Buxton v. Colvin

Filing 23

Order that the decision of the Commissioner of Social Security denying plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/19/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BILLY J. BUXTON,

*
*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
NANCY BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 16-00509-B

ORDER
Plaintiff Billy J. Buxton (hereinafter “Plaintiff”) seeks
judicial review of a final decision of the Commissioner of Social
Security denying his claim for a period of disability, disability
insurance benefits, and supplemental security income under Titles
II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq.,
and 1381, et seq.

On October 5, 2017, the parties consented to

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

(Doc.

18).

Thus,

the

action

was

referred

to

the

undersigned to conduct all proceedings and order the entry of
judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule
of
1

Civil

Procedure

73.

Upon

careful

consideration

of

the

Nancy Berryhill became the Acting Commissioner of Social Security
on January 23, 2017.
Pursuant to Rule 25(d), Federal Rules of
Civil Procedure, Nancy Berryhill should be substituted for
Carolyn W. Colvin as the defendant in this suit.
No further
action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).

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

Procedural History2
Plaintiff filed his application for benefits on April 30,

2013,

alleging

disability

beginning

March

1,

2011,

learning disability, hip problems, and knee problems.
at 181, 188, 201, 204).

based

on

(Doc. 12

Plaintiff’s application was denied and

upon timely request, he was granted an administrative hearing
before

Administrative

Law

Judge

Renee

(hereinafter “ALJ”) on May 20, 2015.
attended

the

hearing

related to his claims.

with

his

counsel

(Id.).

Blackmon

(Id. at 44).
and

provided

Hagler
Plaintiff
testimony

A vocational expert (“VE”) also

appeared at the hearing and provided testimony.

(Id.).

On June

5, 2015, the ALJ issued an unfavorable decision finding
Plaintiff is not disabled.

(Id. at 29).

The Appeals Council

denied Plaintiff’s request for review on September 1, 2016.
at 5).

that

(Id.

Therefore, the ALJ’s decision dated June 5, 2015, became

the final decision of the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

Oral argument

was conducted on October 26, 2017 (Doc. 21), and the parties
agree that this case is now ripe for judicial review and is
2

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF.

2

properly before this Court pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3).
II.

Issues on Appeal
1.Whether substantial evidence supports the
ALJ’s finding that Plaintiff’s bursitis of
the hip was non-severe?
2.Whether substantial evidence supports the
ALJ’s assignment of little weight to the
opinions of Plaintiff’s treating physician?
3.Whether substantial evidence
Residual Functional Capacity?

supports

the

4.Whether the ALJ erred by failing to fully
develop the record by ordering consultative
psychological and orthopedic examinations?
III. Factual Background
Plaintiff was born on

September 28, 1964,

and was fifty

years of age at the time of his administrative hearing on May 20,
2015.

(Doc. 12 at 44, 49).

school

but

only

completed

Plaintiff was in regular classes in
the

fifth

grade.

(Id.

at

49-50).

Plaintiff reported that he cannot read or write, but he can make
change for a twenty-dollar bill.
Plaintiff

last

worked

(Id. at 50).
from

2004

to

2010

at

BAE

Systems/Atlantic Marine as a laborer, sand blaster, and painter.
(Doc. 12 at 51-52).

Prior to that, he worked from 1989 to 2004

at Mitchell Company in the area of ground maintenance and Henry
Marine Services on a tugboat as a deckhand.
12 at 209).

3

(Id. at 51-52; Doc.

Plaintiff testified that he can no longer work due to pain
in his knees and his hip.

(Id. at 53).

His medical treatment

has consisted of cortisone injections and medications such as
Ibuprofen, Celebrex, and Paxil, which have provided some relief.
(Id. at 53-55).
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.
1)

whether

the

The Court’s review is limited to determining
decision

of

the

Secretary

is

supported

by

substantial evidence and 2) whether the correct legal standards
were applied.3
1990).

A

evidence,

court
or

Commissioner.
1986).

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
may

not

substitute

decide
its

the

facts

judgment

anew,

for

reweigh

that

of

the
the

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.

The Commissioner’s findings of fact must be affirmed if

they are based upon substantial evidence.

Brown v. Sullivan, 921

F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence is
defined as “more than a scintilla, but less than a preponderance”
and consists of “such relevant evidence as a reasonable person
would

accept

determining

as

adequate

whether

to

support

substantial

evidence

3

a

conclusion.”).
exists,

a

court

In
must

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

4

view

the

record

favorable,
decision.

as

as

a

well

whole,

as

taking

unfavorable,

into
to

account

the

evidence

Commissioner’s

Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir. 1986);

Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4 (S.D. Ala. June
14, 1999).
V.

Statutory and Regulatory Framework
An

individual

benefits

must

who

prove

404.1512, 416.912.
engage

in

any

applies

his

or

for

her

Social

Security

disability.

20

disability
C.F.R.

§§

Disability is defined as the “inability to

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected

to

result

in

death

or

which

has

lasted

or

can

be

expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a), 416.905(a).

423(d)(1)(A);

see

also

20

C.F.R.

§§

The Social Security regulations provide

a five-step sequential evaluation process for determining if a
claimant

has

proven

his

disability.

20

C.F.R.

§§

404.1520,

416.920.
The claimant must first prove that he or she has not engaged
in substantial gainful activity.

The second step requires the

claimant to prove that he or she has a severe impairment or
combination of impairments.

If, at the third step, the claimant

proves that the impairment or combination of impairments meets or
equals a listed impairment, then the claimant is automatically

5

found disabled regardless of age, education, or work experience.
If the claimant cannot prevail at the third step, he or she must
proceed

to

the

fourth

step

where

the

claimant

inability to perform their past relevant work.
810 F.2d 1001, 1005 (11th Cir. 1986).

must

prove

an

Jones v. Bowen,

At the fourth step, the

ALJ must make an assessment of the claimant’s RFC. See Phillips
v. Barnhart, 357 F. 3d 1232, 1238 (llth Cir. 2004).

The RFC is

an assessment, based on all relevant medical and other evidence,
of a claimant’s remaining ability to work despite his impairment.
See Lewis v. Callahan, 125 F. 3d 1436, 1440 (llth Cir. 1997).
If a claimant meets his or her burden at the fourth step, it
then becomes the Commissioner’s burden to prove at the fifth step
that

the

claimant

substantial

is

gainful

capable

of

employment

engaging
which

in

another

exists

in

kind

of

significant

numbers in the national economy, given the claimant’s residual
functional capacity, age, education, and work history.
Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
can

demonstrate

that

there

are

such

jobs

Sryock v.

If the Commissioner
the

claimant

can

perform, the claimant must prove inability to perform those jobs
in order to be found disabled.
1228 (11th Cir. 1999).

Jones v. Apfel, 190 F.3d 1224,

See also Hale v. Bowen, 831 F.2d 1007,

1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562,
1564 (11th Cir. 1985)).

6

VI.

Discussion
A. Substantial evidence supports the ALJ’s
finding that Plaintiff’s bursitis of the
hip was non-severe.
In his brief, Plaintiff argues that the ALJ erred in finding

that his bursitis of the hip was not a severe impairment.
14 at 5-6, 8).
that

The Commissioner counters that the ALJ’s finding

Plaintiff’s

substantial
reviewed

bursitis

evidence.

the

(Doc.

is

(Doc.

record

in

non-severe

15

this

at

is

8-9).

case,

the

supported

Having
Court

by

carefully

finds

that

Plaintiff’s claim is without merit.
In order for an impairment to be severe, it must be more
than

a

slight

abnormalities

abnormality

“that

causes

or
no

a

more

combination
than

minimal

of

slight

functional

limitations.” 20 C.F.R. § 416.924(c) (emphasis added).

Indeed,

it must “significantly limit[]” an individual’s “ability to do
basic work activities.” 20 C.F.R. § 416.920(c) (emphasis added).
“It is [the] Plaintiff’s burden to prove the existence of a
severe impairment, and she must do that by showing an impact on
her ability to work.”

Marra v. Colvin, 2013 U.S. Dist. LEXIS

105669, *13-14, 2013 WL 3901655, *5 (M.D. Fla. 2013) (citing
Bowen v. Yuckert, 482 U.S. 137, 146 (1987)); see also Barnhart
v. Thomas, 540 U.S. 20, 24 (2003) (“At step two, the SSA will
find

nondisability

unless

the

claimant
7

shows

that

he

has

a

‘severe impairment,’ defined as ‘any impairment or combination
of

impairments

physical

or

which

mental

significantly

ability

to

limits

do

basic

[the

work

claimant’s]

activities.’”)

(quoting §§ 404.1520(c), 416.920(c)); McDaniel v. Bowen, 800
F.2d

1026,

1031

(11th

Cir.

1986)

(“Unless

the

claimant

can

prove, as early as step two, that she is suffering from a severe
impairment, she will be denied disability benefits.”).
At the outset, the Court notes that, even if Plaintiff’s
bursitis of the hip is severe, the ALJ’s failure to classify it
as a severe impairment at step two of the sequential evaluation
process is not fatal.
LEXIS

115951,

*14,

See Bennett v. Astrue, 2013 U.S. Dist.
2013

WL

4433764,

*5

(N.D.

Ala.

2013)

(“‘[n]othing requires that the ALJ must identify, at step two,
all of the impairments that should be considered severe’ and,
even if the ALJ erred by not recognizing every severe impairment,
the

error

was

harmless

since

he

found

at

least

one

such

impairment.”); Ferguson v. Astrue, 2012 U.S. Dist. LEXIS 139135,
*25, 2012 WL 4738857, *9 (N.D. Ala. 2012) (“[B]ecause step two
only acts as a filter to prevent non-severe impairments from
disability

consideration,

the

ALJ’s

finding

of

other

severe

impairments allowed him to continue to subsequent steps of the
determination process and his failure to list headaches as severe
does not constitute reversible error because, under the Social
Security

regulations,

the

ALJ

at

8

later

steps

considers

the

combined effect of all the claimant’s impairments.”) (emphasis in
original).
In this case, the ALJ found at step two of the evaluation
process that Plaintiff had the severe impairment of arthritis of the
knees.

(Doc. 12 at 31).

After evaluating the evidence related to

Plaintiff’s bursitis of the hip, the ALJ determined that it was
not a severe impairment.

(Doc. 12 at 31-32).

The ALJ then

proceeded with the subsequent steps of the determination process
and

rendered

Therefore,

an

even

RFC
if

finding,
the

ALJ

based
should

on

the

have

record

found

as

this

a

whole.

additional

impairment to be severe at step two, the error would be harmless and
would provide no basis for remand.

That

being

said,

the

substantial

evidence

in

this

case

supports the ALJ’s finding that Plaintiff’s bursitis of the hip
is

non-severe.

Plaintiff’s

treatment

records

show

that

he

reported moderate right hip pain and received a diagnosis of
bursitis of the hip from orthopedic surgeon, Dr. Herbert Allen,
M.D., on April 27, 2015.
shows

that

infrequent

Plaintiff’s
and

(Doc. 12 at 290-95).
treatment

conservative,

for

this

essentially

condition

has

been

consisting

of

pain

medication and an injection on April 27, 2015.
64, 290-95).

The record also

(Doc. 12 at 262-

Dr. Allen’s physical examination findings on April

27, 2015, also reflect normal strength (5/5) in both hips, with
only “tenderness” in the greater trochanter and a positive Ober’s

9

test (indicating a “tight” iliotibial band) 4 in the right hip.
(Doc.

12

at

Plaintiff

293).

on

this

The
one

record
occasion

reflects

that

and,

despite

Dr.

Allen

Dr.

saw

Allen’s

instruction to return in three months, Plaintiff did not return.
(Doc. 12 at 295).

Also, x-rays of Plaintiff’s hips taken on

April 25, 2013, and April 27, 2015, reflect completely normal
findings, with no noted abnormalities.
289, 294).

(Doc. 12 at 267, 276,

Therefore, substantial evidence supports the ALJ’s

finding that Plaintiff’s bursitis of the hip was not a severe
impairment.

For each of these reasons, Plaintiff’s claim must

fail.
B. Substantial evidence supports the Residual
Functional Capacity for a range of light
work with the stated restrictions, as well
as the ALJ’s assignment of weight to the
opinions
of
Plaintiff’s
treating
physician.5
Plaintiff also argues that the ALJ’s RFC for a range of
light work is not supported by substantial evidence because the
ALJ gave only “some” or “little” weight to the opinions of his
treating physician, Dr. Wilsania Rodriguez, M.D.
2, 4, 8).
proper

(Doc. 14 at 1-

The Government counters that the ALJ assigned the

weight

to

Dr.

Rodriguez’s

opinions

as

they

are

inconsistent with the substantial evidence in the case, including
4

See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2941581/

5

Because Issues 2 and 3 are interrelated, the Court will discuss
them together.

10

Dr. Rodriguez’s own treatment records.

(Doc. 15 at 3-7).

Having

reviewed the record at length, the Court finds that Plaintiff’s
claims are without merit.
Residual

functional

capacity

(hereinafter

“RFC”)

is

a

measure of what Plaintiff can do despite his or her credible
limitations.

See 20 C.F.R. § 404.1545.

Determinations of a

claimant’s RFC are reserved for the ALJ, and the assessment is to
be based upon all the relevant evidence of a claimant’s remaining
ability

to

work

despite

his

or

her

supported by substantial evidence.

impairments,

and

must

be

See Beech v. Apfel, 100 F.

Supp. 2d 1323, 1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 404.1546
and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997));
Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10, 2012 WL
997222,

*4

(M.D.

Ala.

March

23,

2012).

Once

the

ALJ

has

determined the plaintiff’s RFC, the claimant bears the burden of
demonstrating

that

the

substantial evidence.
(11th Cir. 1985).

ALJ’s

decision

is

not

supported

by

See Flynn v. Heckler, 768 F.2d 1273, 1274

Plaintiff has failed to meet his burden in

this case.
As stated, Plaintiff argues that the ALJ erred in failing to
give

controlling

physician,

Dr.

weight
Wilsania

to

the

Rodriguez,

opinions

of

his

M.D.

As

part

treating
of

the

disability determination process, the ALJ is tasked with weighing
the

opinions

and

findings

of

treating,

11

examining,

and

non-

examining

physicians.

In

reaching

a

decision,

the

ALJ

must

specify the weight given to different medical opinions and the
reasons for doing so.

See Winschel v. Commissioner of Soc. Sec.,

631 F.3d 1176, 1179 (11th Cir. 2011).
reversible error.

The failure to do so is

See Williams v. Astrue, 2009 U.S. Dist. LEXIS

12010, *4, 2009 WL 413541, *1 (M.D. Fla. 2009).
When weighing the opinion of a treating physician, the ALJ
must give the opinions “substantial weight,” unless good cause
exists for not doing so.

Costigan v. Commissioner, Soc. Sec.

Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4 (11th
Cir. Feb. 26, 2015) (citing
Sec.,

363

F.3d

1155,

1160

Crawford v. Commissioner of Soc.

(11th

Cir.

2004)

Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).

and

Broughton

v.

The opinion of “a

one-time examining physician — or psychologist” is not entitled
to the same deference as a treating physician.

Petty v. Astrue,

2010 U.S. Dist. LEXIS 24516, *50, 2010 WL 989605, *14 (N.D. Fla.
Feb. 18, 2010) (citing Crawford, 363 F.3d at 1160).
is

“required

to

consider

the

opinions

of

Also, an ALJ

non-examining

state

agency medical and psychological consultants because they ‘are
highly

qualified

physicians

and

psychologists

who

experts in Social Security disability evaluation.’”

are

also

Milner v.

Barnhart, 275 Fed. Appx. 947, 948 (11th Cir. 2008) (unpublished)
(citing 20 C.F.R. § 404.1527(f)(2)(i)).

“The ALJ may rely on

opinions of non-examining sources when they do not conflict with

12

those of examining sources.”

Id. (citing Edwards v. Sullivan,

937 F.2d 580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining

physicians,

testimony

any

of

medical

good

cause

source

exists

when

unsupported by the evidence of record.
F.3d 1232, 1240 (11th Cir. 2004).
where

a

doctor’s

opinions

are

it

to

is

discredit

contrary

to

the
or

Phillips v. Barnhart, 357

“Good cause may also exist

merely

conclusory,

inconsistent

with the doctor’s medical records, or unsupported by objective
medical

evidence.”

Hogan

v.

Astrue,

2012

U.S.

108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).

Dist.

LEXIS

The ALJ is

“free to reject the opinion of any physician when the evidence
supports a contrary conclusion.”

Sryock v. Heckler, 764 F.2d

834, 835 (11th Cir. 1985) (per curiam) (citation omitted); Adamo
v. Commissioner of Soc. Sec., 365 Fed. Appx. 209, 212 (11th Cir.
2010) (The ALJ may reject any medical opinion if the evidence
supports a contrary finding.).
As discussed, the ALJ found that while Plaintiff has the
severe impairment of arthritis of the knees, he still has the RFC
to perform a range of light work with the following restrictions:
Plaintiff can occasionally climb ramps and stairs, but should
never climb ladders, ropes, and scaffolding.
stoop, kneel, crouch, and crawl.
unprotected heights.

He can occasionally

He should avoid working at

He would have residual academic deficits or

13

residual

psychiatric

deficits,

which

would

simple, routine, and repetitive type tasks.

restrict

him

to

(Doc. 12 at 31, 34).

Based upon the testimony of the vocational expert, the ALJ
concluded that Plaintiff is not able to perform his past relevant
work as a groundskeeper, deck hand, or industrial cleaner, but he
can perform other work such as garment folder, bench assembler,
and garment bagger (all light and unskilled).
Thus,

the

ALJ

found

that

Plaintiff

is

not

(Id. at 37-38).
disabled.

Having

reviewed the evidence at length, the Court is satisfied that the
ALJ’s findings related to Plaintiff’s RFC and the weight accorded
to the opinions of Plaintiff’s treating physician are supported
by substantial evidence.
First, with respect to Plaintiff’s treating physician, Dr.
Wilsania Rodriguez, M.D., the record shows, as the ALJ found,
that

Dr.

Rodriguez’s

treatment records.

opinions

were

inconsistent

with

her

own

According to her records, Dr. Rodriguez began

treating Plaintiff on April 24, 2013, at which time she diagnosed
him with right knee pain, for which she prescribed Celebrex and
Tramadol.
on

that

spines,

(Doc. 12 at 262).
date

subchondral

Rodriguez’s
knee.”

showed

An x-ray of Plaintiff’s right knee

tricompartmental
sclerosis,

impression

(Id. at 267).

was

and

narrowing

osteophyte

“degenerative

of

the

formation.

changes

of

the

tibial
Dr.
right

In addition, her examination findings on

that date reflect normal range of motion, no swelling, normal

14

strength, (5/5) bilaterally in the upper and lower extremities,
no acute distress, and mild tenderness and pain on full flexion
and extension of the knee.

(Id. at 262, 264).

instructed Plaintiff to return in six months.

Dr. Rodriguez

(Id.).

Plaintiff

returned one year later, on March 7, 2014, again complaining of
right knee pain, at which time Dr. Rodriguez diagnosed him with
osteoarthritis of the right knee.

On physical examination, Dr.

Rodriguez again found normal range of motion with tenderness and
pain in the right knee with flexion and extension.
70).

(Id. at 269-

Dr. Rodriguez renewed Plaintiff’s medications, prescribed a

knee brace, and instructed him to return in six months.
270).

Plaintiff returned on September 8, 2014,

refill

of

Tramadol,

normal

range

of

at

which

motion

tenderness or pain.

and

time
no

Dr.

(Id. at 280).

requesting a

Rodriguez

swelling,

(Id. at

again

apparently

noted

without

Dr. Rodriguez instructed

Plaintiff to continue wearing the knee brace and to take Tramadol
as needed for pain.
The

following

(Id.).
month,

on

October

9,

2014,

Dr.

Rodriguez

opined in a treating source statement that Plaintiff cannot work
due to “advanced osteoarthritis of the right knee which causes
him to have significant pain, stiffness, decreased mobility, and
intermittent swelling of this joint.”

(Doc. 12 at 282).

In

addition, in a Clinical Assessment of Pain form dated February
12, 2015, Dr. Rodriguez further opined that Plaintiff cannot work

15

due

to

pain

from

“osteoarthritis

of

the

knee,”

which

would

distract him from performing work and would greatly increase with
physical activity.

(Doc. 12 at 283).

While there is no question

that Plaintiff has “degenerative changes” of the right knee, as
the

ALJ

found,

Dr.

Rodriguez’s

infrequent,

conservative

examination

findings,

treatment

treatment

which

are

with

records

reflect

largely

normal

inconsistent

with

the

debilitating limitations opined in her treating source statement
and Clinical Assessment of Pain form.
In addition to being inconsistent with her own records, Dr.
Rodriguez’s opinions are inconsistent with the treatment notes of
orthopedic surgeon, Dr. Herbert Allen, who saw Plaintiff on April
27, 2015, for complaints of “moderate” knee pain.

Dr. Allen

noted that Plaintiff walked with a “waddling gait” and that he
had swelling and tenderness in the knees.

(Doc. 12 at 292-93).

An x-ray of Plaintiff’s knees taken on that date showed narrowing
of

the

medial

joint

space.

(Id.

at

294).

Upon

physical

examination, Dr. Allen found that Plaintiff had active range of
motion in the knees bilaterally, no crepitus or pain with normal
motion, normal flexion and extension, normal medial and lateral
rotation,

normal

strength

(5/5),

weakness,

flexion

(5/5),

extension

test,

negative

Apley’s

compression

16

no

hamstring

(5/5),
test,

or

quadriceps

negative

McMurray’s

negative

bounce

home

test, and negative Steinman’s displacement test. 6
292-93).

(Doc. 12 at

Dr. Allen’s diagnosis was knee pain and osteoarthritis,

for which he prescribed cortisone injections in both knees, and
instructed Plaintiff to use ice and Tylenol as needed for pain
and to return in three months.
treatment note in the record.

(Id. at 294).

That is the last

As the ALJ found, these treatment

notes are inconsistent with the severity of limitations opined by
Dr. Rodriguez.
The

record

also

confirms

the

ALJ’s

findings

related

to

Plaintiff’s activities of daily living, which include taking care
of his own personal needs, cooking, cleaning, washing dishes,
doing laundry, mopping, vacuuming, walking the dog, and going to
church.

(Doc. 12 at 58, 220-22).

Again, while there is no

question that Plaintiff has the severe impairment of arthritis of
the knees, the record supports the ALJ’s determination that the
severity of limitations expressed in Dr. Rodriguez’s opinions is
inconsistent

with

detailed above.

the

substantial

evidence

in

this

case,

as

Therefore, the ALJ had good cause to discredit

those opinions.
The

Court

further

finds,

based

on

the

evidence

detailed

above, that substantial evidence supports the ALJ’s finding that
Plaintiff has the RFC to perform a range of light work, with the
6

Dr. Allen’s treatment notes related to Plaintiff’s complaints of
hip pain are discussed in Issue One and will not be repeated
here.

17

stated restrictions. 7

Indeed, Plaintiff has failed to show that

any limitations caused by his impairments exceed the RFC and are
not

accommodated

by

the

RFC

and

its

stated

restrictions.

Accordingly, Plaintiff’s claim must fail.
C. The ALJ did not fail to fully develop the
record by failing to order consultative
psychological or orthopedic examinations.
Plaintiff

also

argues

that

the

ALJ

erred

in

failing

to

fulfill her duty to develop the record by ordering a consultative
psychological and/or orthopedic examination.

(Doc. 14 at 9-10).

The Government counters that the medical evidence in the record
was sufficient for the ALJ to make an informed decision regarding
the

RFC,

and,

thus,

the

consultative examinations.

ALJ

was

not

required

(Doc. 15 at 9-10).

to

order

any

Having reviewed

the record at length, the Court finds that Plaintiff’s claim is
without merit.
It

is

well

established

that

a

hearing

before

an

ALJ

in

social security cases is inquisitorial and not adversarial.

A

claimant bears the burden of proving disability and of producing
evidence in support of his claim, while the ALJ has “a basic duty
7

As stated, the ALJ found that Plaintiff has the RFC to perform a
range of light work but that he can climb ramps and stairs only
occasionally, should never climb ladders, ropes, and scaffolding,
can occasionally stoop, kneel, crouch, and crawl, should avoid
working at unprotected heights, and would have residual academic
deficits or residual psychiatric deficits which would restrict
him to simple, routine, and repetitive type tasks.
(Doc. 12 at
34).

18

to develop a full and fair record.”

Ellison v. Barnhart, 355

F.3d 1272, 1276 (11th Cir. 2003) (per curiam); see also Ingram v.
Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir.
2007).
In fulfilling the duty to conduct a full and fair inquiry,
the ALJ has the discretion to order a consultative examination
where the record establishes that such is necessary to enable the
ALJ to render a decision.
(11th Cir. 1988).
additional

Holladay v. Bowen, 848 F.2d 1206, 1210

However, the ALJ is not required to order an

consultative

examination

where

the

record

contains

sufficient evidence to permit the ALJ’s RFC determination.

Good

v. Astrue, 240 Fed. Appx. 399, 404 (11th Cir. 2007) (unpublished)
(“the ALJ need not order an additional consultative examination
where

the

record

was

sufficient

for

a

decision.”);

see

also

Ingram, 496 F.3d at 1269 (“The administrative law judge has a
duty to develop the record where appropriate but is not required
to

order

a

consultative

examination

as

long

as

the

record

contains sufficient evidence for the administrative law judge to
make an informed decision.”).

Further, “there must be a showing

of prejudice before [the court] will find that the claimant’s
right to due process has been violated to such a degree that the
case must be remanded to the Secretary for further development of
the record.”

Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)

In evaluating the necessity for a remand, the Court is guided by

19

“whether

the

record

reveals

evidentiary

unfairness or ‘clear prejudice.’”

gaps

which

result

in

Id. (citations omitted).

Having reviewed the record in this case, the Court finds
that

the

record.

ALJ

fulfilled

her

duty

to

develop

a

full

and

fair

First, the record before the ALJ contained the medical

records from the doctors who treated Plaintiff for his severe
physical impairment of arthritis of the knees, and the record
contains

no

discernible

evidentiary

gaps

related

to

that

should

have

impairment.
Second,

Plaintiff’s

argument

that

the

ALJ

ordered a consultative psychological evaluation to determine if
his mental deficits and inability to read and write would impair
his ability to perform basic work activities is misplaced.
14

at

11).

consultative

The
mental

record

shows

that

the

ALJ

examination,

which

was

performed

Kimberly Zlomke Rodriguez, Ph.D., on April 2, 2015.
285).

did

(Doc.

order
by

a
Dr.

(Doc. 12 at

Plaintiff reported to Dr. Rodriguez that he and most of

his nine siblings could neither read nor write, that they moved
around a lot as children, that they frequently missed school, and
that he ultimately stopped attending school.

(Id. at 285-86).

Plaintiff also reported working as a landscape laborer for nearly
twenty years, stating that he was fired at times for being unable
to read and write.
testing

to

determine

(Id.).

Although Dr. Rodriguez conducted

Plaintiff’s

20

cognitive

functioning,

she

concluded that the results indicated malingering and poor effort.
For

that

reason,

Rodriguez

opined

she

could

that,

make

“given

no

diagnosis.

[Plaintiff’s]

However,

ability

to

Dr.
hold

conversations, answer questions, have appropriate insight, and
hold employment for extended periods of time, it is extremely
unlikely his intelligence is a low as he performed [and] it is
unlikely that [he] is intellectually disabled.”

(Id. at 289).

Dr. Rodriguez’s opinions related to Plaintiff’s cognitive
functioning are consistent with Plaintiff’s long work history and
with the evidence related to his wide-ranging activities of daily
living.

(Doc. 12 at 58, 209, 220-22, 243).

Moreover, at the

administrative hearing, the vocational expert was instructed by
the ALJ to assume that Plaintiff had residual academic deficits
or

residual

psychiatric

deficits,

which

required

him

restricted to simple, routine, repetitive type tasks.
at 67-68).

to

be

(Doc. 12

The vocational expert opined that there were multiple

jobs that he could perform.
Based on the

(Id.).

foregoing, the Court is satisfied that the

record was sufficient to enable the ALJ to determine Plaintiff’s
RFC and that substantial supports the ALJ’s RFC determination
that Plaintiff can perform a range of light work with the stated
restrictions,
limitations.

which

fully

Indeed,

accommodate

there

is

any

nothing

physical
in

the

and

record

mental
which

indicates that Plaintiff’s limitations exceed those in the RFC.

21

Therefore, Plaintiff’s claim is without merit.
VII.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be AFFIRMED.
DONE this 19th day of March, 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

22