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2013 Sep-19 AM 11:17
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social
CASE NO. 2:12-CV-1054-VEH
The plaintiff, Sylvester Graves, brings this action pursuant to the provisions of
section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking
judicial review of a final adverse decision of the Commissioner of the Social Security
Administration (the Commissioner) denying his application for disability insurance
benefits and Supplemental Security Income. Plaintiff timely pursued and exhausted
The court notes that, on February 14, 2013, Carolyn W. Colvin was named the Acting
t h e S o c i a l S e c u r i t y A d m i n i s t r a t i o n . S e e
C o m m i s s i o n e r o f
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.”). Under 42 U.S.C. § 405(g), “[a]ny
action instituted in accordance with this subsection shall survive notwithstanding any change in the
person occupying the officer of Commissioner of Social Security or any vacancy in such office.”
Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil Procedure
the court has substituted Carolyn W. Colvin for Michael Astrue in the case caption above and
HEREBY DIRECTS the clerk to do the same party substitution on CM/ECF.
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his administrative remedies available before the Commissioner. Accordingly, this
case is now ripe for judicial review under 205(g) of the Social Security Act (the Act),
42 U.S.C. § 405(g). Based on the court’s review of the record and the briefs
submitted by the parties, the court finds that the decision of the Commissioner is due
to be affirmed.
I. STANDARD OF REVIEW
The sole function of this court is to determine whether the decision of the
Commissioner is supported by substantial evidence and whether proper legal
standards were applied. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). To that end this court “must scrutinize the record as a whole to determine if
the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth, at 1239 (citations omitted). Substantial evidence is “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Bloodsworth, at 1239. This court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Even if the court finds that the evidence
preponderates against the Commissioner’s decision, the court must affirm the
Commissioner’s decision if it is supported by substantial evidence. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003).
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II. STATUTORY AND REGULATORY FRAMEWORK
In order to qualify for disability benefits and to establish entitlement for a
period of disability, a claimant must be disabled. The Act defines disabled as the
“inability 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); 42 U.S.C. § 416(I). For the purposes
of establishing entitlement to disability benefits, “physical or mental impairment” is
defined as “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).
In determining whether a claimant is disabled, Social Security regulations
outline a five-step sequential process. 20 C.F.R. § 404.1520 (a)-(f). The
Commissioner must determine in sequence:
(1) whether the claimant is currently employed;
(2) whether she has a severe impairment;
(3) whether her impairment meets or equals one listed by the
(4) whether the claimant can perform her past work; and
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(5) whether the claimant is capable of performing any work in the
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); accord McDaniel v. Bowen, 800
F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied Steps One and
Two, she will automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her past work,
the burden shifts to the Secretary to show that the claimant can perform some other
job.” Pope, at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
In the present case, the ALJ determined the plaintiff met the first two tests, but
concluded he did not suffer from a listed impairment. The ALJ found the plaintiff
had the residual functional capacity (“RFC”) to perform light work as defined in 20
C.F.R. § 404.1567(b) and 416.967(b) “except that he is precluded from climbing
ladders, ropes and scaffolds; can only occasionally engage in stooping, kneeling,
crouching and crawling; is required to avoid concentrated exposure to extreme cold
and humidity; and precluded from exposure to unprotected heights and hazardous
machinery.” R. 27. The plaintiff was also limited to the performance of “simple,
routine and repetitive tasks as a result of a mild to moderate impairment of
concentration and the side effects of prescribed medications.” R. 27. With this RFC,
the ALJ found the plaintiff unable to perform his past relevant work. R. 30. Once it
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is determined that the plaintiff cannot return to her prior work, “the burden shifts to
the [Commissioner] to show other work the claimant can do.” Foote, at 1559. When
a claimant is not able to perform the full range of work at a particular exertional level,
the Commissioner may not exclusively rely on the Medical-Vocational Guidelines
(the grids). Foote, at 1558-59. The presence of a non-exertional impairment (such
as pain, fatigue or mental illness) also prevents exclusive reliance on the grids. Foote,
at 1559. In such cases “the [Commissioner] must seek expert vocational testimony.
Foote, at 1559. Based on the plaintiff’s RFC and expert vocational testimony, the
ALJ found the plaintiff would be able to perform other work in the national economy.
R. 30-31. Therefore, he found the plaintiff was not disabled at step five of the
sequential evaluation framework. R. 31.
III. FACTUAL BACKGROUND
The plaintiff alleges he is disabled due to symptoms and limitations related to
human immunodeficiency virus (HIV), lumbar degenerative disc disease, dysthymic
disorder, and chronic severe pain. The medical records show the plaintiff was treated
by Dr. Mobley (or others in her practice) for HIV, back pain and other various
complaints. On December 5, 2006, Dr. Mobley’s treatment note shows the plaintiff
reported he felt well and had no complaints. R. 200. On June 28, 2007, he was seen
in follow-up for his HIV. R. 199. He reported that he had an episode of a skin rash
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on his arms, but it had self-resolved. R. 199. Dr. Mobley noted “[h]e has otherwise
done well.” R. 199. On February 26, 2008, the plaintiff had no complaints of illness
from his HIV, and his pain rating was zero. R. 198. On April 7, 2008, the plaintiff
was examined at Dr. Mobley’s office by Linda Hall. R. 197. He complained of
chronic low back pain, but his pain level was indicated as zero. R. 197. Dr. Mobley
referred plaintiff to physical therapy for strengthening exercises. R. 197, 259. When
the plaintiff was seen on November 4, 2008, he complained of low back pain,
primarily when getting out of bed in the morning. R. 258. The plaintiff reported
these episodes lasted two to three weeks, and might occur every two to three months.
R. 258. He reported his pain was not usually helped with NSAIDs or muscle relaxers.
R. 258. There is no indication of a physical examination of the plaintiff’s back at this
visit. R. 258. The diagnostic assessment was chronic low back pain, and the plan
was physical therapy. R. 258. When the plaintiff was seen on January 27, 2009, it
was noted he was not interested in physical therapy. R. 257. The treatment note
indicates tramadol and Motrin had been prescribed without relief. R. 257. Feldene,
a non-steroidal anti-inflammatory drug, was prescribed. R. 257. This is the last
treatment note from Dr. Mobley that mentions back pain. On April 21, 2009, the
plaintiff was seen by Dr. Mobley with a cough. R. 256. When the plaintiff was seen
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on November 3, 2009, the treatment note indicates plaintiff’s pain rating was zero.
In addition to treatment records, the plaintiff was referred by the Social
Security Administration for a consultative physical examination by Dr. Touger on
June 11, 2008. The plaintiff reported to Dr. Touger that his back hurt “if he had been
standing for a while.” On physical examination, Dr. Touger noted a “straight leg
raise sign on the right,” but observed the plaintiff “maintain[ed] full range of motion
of his right hip.” R. 227. Dr. Touger found a reduced range of motion in flexion,
right lateral flexion, and left lateral rotation. R. 228. Dr. Touger’s diagnostic
impression included the following:
Lower back pain with some evidence of radicular pain. He has not
had any MRI scanning. He has not been seen by orthopedist or
neurosurgeon. I think all of the above would be appropriate at this
time. He probably does have a lesion that would be amenable to
surgery to get him back to full function.
Subsequent to Dr. Touger’s examination, the plaintiff was sent for an x-ray
exam by the Social Security Administration. That x-ray showed “early degenerative
changes of the lumbar spine with decreased lumbar lordosis.” R. 245. The x-ray
showed the “vertebral body heights and disc spaces appear[ed] preserved.” R. 245.
There were no apparent abnormalities. R. 245.
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The plaintiff was examined on January 25, 2010, by Dr. Allen at the request of
his attorney. Dr. Allen reviewed the plaintiff’s medical treatment records and
observed there had been many notations of low back pain. R. 267. He noted the
medical records contained “referrals to physical therapy, but ‘no-shows’ for therapy
are also noted throughout the record.” R. 267. Dr. Allen reviewed the plaintiff’s
earlier Social Security disability evaluation, and noted the previous examiner opined
the plaintiff’s “condition had potential for rehabilitation.” R. 267. Dr. Allen also
commented on the lack of diagnostic imaging supporting the plaintiff’s pain
complaints: “Of note, there is no MRI and no plain film x-rays to substantiate his low
back pain.” R. 267. The plaintiff reported to Dr. Allen he could easily carry a gallon
of milk, but denied being able to carry more than one to two bags of groceries at a
time, especially during flares of his back pain. R. 286.
On physical examination, Dr. Allen found the plaintiff has an antalgic gait. R.
268. However, the plaintiff’s ability to heel and toe walk was within normal limits,
and he was able to squat and bend over 50%. R. 268. Dr. Allen found the plaintiff
had paraspinal hypertrophy on the left, spasm of the left paraspinal muscles, and
thickening of the left musculature. R. 268.
Dr. Allen concluded his examination note with the following medical source
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It is my assessment that [plaintiff’s] episodic back pain could potentially
be prevented with a thorough tailored low back pain program,
strengthening with range of motion per physical therapy. Based on his
exam and history, he does not seem to have a surgically correctable
lesion. After his initial fall, he has two years of pain-free living
following an intense course of physical therapy. This would suggest
that these modalities might benefit him again. His HIV disease appears
to be stable and does not appear to be causing any marked limitations on
his activities of daily living or his ability to compete and perform in the
Dr. Allen also completed a physical capacities evaluation (PCE), on which he
indicated the plaintiff would be able to lift and/or carry “10 pounds occasionally or
less frequently.” R. 269. Dr. Allen indicated the plaintiff would be able to sit for a
total of eight hours, and stand/walk for a total of two hours, in an eight-hour workday.
R. 269. Dr. Allen limited the plaintiff to occasional bending and stooping. R. 269.
He limited the plaintiff to occasional pushing/pulling of arm and/or leg controls, and
occasional gross manipulation. R. 269. Dr. Allen also completed a form indicating
the plaintiff’s pain was “present to such an extent as to be distracting to adequate
performance of daily activities or work.” R. 270.
The plaintiff argues on appeal that the ALJ improperly based his RFC findings
on the opinion of a non-examining, non-medical source. Pl.’s Br. 7. He also argues
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there is no medical source statement in the file from any examining or reviewing
physician. Pl.’s Br. 7. Therefore, he argues the case must be remanded for a physical
capacity evaluation or medical source opinion statement from a treating or examining
source to support the ALJ’s RFC findings. Pl.’s Br. 9. These arguments are without
The ALJ expressly declined to give an assessment of the State agency disability
specialist’s opinion because it was completed by a non physician. R. 29. The
regulations require an ALJ to consider the opinions of State agency physicians and
psychologists. 20 C.F.R. § 404.1527(e)(2). But the findings of non-medical State
agency disability specialists are not considered to be opinion evidence at the ALJ
level. See Siverio v. Comm’r of Soc. Sec., 461 Fed. App’x 869, 871-72 (11th Cir.
2012) (unpublished) (finding an RFC form completed by a single decision maker is
not evidence at the ALJ level under POMS § DI 24510.050). Therefore, the ALJ
correctly concluded that no assessment of the disibility specialist’s RFC finding was
required. Even though the ALJ’s RFC closely tracks that of the disibility specialist,
the ALJ states that his RFC finding was based on his consideration of the evidence.
R. 27. Therefore, the ALJ did not improperly rely upon the opinion of the non-
medical State agency disibility examiner.
The POMS is a policy and procedural manual issued to help clarify the regulations for the
Social Security Administration field offices.
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The plaintiff’s argument that there must be a medical source statement from an
examining physician to support the ALJ’s RFC finding is without merit. In Green v.
Social Security Administration, the court found the ALJ had properly refused to credit
a Physical Capacities Evaluation (“PCE”) from claimant’s treating physician. 223 F.
App’x 915, 922-23 (11th Cir. 2007) (upublished). The court rejected claimant’s
argument that, without the PCE, there was nothing in the record upon which the ALJ
could base his RFC finding. Id. at 923. The court held that other evidence from the
plaintiff’s doctors (which did not contain a PCE or RFC assessment) was sufficient
to support the ALJ’s finding that the claimant could perform light work. Id. at 923-
24; see also Langley v. Astrue, 777 F Supp. 2d. 1250, 1258 (N.D. Ala. 2011)(holding
RFC is not a medical opinion and need not be based upon a doctor’s RFC opinion).
In the present case, there is other medical evidence in the record from treating and
examining doctor’s to support the ALJ’s RFC finding. That evidence included a
lumbar spine x-ray showing only early degenerative changes, numerous reports of no
pain by treating physicians, and largely normal findings on physical examination by
Dr. Touger. Therefore, an RFC opinion from a treating or examining source was not
required in the present case.
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Plaintiff next argues that the ALJ failed to properly consider his pain pursuant
to the Eleventh Circuit pain standard. In this circuit, “a three part ‘pain standard’ [is
applied] when a claimant seeks to establish disability through his or her own
testimony of pain or other subjective symptoms.” Foote v. Chater, 67 F.3d at 1560.
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it can
be reasonably expected to give rise to the alleged pain.
Id. (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). If an ALJ
discredits a claimant’s subjective complaints, he must give “explicit and adequate
reasons” for his decision. See id. at 1561-62. “A clearly articulated credibility
finding with substantial supporting evidence in the record will not be disturbed by a
reviewing court.” Id. at 1562. The ALJ’s credibility determination need not cite
“particular phrases or formulations,” as long as it enables the court to conclude that
the ALJ considered Plaintiff’s medical condition as a whole. See Dyer v. Barnhart,
395 F.3d 1206, 1210-11 (11th Cir. 2005) (citing Foote, 67 F.3d at 1561).
In the present case, the ALJ found the plaintiff had medically determinable
impairments that could reasonably be expected to cause his alleged symptoms.
However, he did not credit the plaintiff’s testimony of disabling back pain. The ALJ
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noted that treatment notes showed the plaintiff’s HIV was currently asymptomatic.
R. 28. He also concluded the treatment records showed the plaintiff’s back
impairment was not more limiting than the restrictions contained in his RFC finding.
R. 28. The ALJ specifically noted the plaintiff had reported a pain level of zero when
he saw Dr. Mobley on November 3, 2009. R. 29. The medical records show the
plaintiff reported a pain level of zero on a number of other visits to Dr. Mobley.
The ALJ noted the plaintiff’s statements to Dr. Neville, the consultative
psychological examiner, and the documents he submitted in connection with his
disability claim, “indicated that the claimant maintains his personal hygiene, does
housework, cooks several times a week, drives and uses public transportation, shops,
does errands, grows plants, reads, watches television, exercises, and attends church.”
R. 28. The ALJ found the plaintiff’s “wide range of recorded daily activities” was in
“marked contrast to [plaintiff’s] testimony that he ha[d] engaged in virtually no daily
activities since he filed his claim and reflect[ed] poorly on the credibility of such
testimony.” R. 28. The ALJ found the plaintiff’s allegation of disabling back pain
since 2001 was “refuted by the fact that he worked at a medium to heavy level of
exertion until long after 2001, i.e., until he stopped working in 2007.” R. 29.
The ALJ noted the x-ray of the plaintiff’s lumbar spine on July 28, 2008,
showed “only early degenerative changes.” R. 28. He also observed Dr. Touger’s
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findings on his examination “were largely normal (with the exception of some
limitation in the range of the claimant lumbar spinal motion, a limitation reflected in
the above-delineated assessment of the claimant’s residual functional capacity) and
did not support the claimant’s allegations.” R. 29.
The ALL properly applied the Eleventh Circuit pain standard and clearly
articulated his reasons for refusing to credit the plaintiff’s testimony. Those reasons
are supported by substantial evidence, and may not disturbed on appeal. Therefore,
plaintiff’s argument is without merit.
The plaintiff’s final argument is that the ALJ did not properly consider the
opinions of the consulting examiners. In determining how much weight to give to
each medical opinion, the ALJ must consider several factors including: (1) whether
the doctor has examined the plaintiff; (2) whether the doctor has a treating
relationship with the plaintiff; (3) the extent to which the doctor presents medical
evidence and explanation supporting his opinion; (4) whether the doctor's opinion is
consistent with the record as a whole; and (5) whether the doctor is a specialist.
C.F.R. §§ 404.1527(c), 416.927(c). Neither Dr. Touger nor Dr. Allen were treating
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The plaintiff argues that the ALJ improperly rejected Dr. Allen’s Physical
Capacity Evaluation (PCE) and clinical assessment of pain form. The ALJ gave little
weight to these assessments. R. 29. The ALJ found the form completed by Dr. Allen
was “contrary to the claimant’s medical record as a whole.” R. 29. The ALJ noted
Dr. Allen’s “findings regarding the claimant’s level of pain specifically contradict the
objective medical evidence of the claimant’s treating physician on November 3,
2009,” which indicated a pain level of zero. R. 29. The ALJ further found Dr.
Allen’s conclusions concerning the plaintiff’s work related abilities were unsupported
by the objective findings in Dr. Allen’s report of his examination. R. 29. The ALJ
noted Dr. Allen found “a full range of motion and full strength in the claimant’s upper
and lower extremities” and no”sensory or reflex deficits.” R. 29. The ALJ also cited
Dr. Allen’s “own notation that there was no MRI or x-ray evidence substantiating the
claimant’s allegation of lower back pain.” R. 29. The ALJ ended his discussion of
Dr. Allen’s report as follows:
The discontinuity between Dr. Allen’s findings and his conclusions is
rather striking: to cite but one example, although Dr. Allen opined that
the claimant can only occasionally engage in gross manipulation, his
examination findings concerning the claimant’s upper extremity
function and strength are entirely normal. It appears clear that Dr.
Allen’s stated opinion concerning the claimant’s work-related functional
abilities was based in significant part upon an uncritical acceptance of
the claimant’s subjective, unsupported and evidentiarily-refuted
allegations. Little weight is accordingly given to the opinions and
assessment of Dr. Allen.
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The ALJ’s decision shows he carefully considered Dr. Allen’s opinions, and
chose not to credit them. The reasons given for rejecting those opinions are in
accordance with the proper legal standard and supported by substantial evidence.
The plaintiff also argues that the ALJ ignored the findings of Dr. Touger.
However, the ALJ specifically stated that his RFC finding reflected Dr. Touger’s
finding of a reduced range of motion. R. 28-29. The ALJ also found Dr. Touger’s
physical examination was largely normal otherwise. R. 28-29. The only specific
medical opinion of Dr. Touger cited by the plaintiff was his statement that the
plaintiff “probably does have a lesion that would be amenable to surgery to get him
back to full function.” Pl.’s Br. 10. This opinion was contradicted by Dr. Allen, who
opined the plaintiff “does not seem to have a surgically correctable lesion.” R. 268.
Therefore, the court finds the ALJ properly considered Dr. Touger’s findings and
opinions in his decision.
The court concludes the ALJ’s determination that the plaintiff is not disabled
is supported by substantial evidence, and that the ALJ applied the proper legal
standards in arriving at this decision. Accordingly, the Commissioner’s final decision
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is due to be affirmed. An appropriate order will be entered contemporaneously
DONE and ORDERED this 19th day of September, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge