United States District Court, S.D. Alabama, Southern Division
F. BIVINS, UNITED STATES MAGISTRATE JUDGE
Troy Crandall Wimberley (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 23, 2018, the parties
consented to have the undersigned conduct any and all
proceedings in this case. (Doc. 16). 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 Civil Procedure 73. (Doc.
17). Upon careful consideration of the administrative record
and the memoranda of the parties, it is hereby
ORDERED that the decision of the
Commissioner be AFFIRMED.
protectively filed his application for benefits on March 26,
2015. (Doc. 10-5 at 2). Subsequently, he filed an application
for benefits on March 30, 2015, alleging disability beginning
February 7, 2014, based on lower back and neck disorders and
spina bifida. (Id. at 4, 8; Doc. 10-6 at 15).
Plaintiff's application was denied and upon timely
request, he was granted an administrative hearing before
Administrative Law Judge Ben E. Sheely (hereinafter
“ALJ”) on November 22, 2016. (Doc. 10-2 at 41;
Doc. 10-4 at 2). Plaintiff, who was represented by counsel,
appeared by video from Evergreen, Alabama at the hearing and
provided testimony related to his claims. (Doc. 10-2 at 12,
44-59). A vocational expert (“VE”) also appeared
at the hearing and provided testimony. (Id. at
59-62). On February 9, 2017, the ALJ issued an unfavorable
decision finding that Plaintiff is not disabled.
(Id. at 9). The Appeals Council denied
Plaintiff's request for review on October 24, 2017.
(Id. at 2). Therefore, the ALJ's decision dated
February 9, 2017, became the final decision of the
exhausted his administrative remedies, Plaintiff timely filed
the present civil action. (Doc. 1). Oral argument was
conducted on November 27, 2018, and the parties agree that
this case is now ripe for judicial review and is properly
before this Court pursuant to 42 U.S.C. §§ 405(g)
Issues on Appeal
1. Whether the ALJ reversibly erred by failing to
weigh all the medical evidence of record and failing to state
the particular weight he gave different medical opinions and
the reasons therefor?
2. Whether the ALJ erred in failing to develop a full
and fair record by ordering a consultative orthopedic
3. Whether the ALJ erred by failing to adequately
evaluate Plaintiff's subjective complaints of
was born on September 9, 1971, and was forty-five years of
age at the time of his administrative hearing on November 22,
2016. (Doc. 10-2 at 44; Doc. 10-5 at 8). Plaintiff has a
tenth or eleventh grade education and can read and write.
(Doc. 10-2 at 44; Doc. 10-6 at 16). Plaintiff last worked
from 2010 to February 2014 at Walmart, first in the garden
center, then in sporting goods, and finally in security.
(Doc. 10-2 at 45-46; Doc. 10-6 at 5, 33). Plaintiff was
terminated from that job due to poor job performance, which
he attributed to his physical condition. (Doc. 10-2 at 47;
Doc. 10-6 at 15). Prior to that, Plaintiff prepared concrete
pipes from 2006 to 2008 and worked as a wood stacker at a
sawmill from 2005 to 2006. (Doc. 10-2 at 46- 47; Doc. 10-6 at
33). From 1999 to 2005, Plaintiff worked as a barge crane and
forklift operator. (Doc. 10-2 at 47; Doc. 10-6 at 33).
hearing, Plaintiff testified he is no longer able to perform
his security job because of pain in his lower back, neck, and
legs. (Doc. 10-2 at 47). His medical treatment for neck and
lower back problems has consisted of taking medications,
physical therapy, and multiple injections. (Id. at
48-50; Doc. 10-7 at 46, 50, 60, 64). Plaintiff also reported
headaches, which have been treated with medication, including
Topamax and Trokendi. (Doc. 10-2 at 58; Doc. 10-7 at 128).
Standard of Review
reviewing claims brought under the Act, this Court's role
is a limited one. The Court's review is limited to
determining (1) whether the decision of the Commissioner is
supported by substantial evidence and (2) whether the correct
legal standards were applied. Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990). A court may not decide the
facts anew, reweigh the evidence, or substitute its judgment
for that of the Commissioner. Sewell v. Bowen, 792
F.2d 1065, 1067 (11th Cir. 1986). 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). “Substantial evidence is
more than a scintilla, but less than a preponderance”
and consists of “such relevant evidence as a reasonable
person would accept as adequate to support a
conclusion.” Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983). In determining whether
substantial evidence exists, a reviewing court must consider
the record as a whole, taking into account evidence both
favorable and unfavorable to the Commissioner's decision.
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986)
(per curiam); Short v. Apfel, 1999 U.S. Dist. LEXIS
10163, at *4 (S.D. Ala. June 14, 1999).
Statutory and Regulatory Framework
individual who applies for Social Security disability
benefits must prove his or her disability. 20 C.F.R.
§§ 404.1512, 416.912. Disability is defined 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 12 months[.]” 42 U.S.C. §
423(d)(1)(A); see also 20 C.F.R. §§
404.1505(a), 416.905(a). The Social Security regulations
provide a five-step sequential evaluation process for
determining whether a claimant has proven his or her
disability. See 20 C.F.R. §§ 404.1520,
claimant must first prove that he or she is not engaged in
substantial gainful activity. Carpenter v. Comm'r of
Soc. Sec., 614 Fed.Appx. 482, 486 (11th Cir. 2015) (per
curiam). The second step requires the claimant to prove that
he or she has a severe impairment or combination of
impairments. Id. 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 found disabled regardless of age, education, or
work experience. Id. If the claimant cannot prevail
at the third step, the ALJ must determine the claimant's
residual functional capacity (“RFC”) before
proceeding to step four. Id. A claimant's RFC is
an assessment, based on all relevant medical and other
evidence, of a claimant's remaining ability to work
despite his or her impairments. Lewis v. Callahan,
125 F.3d 1436, 1440 (llth Cir. 1997). Once a claimant's
RFC is determined, the evaluation proceeds to the fourth
step, where the claimant must prove an inability to perform
his or her past relevant work. Carpenter, 614
Fed.Appx. at 486.
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 is capable of engaging in another kind
of substantial gainful employment which exists in significant
numbers in the national economy, given the claimant's
RFC, age, education, and work history. Sryock v.
Heckler, 764 F.2d 834, 836 (11th Cir. 1985) (per
curiam). If the Commissioner can demonstrate that there are
such jobs the claimant can perform, the burden then shifts
back to the claimant to prove his or her inability to perform
those jobs in order to be found disabled. Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing
Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir.
The ALJ's Findings
case sub judice, the ALJ found that Plaintiff has
the severe impairments of degenerative disc disease and
degenerative joint disease. (Doc. 10-2 at 14). The ALJ also
found that Plaintiff's headaches are non-severe because
they cause no more than a minimal limitation in
Plaintiff's ability to perform basic work activities.
(Id. at 14-15). The ALJ found that Plaintiff's
impairments, when considered individually and in combination,
do not meet or medically equal any of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925, and 416.926). (Id. at 15). The ALJ further
found that Plaintiff has the RFC to perform light work as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),
with the following additional limitations: Plaintiff can
occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl, and he can never climb ladders, ropes, or
scaffolds. (Id.). The ALJ concluded that Plaintiff
is able to perform his past relevant work as a security
guard, cashier, and barge crane operator, and that there are
also other jobs in the national economy that he is able to
perform, such as airline security representative and poultry
dresser. (Id. at 18-19). Thus, the ALJ found that
Plaintiff is not disabled. (Id. at 19).
The ALJ properly weighed and discussed the medical evidence
of record, and substantial evidence supports the ALJ's
Residual Functional Capacity for a range of light work with
the stated restrictions.
argues that the ALJ failed to properly weigh all the medical
evidence of record and to state with particularity the weight
he gave to different medical opinions provided in this case
and the reasons therefor. (Doc. 12 at 6). The Commissioner
counters that Plaintiff's arguments fail because he has
not shown that the ALJ's findings as to his functional
limitations were not supported by substantial evidence. (Doc.
13 at 5). Based on a careful review of the record, the Court
finds that Plaintiff's arguments are without merit.
record reflects that on November 10, 2014, Plaintiff
presented for treatment to his family medicine physician, Dr.
Charles M. Eddins, M.D. (Doc. 10-7 at 18). Plaintiff reported
neck pain and low back pain and radiating symptoms.
(Id.). On November 17, 2014, Dr. Eddins noted that
Plaintiff's lumbosacral spine x-rays showed severe
degenerative changes at ¶ 5-S1, while his cervical spine
x-rays were within normal limits. (Id. at 17).
Eddins referred Plaintiff to William J. Bose, M.D., an
orthopedist, who saw Plaintiff on two occasions. (See
id. at 10-13, 17). Dr. Bose sent Plaintiff for cervical
and lumbar spine MRIs on December 10, 2014. (Id. at
13). Plaintiff's cervical spine MRI was negative, while
his lumbar spine MRI revealed discogenic disease at ¶
5-S1 including a small central broad-based protrusion, and
left asymmetric bulging laterally encroaching on the exiting
L5 nerve root, as well as mild facet arthropathy.
(Id. at 5-6). Dr. Bose assessed Plaintiff with
cervical pain/cervicalgia, lumbar degenerative disc disease,
and occipital neuralgia and recommended referral to a
neurologist for work up and treatment of occipital neuralgia.
(Id. at 10-11).
January 6, 2015, Plaintiff was examined by Donald R. Tyler,
M.D., a neurosurgeon at Coastal Neurological Institute, for
complaints of neck pain, bilateral arm pain, bilateral arm
and hand numbness, low back pain, and left leg pain and
numbness. (Id. at 37). Dr. Tyler diagnosed Plaintiff
with low back pain, cervicalgia, and lumbar and cervical
degenerative disc disease. (Id. at 40).
Tyler's request, Plaintiff first presented to Jonathan C.
Rainer, M.D. at Coastal Neurological Institute on January 14,
2015. (Id. at 52). This was the beginning of a
treatment relationship that would involve frequent visits and
last more than a year. At the initial visit, Dr. Rainer
diagnosed Plaintiff with myalgia/arthromyalgia/myositis,
cervicalgia, lumbar spine degenerative disc disease,
unspecified musculoskeletal disorder of the neck, and low
back pain. (Id. at 56). Dr. Rainer prescribed
Gabapentin and Tizanidine and noted there were no surgical
plans. (Id.). He recommended an epidural steroid
injection for Plaintiff's lumbar pain and physical
therapy and medication changes for Plaintiff's
“myofascial cervical symptoms and facet generated
pain[.]” (Id.). In March 2015, after Plaintiff
reported continuing lower back and neck pain with radicular
symptoms, Dr. Rainer recommended a right occipital
block and ordered physical therapy.
(Id. at 42, 45-46). The next month, Plaintiff told
Dr. Rainer that his right occipital block had provided
partial relief for a few days before his radicular cervical
spine pain returned. (Id. at 70).
had MRIs of the lumbar spine, cervical spine, and brain done
on May 20, 2015. (Id. at 86-89). The lumbar spine
MRI showed Grade 1 retrolisthesis at ¶ 5 on S1 and a
right paracentral disc osteophyte complex with facet
arthropathy and mild bilateral neuroforaminal stenosis.
(Id. at 87). The MRI of the cervical spine showed no
acute findings, but the brain MRI showed minimal pansinusitis
and scattered foci of increased intensity on FLAIR within the