Bradley v. Commissioner of Social Security

Filing 22

ORDER affirming the Commissioner's decision and directing the clerk to enter judgment in favor of the Commissioner and close the file. Signed by Magistrate Judge Patricia D. Barksdale on 3/8/2016. (LPB)

United States District Court
Middle District of Florida
Tampa Division
PURCELL BRADLEY,
Plaintiff,
v.

NO. 8:14-CV-2266-T-PDB

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order Affirming Commissioner’s Decision
This is a case under 42 U.S.C. § 1383(c)(3) to review a final decision of the
Commissioner of the Social Security Administration denying Purcell Bradley’s claim
for supplemental security income. He seeks reversal; the Commissioner, affirmance.
The Court incorporates the record summarized by the Administrative Law Judge
(“ALJ”), Tr. 21–27, and the parties, Doc. 20 at 1–4; Doc. 21 at 1–3, 7–8.
Issue
Bradley presents one issue: whether the ALJ erred by failing to consider the
August 4, 2012, consultative examination and its corroborative impact on the
opinions of W. Martin Underwood, D.C.
Background
Bradley was 46 on the date of the ALJ’s decision. Tr. 26, 157. He last worked
in March 2012. Tr. 198. He has a high-school education with a year of college and
experience as construction worker, cement finisher, maintenance man and painter.

Tr. 198–99, 204–211, 245, 305. He alleged he had become disabled in March 2012 due
to broken wrists (from falling off a ladder), back pain, leg problems, and vision issues.
Tr. 34, 47–48, 157, 194, 198. He proceeded through the administrative process, failing
at each level. Tr. 1–6, 16–27, 57–65, 67–73, 81–86. This case followed. Doc. 1.
Consultative Evaluation
Bradley presented to a consultative examiner 1 at KLM Medical Services, LLC,
in Tampa on August 4, 2012, for a consultative evaluation. Tr. 290. The consultative
examiner summarized Bradley’s reports of impairments (broken wrists, vision loss,
and chronic back, neck, and leg pain). Tr. 290. The consultative examiner also
summarized Bradley’s reports of limitations (“sitting for 20 minutes due to his back,
standing for 25 minutes due to his back and walking 1/2 block due to his back[,] …
being able to lift 1–2 pounds due to his wrist and back,” Tr. 291), and absence of them
(“[h]e states [his vision loss] has not started to affect his ability to work,” Tr. 290).
The consultative examiner observed no palpable muscle spasms and charted his
muscle strength except his hip flexion and extension, which Bradley refused due to
severe pain. Tr. 292. The consultative examiner reported full (5 out of 5) muscle
strength on the left and right side for his deltoids, biceps, triceps, wrist flexion, wrist
extension, finger abduction, hand grip, ankle plantar flexion and ankle dorsi-flexion,
and reduced (3 out of 5) muscle strength for hip abduction and adduction, and leg

1It

is unclear who performed the evaluation because the only reference to the
examiner is “T Kelly,” the signature is illegible, and the evaluation contains no other
identifying information like “M.D.” Tr. 289, 294–95. Because both parties refer to the
person as a doctor or physician, Doc. 20 at 3, 5; Doc. 21 at 6–7, the Court assumes “T
Kelly” was a doctor and refers to him or her simply as the consultative examiner.
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flexion and extension on both sides. Tr. 292–93. The consultative examiner observed
he had fine motor skills, could dress and undress well, could rise from a sitting
position without assistance, and with difficulty, could lift, carry and handle light
objects, get up and down from the examination table, and squat and rise from that
position. Tr. 293.
As to Bradley’s broken wrists, the consultative examiner observed a decreased
range of motion on the wrist joint at 20 degrees on all sides but full muscle strength
and intact sensation, range of motion of the right hand within normal limits and good
grip strength, flexion and extension of the left thumb within normal limits, but
limited range of motion (60 degrees) preventing formation of a grip on the left side.
Tr. 293. The consultative examiner stated, “There was no visible atrophy in both of
the extremities and reflexes were within normal limits. The patient did have some
difficulty secondary to pain in performing some of these maneuvers and therefore was
not putting in his best effort.” Tr. 293.
As to Bradley’s back and leg pain, the consultative examiner observed he had
back tenderness, a positive straight-leg raising test at 30 degrees bilaterally, reflexes
within normal limits, and 3 out of 5 muscle strength in his hip and leg because of
pain. Tr. 293. The consultative examiner stated, “The patient was cooperative;
however, the pain was limiting his effort during the examination. … He did seem to
be in distress upon lying down on the examination table.” Tr. 293.

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As to Bradley’s vision, the consultative examiner found his “visual acuity and
gross confrontation appeared normal with the visual fields slightly restricted on the
right more than the left on gross confrontation.” Tr. 293.
ALJ’s Decision
At step two, 2 the ALJ found Bradley has severe impairments of bilateral carpal
fractures and lumbago (degenerative disc and joint diseases, or DDD and DJD), with
obesity. Tr. 21. At step three, he determined Bradley’s impairments, whether
individually or in combination, did not meet or medically equal the severity in the
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, App’x 1. Tr. 22. After stating
he had considered the entire record, he found Bradley has the residual functional
capacity to perform less than a full range of light work because, although he has no
postural limitations related to balancing, stooping, or crawling, (1) he can never climb
ladders, ropes or scaffolds; (2) he can only occasionally climb ramps and stairs, kneel,
and crouch; (3) his handling is limited to frequently with his non-dominant hand; (4)
he must avoid even moderate exposure to extreme cold, humidity, and hazards like
machinery and heights; and (5) he must be able to sit or stand at will as long as he is
not off task more than ten percent of the work period. Tr. 22. He found Bradley could

2The

Social Security Administration (SSA) uses a five-step sequential process
to decide if a person is disabled, asking (1) if he is engaged in substantial gainful
activity; (2) if he has a severe impairment or combination of impairments; (3) if the
impairment meets or equals the severity of anything in the Listing of Impairments,
20 C.F.R. Part 404, Subpart P, App’x 1; (4) given his residual functional capacity
(RFC), if he can perform any of his past relevant work; and (5) given his RFC, age,
education, and work experience, if there are a significant number of jobs in the
national economy he can perform. 20 C.F.R. § 416.920(a)(4)
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perform no past relevant work. Tr. 25–26. Based on the testimony of a vocational
expert, he found there are jobs Bradley can perform (information clerk, telemarketer,
and assembler) and therefore is not disabled. Tr. 26–27.
The ALJ included the consultative examination as an exhibit to his opinion,
Tr. 31, but did not cite it or summarize it, see generally Tr. 16−27.
Standard of Review
A court’s review of an ALJ’s decision is limited to determining whether the ALJ
applied the correct legal standards and whether substantial evidence supports his
findings. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial
evidence is “less than a preponderance”; it is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Id. The court may not
decide facts anew, reweigh evidence, make credibility determinations, or substitute
its judgment for the Commissioner’s judgment. Id.
Analysis
To be eligible for supplemental security income, a claimant must demonstrate
that he is disabled. 20 C.F.R. § 416.912. A claimant is disabled if he “is unable to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 1382c(a)(3)(A). The claimant has the burden of persuasion
through step four of the five-step process. Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987). At step four, an ALJ must evaluate the claimant’s ability to perform his past

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relevant work in light of his residual functional capacity. Phillips v. Barnhart, 357
F.3d 1232, 1238 (11th Cir. 2004). The residual functional capacity is an assessment
based on all evidence of a claimant’s remaining ability to work despite his
impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
An ALJ must consider all relevant record evidence in making a disability
determination. 20 C.F.R. § 416.920(a)(3). “[T]here is no rigid requirement that the
ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ’s
decision … is not a broad rejection which is not enough to enable [the Court] to
conclude that [the ALJ] considered [the claimant’s] medical condition as a whole.”
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (quotations omitted). An ALJ’s
determination may be implicit, but the “implication must be obvious to the reviewing
court.” Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983).
An ALJ has a heightened duty to discuss medical opinions. McClurkin v. Soc.
Sec. Admin., 625 F. App’x 960, 963 (11th Cir. 2015). He must evaluate every medical
opinion, regardless of its source, and must “state with particularity the weight he
[gives] the different medical opinions and the reasons therefor.” Sharfarz v. Bowen,
825 F.2d 278, 279 (11th Cir. 1987); 20 C.F.R. § 416.927(c). An ALJ must give
considerable weight to a treating physician’s opinion unless he shows good cause for
not doing so. Phillips, 357 F.3d at 1240. If an ALJ disregards the opinion, he must
clearly articulate his reasons. Id. at 1241. Substantial evidence must support those
reasons. Id. Those standards do not apply to a treating physician’s opinion the

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claimant is disabled because that opinion is legal rather than medical. Lewis, 125
F.3d at 1436.
A treating source is a physician, psychologist, or other acceptable medical
source who provides medical treatment or evaluation to the claimant and who has, or
has had, an ongoing treatment relationship with the claimant, as established by
medical evidence showing that the claimant sees or has seen the physician with a
frequency consistent with accepted medical practice for the treatment or evaluation
required for the medical condition. 20 C.F.R. § 416.902. An ALJ may consider
evidence from other sources, including a medical source not considered an “acceptable
medical source” like a chiropractor. 20 C.F.R. § 416.913(d)(1). The opinion of a onetime examining physician is not entitled to great weight and may be discredited by
other record evidence. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th
Cir. 2004). But an ALJ must articulate the basis for rejecting a medical opinion even
if it is not entitled to great weight because it comes from a non-treating physician or
otherwise. McClurkin, 625 F. App’x at 962–63.
Bradley argues the ALJ erred by failing to consider the consultative evaluation
which, when combined with the opinion of chiropractor Dr. Underwood, establishes
the impact of his lumbar, cervical, and bilateral hip impairments on his ability to
work. Doc. 20 at 4–5. He argues the ALJ did not mention the consultative evaluation
“even though it was the most thorough description by a doctor of [his] physical
limitations.” Doc. 20 at 5. The Commissioner responds the ALJ reviewed the
consultative evaluation along with all the other medical evidence. Doc. 21 at 6. She

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observes the consultative examiner did not provide any limitation in the evaluation.
Doc. 21 at 7. She argues as a one-time examining source, the consultative examiner’s
opinion is not entitled to controlling weight and, citing Dyer, contends he was not
required to specifically refer to it in his decision. Doc. 21 at 7. She argues the ALJ
found the record did not support Bradley’s alleged limitations, citing the recovery of
his right arm without arthritis and good grip, neurovascular status, and range of
motion on that side. Doc. 21 at 7–8. She observes the ALJ considered Dr. Underwood’s
treatment records, including his opinion that temporary strain/sprain could cause
Bradley’s symptoms and his notations that Bradley repeatedly reported feeling better
with treatment. Doc. 21 at 8 (citing Tr. 23, 310, 315, 320–22, 324–37). She argues the
ALJ was not required to give Dr. Underwood’s opinions any weight or articulate
reasons for discounting his opinion and, regardless, Bradley failed to show how his
opinions could have affected the outcome regarding the impact of his lumbar, cervical,
and bilateral hip impairments. Doc. 21 at 9.
The Commissioner’s contention the ALJ was not required to refer to the
consultative examination because he is not required to refer to every piece of evidence
under Dyer, see Doc. 21 at 7, fails because the consultative examination included
medical opinions. See McClurkin, 625 F. App’x 962–63 (ALJ may not implicitly reject
medical

opinion

because

court

cannot

determine

reasons

and

rejecting

Commissioner’s reliance on Dyer because it referred to a duty to discuss general
objective evidence, not an ALJ’s heightened duty to discuss medical opinions). But
here, while the ALJ did not specifically reference or cite the consultative evaluation,

8

he considered it with the other medical evidence in the case and did not reject any
medical opinions from the consultative examiner, implicitly or otherwise. The
consultative evaluation contained no functional limitations beyond those Bradley
reported, which were consistent with those he conveyed at the hearing and the ALJ
expressly evaluated (his sitting and standing limitations and his ability to lift only 1
to 2 pounds). Tr. 24–25, 41–43, 291. The ALJ observed Bradley’s maneuverability was
limited at 15 to 20 degrees flexion and extension, which is consistent with the
consultative examiner’s findings. Tr. 23, 294. The ALJ incorporated his inability to
grip with his left hand by limiting handling to frequently with his non-dominant
hand. Tr. 22, 293.
Bradley’s argument concerns his lower-body limitations. The consultative
examiner, however, expressed no opinion whether the difficulties observed in the
evaluation (squatting, getting up and down from the examination table, hip and leg
strength exercises) would affect his ability to work or whether they would persist for
longer than 12 months. Citing no particular record, the ALJ found the evidence
supported his need to change positions between sitting and standing when desired
but observed “demonstrable testing failed to justify more limitations that [sic] the
undersigned had provided in the residual function capacity.” Tr. 23. Bradley does not
explain how the ALJ’s limitations regarding never climbing ladders, ropes or scaffolds
and only occasionally climbing ramps and stairs, kneeling, and crouching are
inconsistent with the consultative evaluation.

9

Bradley suggests the ALJ should have given more weight to Dr. Underwood’s
opinions in light of the consultative evaluation. He states “Dr. Underwood’s records
and opinion relate to the impact of [his] lumber, cervical and bilateral hip
impairments have on [his] ability to work” and contends “the ALJ does not consider
this at all.” Doc. 20 at 5. But the ALJ expressly considered Dr. Underwood’s treatment
records and adequately explained why—aside from observing he is not an acceptable
medical source under 20 C.F.R. § 416.913(a) as a chiropractor—he rejected Dr.
Underwood’s opinions: (1) “he himself also raised the alternative possibility of mere
(temporary) sprain/strain as the cause of the symptoms”; (2) there was no evidence of
any cord blockage or lower extremity derangement, including from his own
examination; (3) Bradley’s other medical records showed no lower limb loss of motion;
and (4) “the only likely basis for finding lower body losses in sitting, walking and
standing would be extreme pain symptoms.” 3 Tr. 23 & n.1, 25, 310 (listing current
diagnosis of “chronic recurrent lumber spine disc condition v. sprain/strain” and
observing conservative treatment goals will provide quicker return to normal
activity). The observations of the consultative examiner do not affect the ALJ’s

3The

ALJ found Bradley’s statements concerning the intensity, persistence,
and limiting effects of his symptoms only partially credible. Tr. 24–25. Bradley does
not challenge the ALJ’s credibility findings; regardless, he gave Bradley “the benefit
of every uncertainty” as to his “sitting/standing proscriptions.” Tr. 25. Moreover, the
ALJ did not base his credibility findings on any failure of Bradley to have previously
reported pain or limitations, see Tr. 25, which might have made the failure to mention
the consultative examination more important.
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reasoning in evaluating Dr. Underwood’s opinions on his lower body limitations and
substantial evidence supports his decision to discount them. 4
Conclusion
The Court affirms the Commissioner’s decision denying Bradley’s claim for
benefits and directs the clerk to enter judgment in favor of the Commissioner and
close the file.
Ordered in Jacksonville, Florida, on March 8, 2016.

c:

Counsel of Record

4Bradley

cites a March 12, 2013, letter from Dr. Underwood drafted after the
ALJ’s January 29, 2013, decision containing the opinion he was completely
incapacitated due to lumbar problems. Doc. 20 at 4; Tr. 12, 27. He submitted the letter
to the Appeals Council, which determined the letter related to a later time. Tr. 2. He
does not raise any argument concerning the Appeals Council’s consideration of this
evidence.
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