ’s RFC determination; therefore, in truth, the ALJ could have accorded this
opinion controlling weight. However, the ALJ’s failure to do so is mere harmless error.
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.”). In addition, this Court agrees with the ALJ that
Baliog’s opinion in this regard cannot be “squared” with the evidence in his
examination records establishing that relieving factors for plaintiff’s symptoms include
activity (compare Tr. 26 with Tr. 428 (“Symptom is aggravated by rest. Relieving factors
include activity[.]”)). 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).6
Accordingly, this Court discerns no basis for a remand for further consideration of the
contents of the form Baliog completed on November 7, 2013.
Whether the ALJ Arbitrarily Submitted his Own Medical Opinion for
that of a Medical Professional in Violation of Marbury v. Sullivan and SSR 96-8p in
Finding Plaintiff can Perform Light Work. Plaintiff contends that the ALJ erred in
acting as both judge and physician by substituting his own medical opinion for the
opinion of a medical professional to find that plaintiff can perform light work, in
violation of Marbury v. Sullivan and SSR 96-8p. (Doc. 12, at 6.) Stated somewhat
differently, it is plaintiff’s position that since the ALJ rejected Dr. Baliog’s opinion that
she would be absent from work two days a month, and there is no other medical
opinion in the record regarding her physical impairments, the ALJ “merely chose the
limitations he thought to be relevant without establishing a link between the medical
evidence of record and the adopted residual functional capacity.” (Id. at 8.)
The ALJ’s stated reason for rejecting Dr. Baliog’s opinion in this regard is
compelling particularly in light of the very “speculative” and “uncertain” nature of that opinion
(see Tr. 409 (Baliog indicating only that plaintiff’s rheumatoid arthritis “may” cause limitation)).
Initially, the undersigned notes that there can be no question but that in a
specially concurring opinion in Marbury v. Sullivan, 957 F.2d 837 (11th Cir. 1992), Senior
Circuit Judge Frank Johnson emphasized that “[a]n ALJ sitting as a hearing officer
abuses his discretion when he substitutes his own uninformed medical evaluations for
those of a claimant’s treating physicians.” Id. at 840. In support of this conclusion, Judge
Johnson directly cited Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988) for the
proposition that “’[a]bsent a good showing of cause to the contrary, the opinions of
treating physicians must be accorded substantial or considerable weight by the
[Commissioner].’” Id. In Marbury, of course, the ALJ disregarded the medical diagnoses
of the plaintiff’s psychogenically caused seizures as provided by his doctors, see id.;
here, however, the ALJ readily accepted Baliog’s diagnosis of rheumatoid arthritis (Tr.
22). What the ALJ did not accept was Baliog’s speculative opinion that plaintiff would
be absent from work two days of month, an opinion that not only invades the
dispositive issue reserved to the Commissioner but, as well, that was otherwise
properly rejected for the stated reason set forth by the ALJ. Accordingly, Marbury v.
Sullivan, supra, does not control disposition of this matter.
This Court has consistently recognized that in order to find the ALJ’s RFC
assessment supported by substantial evidence, it is not 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)). Therefore, plaintiff’s observation that the ALJ’s rejection
of Dr. Baliog’s “two absences” opinion somehow “divests” the record of substantial
support for the RFC determination is simply incorrect. Indeed, 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 both “linked to” and supported by substantial
evidence in the record, namely, the examination records supplied by Dr. Baliog (see Tr.
336-337, 342-343, 399-400, 404 & 427-429 (described more fully, infra)),7 other relevant
medical evidence (Tr. 280-285, 290, 294-295, 391-395 & 420-422 (described more fully,
This Court finds that Dr. Baliog’s physical examination findings are in no
manner inconsistent with the ALJ’s assessment that plaintiff is capable of performing light work
with a sit/stand opinion (allowing for 4 hours of sitting and 4 hours of standing in an 8-hour
workday), only occasional climbing of stairs, stooping, kneeling, crouching, or crawling, and
only frequent handling/fingering (compare id. with Tr. 24), particularly in light of Dr. Baliog’s
specific observation that physical activity—for instance, walking, standing, bending, stooping,
moving extremities—would result in some increase in plaintiff’s symptoms but not to the extent
that it would prevent adequate functioning in such tasks (Tr. 409).
infra)), and plaintiff’s various descriptions of her daily activities8 and her ability to
perform work-related activities (see Tr. 39-58 & 177-187). Therefore, plaintiff’s second
assignment of error has no merit.
Whether the ALJ Should Have Ordered a Consultative Orthopedic
Examination. Plaintiff contends that the ALJ failed to fulfill his duty to develop the
record by ordering a consultative orthopedic examination, given the severe
impairments found to exist (including, rheumatoid arthritis and obesity) and the ALJ’s
assignment of less than controlling weight to the opinion of plaintiff’s treating
physician. (Doc. 12, at 9-10.) 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 her medical sources or when there is an indication of a change in her
condition that is likely to affect his ability to work, but the current severity of her
impairment is not established. See, e.g., 20 C.F.R. § 1519a(b)(1) & (4) (2016). However,
the regulations also provide that if information sufficient to make an informed disability
decision can be obtained from the claimant’s treating physician and other medical
sources, a consultative examination will not be necessary, compare, e.g., 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
In particular, the evidence reflects a wide range of daily activities, which include
caring for her youngest child (who was 10 months of age at the time of the hearing),
transporting her twin daughters to and from school, washing dishes, cooking, driving, doing
laundry, shopping, visiting, and attending church and Bible study on a regular basis. (Compare
Tr. 48-49, 50, 52 & 56-57 with Tr. 177-187.)
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, Baliog provided numerous treatment records regarding plaintiff’s
rheumatoid arthritis (see Tr. 336-337 (physical examination on March 25, 2013, revealed
full range of motion of the hands and wrists with no synovitis, decreased range of
motion in the left elbow but full ROM on the right, tenderness in left shoulder and
decrease in abduction of the shoulders, tenderness to palpation in the paraspinal
muscle, full range of motion of the hips and knees, no effusions in the knees, edematous
but no synovitis or tenderness in the ankles and feet); 342-343 (physical examination on
February 1, 2013, revealed full range of motion in the hands, wrists, right elbow, right
shoulder, neck, hips, hips and ankles, with no synovitis in the hands, some decreased
range of motion in the left shoulder and elbow, no effusion of the knees, pitting edema
in the ankles, a negative MTP squeeze test of the feet, and tenderness to palpation in the
lower back); 399-400 (physical examination on May 6, 2013, revealed full range of
motion of the hands/wrists, neck, hips, knees, ankles, and feet; there was decreased
range of motion in the elbows with tenderness to palpation and tenderness to palpation
bilaterally in the shoulders and the back paraspinally); 404 (physical examination on
April 3, 2013, noted tenderness of numerous joints on range of motion testing and some
mild synovitis of the hands, with a noted need for a steroid shot); & 427-429 (physical
examination, on January 27, 2014, revealed synovitis of the bilateral hands “involving 3,
4 and 5 MCP and PIP as well as stiffness of left elbow” but no extremity edema and,
overall, musculoskeletal examination was normal, with a normal gait); cf. Tr. 212-213)),
and that evidence was certainly sufficient—particularly when combined with the other
evidence in the record (see, e.g., Tr. 280-285 (on three physical examinations by Dr.
Susan L. Baker in January and February of 2013, plaintiff was noted to be in no acute
distress and during one of those examinations, on January 29, 2013, she denied any joint
pain); Tr. 290 (on January 2, 2013, plaintiff denied “any specific complaints.”); Tr. 294295 (on examination by Dr. Baker, on December 18, 2012, plaintiff was noted to be in no
acute distress on physical examination); Tr. 391-395 (physical examination by Dr.
Christin L. Taylor on July 31, 2013, revealed no extremity edema and no problems with
the hands, knees and feet/ankles; however, limited extension of both elbows was
noted); Tr. 420-422 (physical examination by Dr. Taylor on December 16, 2013, revealed
no extremity edema); but cf. Tr. 301-302 (on physical examination by Dr. Baker on
December 4, 2012, plaintiff was noted to be in mild distress, with pitting edema to the
knee in the lower extremities, and was hospitalized due to “possible lupus flare” and
exacerbation of her blood pressure)), and plaintiff’s testimony (Tr. 39-58; see also Tr. 177187 (function report and fatigue questionnaire completed by Sanders))—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.
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 she 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)).
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 11th day of January, 2017.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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