Murray v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WILLIAM MURRAY,

Plaintiff,

v. Case No. 8:18-cv-947-T-AEP

ANDREW M. SAUL,

Commissioner of Social Security,1

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of his claim for a period of disability,

disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). As the

Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and employed

proper legal standards, the Commissioner’s decision is affirmed.

I.

A. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 375-80). The

Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 141-48,

157-62). Plaintiff then requested an administrative hearing (Tr. 163-64). Per Plaintiff’s request,

the ALJ held a hearing, and, following the hearing, the ALJ issued an unfavorable decision

finding Plaintiff not disabled and accordingly denied Plaintiff’s claims for benefits (Tr. 104-

26). Plaintiff requested review from the Appeals Council, which the Appeals Council granted.

1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d),

Federal Rules of Civil Procedure, Andrew M. Saul should be substituted for Acting

Commissioner Nancy A. Berryhill as the defendant in this matter. No further action needs to

be taken to continue this matter by reason of the last sentence of section 205(g) of the Social

Upon consideration, the Appeals Council remanded the matter to the ALJ for further

consideration (Tr. 127-31). On remand, the ALJ obtained additional evidence and conducted a

new hearing (Tr. 43-68).2 After the hearing, the ALJ issued an unfavorable decision, again

finding Plaintiff not disabled (Tr. 17-42). Subsequently, Plaintiff requested review from the

Appeals Council, which the Appeals Council denied (Tr. 1-6). Plaintiff then timely filed a

complaint with this Court (Doc. 1). The case is now ripe for review under 42 U.S.C. §§ 405(g),

1383(c)(3).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1968, claimed disability beginning February 28, 2009 (Tr.

375, 377). Plaintiff obtained a high school education (Tr. 427). Plaintiff’s past relevant work

experience included work as a fence erector and tree trimmer (Tr. 59-61, 428-31). Plaintiff

alleged disability due to liver problems, possible multiple sclerosis, possible aneurism, and a

stutter (Tr. 427).

In rendering the administrative decision, the ALJ concluded that Plaintiff met the

insured status requirements through December 31, 2009 and that Plaintiff had not engaged in

substantial gainful activity since February 28, 2009, the alleged onset date (Tr. 23). After

conducting a hearing and reviewing the evidence of record, the ALJ determined Plaintiff had

the following severe impairments: seizure disorder, stuttering, status post left tibia/fibula

fracture, osteomyelitis, tachycardia, and hypertension (Tr. 23). Notwithstanding the noted

impairments, the ALJ determined Plaintiff did not have an impairment or combination of

2 Prior to the final administrative hearing, Plaintiff failed to appear for a previously scheduled

hearing, and the ALJ therefore issued an Order of Dismissal (Tr. 132-36). After

consideration, the Appeals Council vacated the ALJ’s Order of Dismissal and directed the

ALJ to consider whether Plaintiff established good cause for not appearing at the hearing (Tr.

137-40). The ALJ then determined that Plaintiff established good cause, reinstated Plaintiff’s

impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1 (Tr. 28). The ALJ then concluded that Plaintiff retained a residual

functional capacity (“RFC”) to perform light work, except that Plaintiff could not climb ladders,

ropes, or scaffolds; should have no exposure to hazardous machinery; and limit the public

contact to six hours during the workday (Tr. 28). In formulating Plaintiff’s RFC, the ALJ

considered Plaintiff’s subjective complaints and determined that, although the evidence

established the presence of underlying impairments that reasonably could be expected to

produce the symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and

limiting effects of his symptoms were not entirely consistent with the medical evidence and

other evidence (Tr. 29).

Considering Plaintiff’s noted impairments and the assessment of a vocational expert

(“VE”), however, the ALJ determined Plaintiff could not perform his past relevant work (Tr.

31). Given Plaintiff’s background and RFC, the VE testified that Plaintiff could perform other

jobs existing in significant numbers in the national economy, such as an office helper, a hand

packager, and a housekeeping cleaner (Tr. 32). Accordingly, based on Plaintiff’s age,

education, work experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not

disabled (Tr. 32).

II.

To be entitled to benefits, a claimant must be disabled, meaning he or she must be 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. §§

423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results

from anatomical, physiological, or psychological abnormalities, which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3),

1382c(a)(3)(D).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.

§§ 404.1520, 416.920.3 If an individual is found disabled at any point in the sequential review,

further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this process, the

ALJ must determine, in sequence, the following: whether the claimant is currently engaged in

substantial gainful activity; whether the claimant has a severe impairment, i.e., one that

significantly limits the ability to perform work-related functions; whether the severe

impairment meets or equals the medical criteria of 20 C.F.R. Part 404 Subpart P, Appendix 1;

and whether the claimant can perform his or her past relevant work. If the claimant cannot

perform the tasks required of his or her prior work, step five of the evaluation requires the ALJ

to decide if the claimant can do other work in the national economy in view of his or her age,

education, and work experience. 20 C.F.R. §§ 404.1520(a), 416.920(a). A claimant is entitled

to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42

(1987); 20 C.F.R. §§ 404.1520(g), 416.920(g).

A determination by the Commissioner that a claimant is not disabled must be upheld if

it is supported by substantial evidence and comports with applicable legal standards. See 42

U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation

3 The cited references to the regulations pertain to those in effect at the time the decision was

rendered.

marks omitted)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). While the court reviews

the Commissioner’s decision with deference to the factual findings, no such deference is given

to the legal conclusions. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th

Cir. 1994) (citations omitted).

In reviewing the Commissioner’s decision, the court may not re-weigh the evidence or

substitute its own judgment for that of the ALJ even if it finds that the evidence preponderates

against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

The Commissioner’s failure to apply the correct law, or to give the reviewing court sufficient

reasoning for determining that he or she has conducted the proper legal analysis, mandates

reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining whether

the findings of the Commissioner are supported by substantial evidence and whether the correct

legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221

(11th Cir. 2002).

III.

Plaintiff argues that the ALJ erred by failing to fully develop the record. Namely,

Plaintiff contends that the ALJ failed to fully develop the record for the period after September

26, 2015, the date on which Plaintiff was hospitalized following a collision between an

automobile and Plaintiff as a pedestrian. Mainly, Plaintiff contends that the ALJ should have

ordered an updated consultative examination regarding Plaintiff’s RFC and should have

considered the amount of time Plaintiff would have missed work between September 26, 2015,

the date of the hospitalization, and March 1, 2017, the date of the ALJ’s decision. According

to Plaintiff, the numerous hospitalizations during that time period would have precluded

substantial gainful activity.

Even though Social Security proceedings are inquisitorial rather than adversarial in

nature, claimants must establish their eligibility for benefits. Ingram v. Comm’r of Soc. Sec.

Admin., 496 F.3d 1253, 1269 (11th Cir. 2007); 20 C.F.R. §§ 404.1512(a), 416.912(a). During

the administrative process, therefore, a claimant must inform the Social Security Administration

about or submit all evidence known to the claimant relating to whether the claimant is blind or

disabled. 20 C.F.R. §§ 404.1512(c), 416.912(c). Though the claimant bears the burden of

providing medical evidence showing she is disabled, the ALJ is charged with developing a full

and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The ALJ maintains

this basic obligation to develop a full and fair record without regard for whether the claimant is

represented by counsel. Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995) (citation omitted).

When the plaintiff demonstrates that the record reveals evidentiary gaps which result in

unfairness or “clear prejudice,” remand is warranted. Id. at 935; Henry v. Comm’r of Soc. Sec.,

802 F.3d 1264, 1267 (11th Cir. 2015) (“Remand for further factual development of the record

before the ALJ is appropriate where the record reveals evidentiary gaps which result in

unfairness or clear prejudice.”) (quotation and citation omitted); Graham v. Apfel, 129 F.3d

1420, 1423 (11th Cir. 1997) (“However, there must be a showing of prejudice before it is found

that the claimant’s right to due process has been violated to such a degree that the case must be

remanded to the [Commissioner] for further development of the record.”) (citation omitted).

Although the ALJ has a duty to develop the record, the ALJ is not required to order a

consultative examination when the record contains sufficient evidence upon which the ALJ can

make an informed decision. Ingram, 496 F.3d at 1269 (citing Doughty v. Apfel, 245 F.3d 1274,

1281 (11th Cir. 2001)); 20 C.F.R. §§ 404.1512(e), 404.1519a, 416.912(e), 416.919a. Rather,

the regulations dictate that the ALJ may ask the claimant to attend a consultative examination

at the Commissioner’s expense, but only after the ALJ fully considers whether any additional

information needed is readily available from the records of the claimant’s medical sources.

Doughty, 245 F.3d 1280-1281; See 20 C.F.R.§§ 404.1512(d)-(e), 404.1519a(a), 404.1520b,

416.912(d)-(e), 416.919a(a), 416.920b.2 It is reversible error, however, for an ALJ not to order

a consultative examination when such an evaluation is necessary for the ALJ to make an

informed decision. Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984) (citation omitted).

The decision to recontact a medical source or to order a consultative examination

remains within the discretion of the Commissioner. See, generally, 20 C.F.R. §§ 404.1520b(c),

416.920b(c). If the evidence is consistent but the Commissioner does not have sufficient

evidence to determine whether a claimant is disabled, or, if after weighing the evidence, the

Commissioner determines that a conclusion cannot be reached about whether the claimant is

disabled, the Commissioner will determine the best way to resolve the inconsistency or

insufficiency, including recontacting a treating physician or medical source or asking the

claimant to undergo a consultative examination. 20 C.F.R. §§ 404.1520b(c)(1) & (3),

416.920b(c)(1) & (3). In this instance, the evidence relied upon by the ALJ was neither

inconsistent nor insufficient. Rather, as the decision indicates, the record contained sufficient

evidence, including medical evidence subsequent to Plaintiff’s September 26, 2015

hospitalization, for the ALJ to make an informed decision (Tr. 20-33, 1186-94, 1204-16, 1267-

2 A non-exhaustive list of situations requiring a consultative examination appears in the

regulations, at 20 C.F.R. §§ 404.1519a(b) and 416.919a(b), and includes situations where (1)

the additional evidence needed was not contained in the records of claimant’s medical

sources; (2) the evidence that may have been available from the claimant’s treating or other

medical sources could not be obtained for reasons beyond the claimant’s control, such as

death or non-cooperation of a medical source; (3) highly technical or specialized medical

evidence that the Commissioner needs was not available from claimant’s treating or other

medical sources; or (4) there was an indication of a change in the claimant’s condition likely

to affect the claimant’s ability to work, but the current severity of claimant’s impairment was

1326, 1331-52, 1380-1424, 1427-51, 1454-78, 1480-1515). As such, the ALJ did not need to

seek a consultative examination to correct any inconsistencies or insufficiencies in the record.

Furthermore, no evidentiary gap exists due to the lack of a medical source statement

subsequent to Plaintiff’s September 2015 accident. As the Commissioner notes, a physician’s

opinion as to what a claimant can still do despite his or her impairments differs from an ALJ’s

assessment of a claimant’s RFC. See 20 C.F.R. §§ 404.1512(b), 404.1513(b) & (c),

404.1527(d)(2), 404.1545, 404.1546, 416.912(b), 416.913(b) & (c), 416.927(d)(2), 416.945,

416.946; Social Security Ruling (“SSR”) 96-5p, 1996 WL 374183 (July 2, 1996). Indeed, SSR

96-5p explains that

Even though the adjudicator’s RFC assessment may adopt the opinions in a

medical source statement, they are not the same thing: A medical source

statement is evidence that is submitted to SSA by an individual’s medical source

reflecting the source’s opinion based on his or her own knowledge, while an

RFC assessment is the adjudicator’s ultimate finding based on a consideration

of this opinion and all the other evidence in the case record about what an

individual can do despite his or her impairment(s).

***

A medical source’s statement about what an individual can still do is medical

opinion evidence that an adjudicator must consider together with all of the other

relevant evidence (including other medical source statements that may be in the

case record) when assessing an individual’s RFC. Although an adjudicator may

decide to adopt all of the opinions expressed in a medical source statement, a

medical source statement must not be equated with the administrative finding

known as the RFC assessment.

SSR 96-5p, 1996 WL 374183, at *4, *5. The task of determining a claimant’s RFC and ability

to work thus rests with the ALJ, not a medical source. See Moore v. Soc. Sec. Admin., Com’r,

649 F. App’x 941, 945 (11th Cir. 2016); Castle v. Colvin, 557 F. App’x 849, 853 (11th Cir.

2014) (“Contrary to the district court’s reasoning, the ALJ did not ‘play doctor’ in assessing

Mr. Castle’s RFC, but instead properly carried out his regulatory role as an adjudicator

responsible for assessing Mr. Castle’s RFC … Indeed, the pertinent regulations state that the

ALJ has the responsibility for determining a claimant’s RFC.”); Robinson v. Astrue, 365 F.

App’x 993, 999 (11th Cir. 2010) (“We note that the task of determining a claimant’s residual

functional capacity and ability to work is within the province of the ALJ, not of doctors.”).

Given that the ALJ properly considered the evidence of record, including several treatment

notes and medical records subsequent to Plaintiff’s September 2015 accident, the ALJ did not

need to obtain a consultative examination for Plaintiff to determine Plaintiff’s limitations. The

determination of Plaintiff’s RFC remained, at all times, with the ALJ.

Finally, the ALJ did not err in considering the frequency of Plaintiff’s hospitalizations

and medical treatment. In determining a Plaintiff’s RFC, the ALJ must consider all the relevant

evidence of record, including the effects of treatment, taking into consideration limitations or

restrictions imposed by the mechanics of treatment, such as the frequency of treatment,

duration, and disruption to routine. SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996). Though

the Eleventh Circuit has rejected the argument that numerous medical appointments render a

claimant disabled, Cherkaoui v. Comm’r of Soc. Sec., 678 F. App’x 902, 904 (11th Cir. 2017),

the ALJ must still consider the effects of a claimant’s treatment in conjunction with the other

evidence of record. In this instance, the ALJ did so. The ALJ discussed each of Plaintiff’s

hospitalizations and all the medical treatment Plaintiff received prior to the date of the decision

(Tr. 20-31). In doing so, the ALJ considered the length and nature of the treatment (Tr. 29-30).

Further, not all of Plaintiff’s medical treatment and hospitalizations were expected to

recur or cause any further limitations. For example, in September 2016, Plaintiff decided to

lance a bump on his leg with a scalpel and went to the emergency room after unable to control

bleeding (Tr. 30, 1186-89, 1283-86). Additionally, Plaintiff received treatment for MRSA and

infected hardware with tibial osteomyelitis in October and November 2016 (Tr. 30, 1381-1424,

1454-78, 1480-1515). The hardware was removed and the ALJ explicitly stated that he

accounted for any possible residual effects of the fracture and osteomyelitis by limiting Plaintiff

to light exertional work (Tr. 30). The ALJ also noted that, having received treatment for the

MRSA infection, Plaintiff should not experience any additional long-term limitations (Tr. 30).

As the Commissioner argues, therefore, Plaintiff failed to demonstrate that his

condition, or any attendant medical treatment or hospitalizations, established disabling

limitations for a consecutive twelve-month period. See 42 U.S.C. 8§ 423(d)(1)(A),

1382c(a)(3)(A); 20 C.F.R. §§ 404.1509, 416.909. Nor did Plaintiff establish that his

impairments prevented him from performing work within the confines of the RFC or as

identified by the VE. Instead, the ALJ properly considered the evidence of record, including

the evidence from Plaintiff’s September 2015 accident and all subsequent treatment notes and

hospitalizations. Substantial evidence supports the ALJ’s decision, and the ALJ applied the

proper legal standards.

IV.

Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is AFFIRMED.

2. The Clerk is directed to enter final judgment in favor of the Commissioner and close

the case.

DONE AND ORDERED in Tampa, Florida, on this 20th day of August, 2019.

Fe ce

PW JE)

ANTHONY € PORCELL|

United Sfates Magistrate Judge

cc: Counsel of Record