JOHN E. OTT, Magistrate Judge.
Plaintiff Mark E. Hill brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Acting Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits and supplemental security income. (Doc. 1).
Plaintiff was 43 years old at the time of the administrative hearing before the Administrative Law Judge ("ALJ"). (R. 33).
In May 1997, Plaintiff sustained a compound right ankle fracture in a motor vehicle accident. (R. 230, 391). The fracture required repeat surgeries. (R. 230-34). Plaintiff ultimately developed an infection requiring debridement and hardware removal in July 2003. (R. 391). The wound required additional debridement in December 2003 and April 2004. (R. 236, 391).
Plaintiff also underwent surgery for a herniated disc in October 2000. (R. 349). He underwent re-exploration surgery and a microlaminectomy in January 2001. (R. 340).
Plaintiff protectively filed applications for disability insurance benefits and supplemental security income on August 17, 2010, alleging disability beginning August 15, 2003, due to right leg pain and ankle pain. (R. 14, 98-109, 146). His claim was denied initially. (R. 51-54). Plaintiff then requested an administrative hearing, which was held on April 16, 2012. (R. 29-50). Plaintiff was represented by counsel at the hearing. (R. 31). The ALJ concluded that the Plaintiff was not disabled. (R. 23).
Plaintiff requested the Appeals Council to review the ALJ's decision. (R. 7). The Appeals Council declined Plaintiff's request for review on May 3, 2013. (R. 1-6). On that date, the ALJ's decision became the final decision of the Commissioner. Plaintiff then filed this action for judicial review under 42 U.S.C. § 405(g), asserting that the findings of the Commissioner are not based upon substantial evidence and that improper legal standards were applied. (Doc. 1).
The court's review of the Commissioner's decision is narrowly circumscribed. The function of the court is to determine whether the decision of the Commissioner is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This court must "scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. It is "more than a scintilla, but less than a preponderance." Id.
The court must uphold factual findings that are supported by substantial evidence. However, it reviews the ALJ's legal conclusions de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining the proper legal analysis has been conducted, it must reverse the ALJ's decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
To qualify for disability benefits and establish his or her entitlement for a period of disability, a claimant must be disabled as defined by the Social Security Act and the Regulations promulgated thereunder.
The Regulations provide a five-step process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999); 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 work, the burden shifts to the [Commissioner] to show that the claimant can perform some other job." Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further show that such work exists in the national economy in significant numbers. Id.
After consideration of the entire record before him and application of the sequential evaluation process, the ALJ made the following findings:
The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through March 31, 2005, and that he had not engaged in substantial gainful activity since August 15, 2003, the alleged onset date of his disability. (R. 17).
The ALJ found that Plaintiff has the severe impairments of status post back and right ankle surgery, but that he does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 17-18).
The ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform a range of sedentary work, subject to the following limitations: he can never climb ladders, ropes, or scaffolds; he can never work around hazards; he should avoid concentrated exposure to extreme cold; and he can never operate foot controls with his right lower extremity.
The ALJ found that Plaintiff has past relevant work as a golf course laborer, but is unable to return to his past work. (R. 21). Based on the testimony of a vocational expert, the ALJ concluded that, considering Plaintiff's age, education, work experience, and RFC, there are a significant number of jobs in the national economy that Plaintiff can perform. (R. 21-22, 46-47). The ALJ thus concluded that Plaintiff is not disabled. (R. 23).
Plaintiff argues that the ALJ's RFC finding is not supported by substantial evidence. (Doc. 13 at 6). He asserts that in the absence of a medical source opinion ("MSO"), there is no substantial evidence to support the RFC finding "particularly with regard to the use of a footstool," which he contends "would not accommodate the more significant limitations the ALJ maintained he was assessing and would not provide relief based on Plaintiff's testimony."
After reviewing the record, the court agrees that there is insufficient evidence in the record to support the ALJ's determination that allowing Plaintiff to elevate his right lower extremity to footstool level would sufficiently alleviate the pain and swelling in his ankle and leg to enable him to perform sedentary work. The court thus concludes that the case should be remanded for further proceedings and, if necessary, further development of the record with respect to that issue.
An RFC is an "individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis ... [which] means 8 hours a day for 5 days a week, or an equivalent work schedule." SSR 96-8p, 1996 WL 374184 (July 2, 1996). It "involves determining the claimant's ability to do work in spite of his [or her] impairments in consideration of all relevant evidence." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the responsibility of the Commissioner to determine a claimant's RFC. See Robinson v. Astrue, 3605 F. App'x 993, 999 (11th Cir. 2010) (stating 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").
The ALJ has a duty to develop the record fully and fairly. Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999). However, an ALJ is not required to seek a doctor's assessment of a claimant's RFC; to do so would "confer upon the treating source the authority to make the determination or decision about whether an individual is under a disability, and thus would be an abdication of the Commissioner's statutory responsibility to determine whether an individual is disabled." SSR 96-5p, 1996 WL 374183 (July 2, 1996). Likewise, the ALJ does not have to order a consultative examination or medical expert testimony unless the record contains insufficient evidence from which the ALJ can make an informed decision. See Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001); 20 C.F.R. § 404.1519a.
As noted, the ALJ found that Plaintiff has the RFC to perform a range of sedentary work with the restriction, among others, that he be allowed "to elevate his right lower extremity to the level of a foot stool as needed throughout the day." (R. 18). In making this finding, the ALJ referenced Plaintiff's testimony that he "occasionally is unable to stand more than 15-20 minutes and requires elevating his leg at times to reduce swelling and pain." (R. 19). Plaintiff's specific testimony at the hearing was as follows:
(R. 41-44).
Although the ALJ determined that, in general, Plaintiff's statements concerning his impairments and their impact on his ability to work were "not entirely credible" (R. 19), the ALJ gave "some weight" to Plaintiff's testimony of swelling in his ankle and relatively consistent pain. (R. 20). It is also apparent that the ALJ gave some credibility to Plaintiff's testimony about the need to elevate his leg to relieve the pain and swelling, because he included in his RFC assessment the express limitation that Plaintiff be allowed to elevate his right lower extremity to the level of a footstool. Put another way, inherent in the ALJ's RFC finding is the recognition that Plaintiff experiences pain and swelling in his ankle and leg and needs to be able to alleviate the pain and swelling in order to perform sedentary work. The ALJ determined that allowing Plaintiff to elevate his leg to the level of a footstool would provide sufficient relief to enable him to work.
The record, however, contains no medical or other evidence that such an accommodation would sufficiently reduce the pain and swelling in Plaintiff's right ankle and leg to allow him to work. As noted above, Plaintiff did not testify that he elevates his leg on a footstool to reduce the pain and swelling; rather, he testified that he usually puts two pillows on the end of a couch and then places his leg on the two pillows, which would elevate his leg to a much higher level than propping it up on a footstool. When questioned by his attorney, Plaintiff testified that he usually spends five hours a day lying on the couch with his leg elevated in this manner. Even assuming that the ALJ did not find this testimony to be entirely credible, there is no corresponding testimony or other evidence in the record to the effect that Plaintiff need only elevate his leg to a footstool level to obtain relief from his ankle pain and swelling. In this regard, the court notes that Dr. A. Philip Badewa, the consultative physician who examined Plaintiff in September 2010, confirmed that Plaintiff is suffering from "pain in joint, ankle and foot," but did not address the measures Plaintiff should take to alleviate the pain. (See R. 312-14). He certainly did not opine on the height to which Plaintiff would need to elevate his leg to obtain relief from the pain.
The height to which Plaintiff needs to be able to elevate his leg is critical to the ultimate issue of whether Plaintiff is disabled. Again, the ALJ found that Plaintiff has the RFC to perform a range of sedentary work but only if he can elevate his right lower extremity to the level of a footstool as needed throughout the day. Based on the testimony of the vocational expert, the ALJ further found that there are a significant number of sedentary, unskilled jobs Plaintiff can perform considering his age, education, work experience, and RFC. In making this finding, the ALJ stated that the vocational expert "testified that based upon his experience[,] elevating the lower extremity would not preclude" performance of the jobs the vocational expert had identified. (R. 22). The vocational expert's testimony, however, was not that clear.
At the hearing, the ALJ first asked the vocational expert if there was any work that could be performed by an individual with the same age, education, and work background as Plaintiff who was limited to sedentary work and should never climb ladders, ropes, or scaffolds, should never work around hazards, should avoid concentrated exposure to extreme cold, and should never operate foot controls with his right lower extremity. (R. 46). The vocational expert identified the jobs of medical productions worker, table worker, and optical goods assembler. (R. 46-47). The ALJ then modified his hypothetical as follows:
(R. 47) (emphasis added). Due to the nature of the ALJ's questions, it is unclear whether the vocational expert was of the opinion that performance of the jobs he had identified would not be precluded no matter how high the individual needed to elevate his leg during the day or for how long. He testified that the jobs would not be affected if the individual required the ability to elevate his right lower extremity to footstool level "as needed throughout the day," but that there would be no work for the individual if he required the ability to elevate his lower extremity to waist high or higher "for more than half the day." (Id.) Based on this testimony, it is unclear whether there would be work for an individual who needed to elevate his lower extremity to waist high or higher but did not need to do so for more than half the day. If the individual required the ability to elevate his lower extremity to waist high or higher "as needed throughout the day," would he be precluded from performing the jobs identified by the vocational expert? It is impossible to tell from the vocational expert's testimony.
In sum, the ALJ's RFC finding is based on the (unstated) premise that allowing Plaintiff to elevate his right lower extremity to footstool level would sufficiently reduce the pain and swelling in his ankle and leg to enable him to perform sedentary work. After a thorough review of the record, the court concludes that there is insufficient evidence in the record to make that determination. Plaintiff did not testify that elevating his leg on a footstool would provide him with the relief he needs, and no treating or consultative physician has so opined. Although the court recognizes that an ALJ is not required to obtain a physician's assessment of a claimant's RFC or to order medical expert testimony before making an RFC finding, the ALJ does have a duty to develop a full and fair record and there must be sufficient evidence in the record as a whole for the ALJ to make a determination. Here, Plaintiff testified that he is able to reduce the pain and swelling in his ankle and leg by lying on a couch with his leg propped up on two pillows. He said that he probably spends five hours a day with his leg elevated in this manner. There is no other evidence in the record regarding the relief Plaintiff is able to obtain from elevating his leg. If the ALJ did not find Plaintiff's testimony on this issue to be wholly or even partially credible, he could not simply assume that Plaintiff would get the same relief by elevating his leg to just footstool level. There needed to be evidence in the record to support such a finding, whether it came from the medical records, the testimony of a treating or consultative physician, or other credible source. Because there is no such evidence in the record, the case is due to be remanded for further development of the record, which may require further examination by the consultative physician and further testimony from the vocational expert.
For the reasons set forth above, the undersigned finds that the decision of the Commissioner is due to be
