Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FRANK JOSEPH WRIGHT, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 23-0383-MU
)
LELAND DUDEK, Acting )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Plaintiff Frank Joseph Wright brings this action, pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social
Security (“the Commissioner”) denying his claim for a period of disability and Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”) and for
Supplemental Security Income (“SSI”), based on disability, under Title XVI of the Act.
The parties have consented to the exercise of jurisdiction by the Magistrate Judge,
pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Doc. 5 (“In accordance
with the provisions of 28 U.S.C. 636(c) and Fed. R. Civ. P. 73, the parties in this case
consent to have a United States Magistrate Judge conduct any and all proceedings in
this case, … order the entry of a final judgment, and conduct all post-judgment
proceedings.”)). See also Doc. 6. Upon consideration of the administrative record,
Wright’s brief, the Commissioner’s brief, and oral argument presented at the February
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27, 2024 hearing before the undersigned Magistrate Judge, the Court determines that
the Commissioner’s decision denying benefits should be affirmed.1
I. PROCEDURAL HISTORY
Wright applied for a period of disability and DIB, under Title II of the Act, 42
U.S.C. §§ 423-425, and for SSI, based on disability, under Title XVI of the Act, 42
U.S.C. §§ 1381-1383d, on August 19, 2021, alleging disability beginning on October 19,
2017. (PageID. 314-15). He later amended his alleged onset date at his first hearing to
May 1, 2021. (PageID. 75). His application was denied at the initial level of
administrative review on December 15, 2021 and, upon reconsideration, on May 5,
2022. (PageID. 111-140). On May 5, 2022, Wright requested a hearing by an
Administrative Law Judge (ALJ). (PageID. 183-84). On November 10, 2022, Wright
appeared at a hearing before ALJ Ben Sheely and, on April 6, 2023. He appeared at
another hearing before ALJ Sheely. (PageID. 73-80; 56-72). On April 13, 2019, the ALJ
issued an unfavorable decision finding that Wright was not under a disability during the
applicable time period. (PageID. 28-48). Wright appealed the ALJ’s decision to the
Appeals Council, and, on September 15, 2023, the Appeals Council denied his request
for review of the ALJ’s decision, thereby making the ALJ’s decision the final decision of
the Commissioner. (PageID. 22-28).
After exhausting his administrative remedies, Wright sought judicial review in this
Court, pursuant to 42 U.S.C. § 405(g). (Doc. 1). The Commissioner filed the social
1 Any appeal taken from this Order and Judgment shall be made to the Eleventh Circuit
Court of Appeals. See Doc. 5. (“An appeal from a judgment entered by a Magistrate
Judge shall be taken directly to the United States Court of Appeals for the judicial circuit
in the same manner as an appeal from any other judgment of this district court.”).
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security transcript on December 11, 2023. (Doc. 8). Both parties filed briefs setting forth
their respective positions. (Docs. 9, 10). Oral argument was held before the
undersigned Magistrate Judge on February 27, 2024. (Doc. 14).
II. CLAIM ON APPEAL
On appeal, Wright claims that the ALJ erred by failing to properly consider his
use of an assistive device and, therefore, the ALJ’s residual functional capacity (RFC)
determination was not supported by substantial evidence. (Doc. 9 at p. 2; PageID. 726).
III. BACKGROUND FACTS
Wright, whose date of birth is December 3, 1967, was 53 years old at the time of
onset and 55 years old on the date of his hearing before the ALJ. (PageID. 60, 314).
Wright initially alleged disability, commencing on May 1, 2021, due to heart disease,
degenerative disc disease and herniated disc, bipolar 1, high blood pressure,
depression, and diabetes. (PageID. 355). The date he was last insured was December
31, 2022. (PageID. 33). Wright earned his GED in May of 1988 and completed CDL
truck driving school in May of 1991. (PageID. 356). He has worked as a truck driver and
warehouse worker, but stopped working in October of 2017, due to his health
conditions. (PageID. 355-56). He lives with his mother in her home. (PageID. 61).
According to the Function Report that was completed on Wright’s behalf on October 27,
2021, on a typical day, he takes his medication, takes care of his personal hygiene,
prepares simple meals, like frozen dinners or canned soup, and watches television.
(PageID. 374-76). He does the laundry and mows the yard; he goes outside once or
twice a week; he can drive a car, but does not go out alone because of his blood sugar
issue; he goes grocery shopping about once per month; he plays the guitar once or
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twice a week for short periods; and he goes out to eat or to his daughter’s house once
or twice a month. (PageID. 375-78). At the hearing, he testified that he is unable to work
because of his lifting restriction and because he has to change position regularly from
sitting to standing and back every 20 minutes because of the pain in his right SI joint.
(PageID. 62-63, 65). He testified that his pain averages a six daily. (Id.). He is also
limited by his diabetes and heart disease, post triple bypass surgery in 2011. (PageID.
64). He testified that he started using a cane in spring or early summer of 2021 because
his leg was giving out and he was losing balance. (PageID. 67).
IV. ALJ’S DECISION
After conducting two hearings, the ALJ determined that Wright was not under a
disability at any time from October 19, 2017, through the date of the decision, April 18,
2023, and thus, was not entitled to benefits. (PageID. 42). In his decision, the ALJ first
determined that Wright’s date last insured (“DLI”) was December 31, 2022. (PageID.
33). He next began the process of applying the five-step sequential evaluation to
Wright’s claim. At step one, the ALJ found that Wright had not engaged in substantial
gainful activity (“SGA”) since October 19, 2017. (PageID. 34). Therefore, he proceeded
to an evaluation of steps two and three. The ALJ found that Wright had the following
severe impairments: lower back, diabetes, and obesity, but did not have an impairment
or combination of impairments that met or medically equaled the severity of a listed
impairment. (PageID. 34-35). After considering the entire record, the ALJ concluded that
Wright had the RFC to perform the full range of medium work. (PageID. 37-40). After
setting forth his RFC, the ALJ determined that Wright was capable of performing past
relevant work as a warehouse worker and a tractor truck driver. (PageID. 40-41). The
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ALJ made an alternative finding that, in addition to his past relevant work, there were
also other jobs that existed in significant numbers in the national economy that Wright
could perform. (Id.). Accordingly, the ALJ found that Wright was not disabled within the
meaning of the Act from October 19, 2017, through the date of the decision, which was
April 18, 2023. (PageID. 42).
V. DISCUSSION
Eligibility for DIB and SSI benefits requires that the claimant be disabled. 42
U.S.C. §§ 423(a)(1)(E),1382(a)(1)-(2). “For DIB claims, a claimant is eligible for benefits
where she demonstrates disability on or before the [date last insured].” Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). A claimant is disabled if the claimant 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 12
months.” 42 U.S.C. §§ 423(d)(1)(A). The impairment must be severe, making the
claimant unable to do the claimant’s previous work or any other substantial gainful
activity that exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§
404.1505-11. “Substantial gainful activity means work that … [i]nvolves doing significant
and productive physical or mental duties [that] [i]s done (or intended) for pay or profit.”
20 C.F.R. § 404.1510.
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation in
determining whether the claimant is disabled:
(1) whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether the severe
impairment meets or equals an impairment in the Listing of Impairment in the
regulations; (4) if not, whether the claimant has the RFC to perform her past
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relevant work; and (5) if not, whether, in light of the claimant’s RFC, age,
education and work experience, there are other jobs the claimant can perform.
Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 870 (11th Cir. 2012) (per curiam)
(citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v. Barnhart,
357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the burden
of proving the first four steps, and if the claimant does so, the burden shifts to the
Commissioner to prove the fifth step. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999).
If the claimant appeals an unfavorable ALJ decision, the reviewing court must
determine whether the Commissioner’s decision to deny benefits was “supported by
substantial evidence and based on proper legal standards.” Winschel v. Comm’r of Soc.
Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations omitted); see 42 U.S.C. § 405(g).
“Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Winschel, 631
F.3d at 1178 (citations omitted). “In determining whether substantial evidence exists,
[the reviewing court] must view the record as a whole, taking into account evidence
favorable as well as unfavorable to the [Commissioner’s] decision.” Chester v. Bowen,
792 F.2d 129, 131 (11th Cir. 1986). The reviewing court “may not decide the facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].” Id.
When a decision is supported by substantial evidence, the reviewing court must affirm
“[e]ven if [the court] find[s] that the evidence preponderates against the Secretary’s
decision.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
As noted above, Wright claims that the ALJ erred by rejecting medical evidence
indicating that he needs to walk with a cane to prevent falls because his leg gives out
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unpredictably and further erred by not including the limitations arising from his use of a
cane in his RFC. Wright argues that the ALJ’s RFC determination, therefore, was not
supported by substantial evidence. (Doc. 9, PageID. 727-28).
A claimant’s RFC is “an assessment of an individual’s ability to do sustained
work-related physical and mental activities in a work setting on a regular and continuing
basis.” SSR 96-8p, 1996 WL 374184, at *1. It is an “administrative assessment of the
extent to which an individual’s medically determinable impairment(s), including any
related symptoms, such as pain, may cause physical or mental limitations or restrictions
that may affect his or her capacity to do work-related physical and mental activities.”
SSR 96-8p, 1996 WL 374184, at *2. It represents the most, not the least, a claimant can
still do despite his or her limitations. 20 C.F.R. § 404.1545; SSR 96-8p, 1996 WL
374184, at *2. The RFC assessment is based on “all of the relevant medical and other
evidence.” 20 C.F.R. § 404.1545(a)(3). In assessing a claimant’s RFC, the ALJ must
consider only limitations and restrictions attributable to medically determinable
impairments, i.e., those that are demonstrable by objective medical evidence. SSR 96-
8p, 1996 WL 374184, at *2. Similarly, if the evidence does not show a limitation or
restriction of a specific functional capacity, the ALJ should consider the claimant to have
no limitation with respect to that functional capacity. Id. at *3.
It is well-settled that the ultimate responsibility for determining a claimant’s RFC,
in light of the evidence presented, is reserved to the ALJ, not to the claimant’s
physicians or other experts. See 20 C.F.R. § 404.1546. “[T]he ALJ will evaluate a
[physician’s] statement [concerning a claimant’s capabilities] in light of the other
evidence presented and the ultimate determination of disability is reserved for the ALJ.”
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Green v. Soc. Sec. Admin., 223 F. App’x 915, 923 (11th Cir. 2007); see also Pritchett v.
Colvin, Civ. A. No. 12-0768-M, 2013 WL 3894960, at *5 (S.D. Ala. July 29, 2013)
(holding that “the ALJ is responsible for determining a claimant’s RFC”). “To find that an
ALJ’s RFC determination is supported by substantial evidence, it must be shown that
the ALJ has ‘provide[d] a sufficient rationale to link’ substantial record evidence ‘to the
legal conclusions reached.’” Jones v. Colvin, CA 14-00247-C, 2015 WL 5737156, at *23
(S.D. Ala. Sept. 30, 2015) (quoting Ricks v. Astrue, No. 3:10-cv-975-TEM, 2012 WL
1020428, at *9 (M.D. Fla. Mar. 27, 2012) (internal quotation marks and citations
omitted)).
Wright specifically claims that the ALJ did not account for his need to use a cane
or other assistive device to ambulate in the assigned RFC, which was assessed to be
the full range of medium work. (Doc. 9). In the October 27, 2021 Function Report, which
was completed on his behalf by Adrianne Jackson, she stated that, even though not
“prescribed by a doctor,” Wright uses a cane “when walking anywhere.” (PageID. 379).
At the hearing conducted by the ALJ on April 6, 2023, Wright testified that he started
using a cane when walking in about the spring of 2021 because his leg was giving out
causing him to lose balance. (PageID. 67).
A review of the medical records indicates that up until March of 2022, Wright
presented to various medical providers without a cane or any other type of assistive
device. However, on March 16 2022, he presented to the USA Neurosurgery Clinic
reporting a history of low back pain that had progressively worsened since a motor
vehicle accident in January of 2020 and at that time Wright described the pain as “a
sharp, constant electrical shock-type pain that originates in his mid-line low back, shoots
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across his bilateral hips, and radiates down his right leg to his knee.” (PageID. 651). He
endorsed numbness and tingling of his right buttock and thigh and increased gait
imbalance with difficulty ambulating, “requiring him to adopt the use of a cane several
months ago.” (Id.). On physical exam, Dr. Ashley Kern noted that Wright had a limp or
abnormal gait due to pain while walking with cane assistance. (Id.). Other abnormal
findings on physical exam were mild lumbosacral spine tenderness to palpation, hip
flexion was 4/5 on both right and left, and leg extension was 4/5 on both right and left.”
(PageID. 652). Dr. Kern assessed Wright with lumbar radiculopathy and referred him to
6 weeks of PT, prescribed medication for muscle spasms, and ordered an MRI of the
lumbar spine. (PageID. 653). Dr. Kern did not prescribe an assistive device and did not
comment on whether one was needed or recommended, but did note that Wright had
an abnormal gait even with the use of a cane.
Wright was again seen at the USA Neurosurgery Clinic on September 19, 2022
by Physician’s Assistant Kathryn Convey, at which time he reported continued midline
sharp low back pain radiating to the right leg. (PageID. 686). Wright further stated that
he had difficulty standing or sitting in one position for more than a few minutes and told
PA Convey that he had started using a cane about one year prior because of the
sensation of his right leg collapsing occasionally when he walked. (Id.). He reported that
his symptoms were causing difficulties with his activities of daily living, including driving.
(Id.). Upon physical exam, PA Convey noted that his gait was intact with the use of a
straight cane; he had pain with passive internal and external rotation of the right hip;
and, while he had 5/5 muscle strength in the upper and lower extremities generally, he
had 4/5 muscle strength with flexion and extension of his right hip, which caused
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wincing and signs of pain. (PageID. 687). PA Convey referred Wright to orthopedics for
further evaluation of his hip pain and referred him to pain management for possible right
sacroiliac injections. (Id.). She did not prescribe an assistive device and did not
comment on whether one was needed or recommended.
On September 1, 2022, Wright was seen by Dr. James R. Slauterbeck at USA
Orthopaedics Surgery for an evaluation of right hip pain. (PageID. 677). X-rays taken on
September 1, 2022 showed ankylosis of the inferior right SI joint. (PageID. 679). Wright
reported a history of right hip and right low back pain that had been going on for several
years. (PageID. 677). He stated that he had a hard time adducting his hip and abducting
and separating his leg. (Id.). Wright reported that the limitation in movement and pain in
the right hip limits his ability to walk, and Dr. Slauterbeck noted that Wright was using a
walker at the time of this visit. (Id.). Dr. Slauterbeck's assessment was that Wright had
some SI joint dysfunction on the right side. His plan was for Wright to take anti-
inflammatories on a limited basis because of his diabetes, as well as physical therapy
for range of motion, strengthening, and mobilization of his SI joint. He also
recommended some chiropractic care for release of the SI joint. (Id.). Dr. Slauterbeck
did not prescribe an assistive device and did not comment on whether one was needed
or recommended.
On October 5, 2022, Wright was seen by Physician’s Assistant Marcelo Gerjoi at
the USA Neurosurgery Clinic at which time his chief complaint was chronic right hip
pain. (PageID. 682). Significantly, physical examination showed that Wright had an
antalgic gait when walking with a cane and restricted motion in the SI joint. (Id.). He had
pain with external rotation in the SI joint and was tender to palpation in the right SI joint.
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(Id.). Gerjoi noted that both he and the orthopedist assessed him with sacroiliac (SI)
joint dysfunction with some evidence of bony ankylosis. (Id.). Gerjoi further stated:
According to the patient this may be a litigated case or
Worker’s comp case. I advised the patient that they are more
than welcome to request my records. With regard to work.
The patient walks with a cane in order to not fall. His leg
gives out unpredictably. I do not believe it would be safe to
have the patient work a job with primary physical labor. He
could have a job sitting as long as he had frequent breaks to
get up.
(Id.). Gerjoi noted that Wright had been unable to go to physical therapy or the
chiropractor as recommended by Dr. Slauterbeck due to lack of insurance. (Id.). Gerjoi
recommended a diagnostic SI joint injection on the right and noted that he was at a
standstill from a medical treatment standpoint due to lack of funds or insurance. (Id.).
Wright was seen by Dr. Clare Carney on December 8, 2022 for a consultative
examination and disability evaluation. (PageID. 706). His chief complaint was constant
pain in his lower back, worse on the right side and sometimes radiating down the right
leg. (Id.). He reported that some days were better than others, but some days he
needed a cane to walk with to keep his balance. (Id.). Dr. Carney noted that he did not
bring the cane with him and only uses it occasionally. (Id.). His physical exam showed
normal gait with an occasional limp, mild pain in the lower back when walking on heels,
moderate pain in the lower back when squatting and rising, pain on rotation of the
thoracic spine, decreased range of motion in the lumbar spine, pain in the lower back on
hip rotation, supine leg raise positive on the right leg, and seated leg raise positive on
the left leg. (PageID. 709-10). All other results were normal, including 5/5 strength
throughout all extremities. (Id.). Dr. Carney diagnosed Wright with low back pain that
would make it difficult for him to lift and carry heavy objects or walk long distances. (Id.).
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Based upon her examination and her review and consideration of the medical evidence
of record, Dr. Carney opined that an assistive device was not necessary for Wright’s
locomotion. (PageID. 711). She further opined that Wright would be able to perform the
following work-related activities despite impairments: lifting and carrying lighter objects,
sitting, standing, walking shorter distances, handling objects hearing, speaking, and
traveling. (Id.).
Nurse Practitioner Tamekia Cunningham, who treated Wright for heart disease,
high blood pressure, and diabetes, completed an application for disability access
parking privileges on or about January 9, 2023, in which she stated, under penalty of
perjury, that Wright could not walk two hundred feet without stopping to rest and could
not walk without the use of, or assistance from, a brace, cane, crutch, another person,
prosthetic device, wheelchair, or other assistive device. (PageID. 719). At a routine
follow-up appointment on January 9, 2023, Nurse Practitioner Messie Squire noted that
Wright was using a walking cane for ambulation due to sciatic pain with ambulation
leading to weakness and falls. (PageID. 721).
The ALJ set forth in his decision the following regarding Wright’s use of a cane
while walking:
- “[The claimant] reported [at the hearing] that he started using a cane in 2021
because his leg began to give out.” (PageID. 37).
- “The claimant presented to neurosurgeon, Ashley Kern, MD, in March 2022
for evaluation of low back pain. He endorsed radiation to the lower
extremities. On exam, he ambulated with a cane he got for himself to assist
with balance. There was mild tenderness to palpation in the lumbar spine.
Motor strength was decreased (4/5) in the hips. Sensation and reflexes were
intact.” (PageID. 38).
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- “In January 2023, the claimant presented to treatment for refills. He was
using his own cane and complained of low back pain that radiated down the
right lower extremity.” (PageID. 38).
- “The claimant was noted to use a cane at some office visits, however, it was
not prescribed and no provider noted it was medically necessary. The
claimant presented to the in-person hearing without a cane and appeared to
have normal ambulation. Tus [sic], the use of a cane is not included in the
residual functional capacity. Despite his complaints, the claimant was found
to have full strength in his extremities. He had some lumbar decreased range
of motion. The residual functional capacity to medium work accommodates
the claimant's severe impairments.” (PageID. 39).
- Dr. Carney opined the claimant can lift and carry up to 20 pounds
continuously and up to 50 pounds occasionally; he can sit for six hours at
one time and in total; he can stand for one hour at one time for up to two
hours; can walk for 45 minutes at one time for up to two hours; and he does
not require a cane for ambulation. She opined he can occasionally climb
ramps and stairs and balance and can never climb ladders, ropes and
scaffolds.” (PageID. 39).
After considering this evidence and concluding that no medical provider had
prescribed a cane nor noted that one was medically necessary, the ALJ issued an RFC
of the full range of medium work.
It is well-established that it is not this Court’s place to reweigh the evidence or
substitute its judgment for that of the Commissioner. See Chester, 792 F.2d at 131. This
Court is limited to a determination of whether the ALJ’s decision is supported by
substantial evidence and based on proper legal standards. While the Court
acknowledges that the ALJ did not specifically address PA Gerjoi’s indication that he
approved the use of a cane to prevent Wright from falling when his leg gives out
unpredictably or CRNP Cunningham’s statement in the handicapped parking decal
application that Wright cannot walk without the use of an assistive device, the ALJ is not
required to address every medical report specifically in his decision so long as he notes
that he reviewed all record evidence, which he did here. Having reviewed the ALJ’s
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decision and the transcript and considered the arguments made by Wright, the Court
finds that, even though there may be some contrary evidence concerning his use of and
the medical necessity for a cane, the ALJ’s RFC determination is supported by
substantial evidence and based on proper legal standards. Mitchell v. Comm’r, Soc.
Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).
CONCLUSION
Based on the foregoing, it is ORDERED that the decision of the Commissioner of
Social Security denying Plaintiff benefits be AFFIRMED.
DONE and ORDERED this the 26th day of March, 2025.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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