Hobdy v. Colvin (CONSENT)

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 2/16/16. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JENNIFER HOBDY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO.: 1:15cv159-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Jennifer Hobdy (“Plaintiff”) filed an application for Disabled Widow’s Benefits

under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401, et seq, on May 12,
2012. Her application was denied at the initial administrative level on July 30, 2012.
Plaintiff then requested and received a hearing before an Administrative Law Judge
(“ALJ”). Following the hearing, the ALJ issued a decision finding that although Plaintiff
met the non-disability requirements for Disabled Widow’s Benefits, she had not been
under a disability as defined in the Social Security Act, from May 18, 2010, through the
date for her decision. The ALJ’s decision consequently became the final decision of the
Commissioner of Social Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to
Social Security matters were transferred to the Commissioner of Social Security.

129, 131 (11th Cir. 1986). Plaintiff appealed the ALJ’s decision to the Appeals Council
and her request for review was denied in a letter dated January 8, 2015. The case is now
before the court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c),
both parties have consented to the conduct of all proceedings and entry of a final
judgment by the undersigned United States Magistrate Judge.

Pl.’s Consent to

Jurisdiction (Doc. 10); Def.’s Consent to Jurisdiction (Doc. 9). Based on the court’s
review of the record and the briefs of the parties, the court AFFIRMS the decision of the
Commissioner.
II.

STANDARD OF REVIEW
In order to receive Disabled Widow’s Benefits, a claimant must satisfy certain

non-disability and disability requirements. These requirements include, among other
things, that she is between 50 and 60 years old, that she is the widow of a wage earner
who died fully insured, and that she has physical or mental impairments that result in
disability as defined in § 404.15052. See 20 C.F.R. § 404.335. When determining if a
claimant meets the disability requirements, a court will consider a claimant disabled
when she 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.

2

Because the finding that Plaintiff met the non-disability requirements is not in dispute, the court
will not provide a full recitation of the standard set forth in 20 C.F.R. §404.335(c).
2

42 U.S.C. § 423(d)(1)(A).3
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of
Impairments]?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
“not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The burden of proof rests on a claimant through Step Four. See Phillips v.
Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie
case of a qualifying disability once they have carried the burden of proof from Step One
through Step Four. At Step Five, the burden shifts to the Commissioner, who must then
show there are a significant number of jobs in the national economy the claimant can
3

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.

4

McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits. Supplemental security income cases arising under Title XVI of the Social Security
Act are appropriately cited as authority in Title II cases. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412
(5th Cir. 1981); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The
definition of disability and the test used to determine whether a person has a disability is the same for
claims seeking disability insurance benefits or supplemental security income.”).

3

perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Id. at 1238-39. The RFC is what the claimant is
still able to do despite the claimant’s impairments and is based on all relevant medical
and other evidence. Id. It may contain both exertional and nonexertional limitations. Id.
at 1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines5 (“grids”) or call a vocational expert (“VE”). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
“Substantial evidence is more than a scintilla, but less than a preponderance. It is such
relevant evidence as a reasonable person would accept as adequate to support a

5

See 20 C.F.R. pt. 404 subpt. P, app. 2.

4

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support the decision of the ALJ, but instead must
view the record in its entirety and take account of evidence which detracts from the
evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No
similar presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III.

ADMINISTRATIVE PROCEEDINGS
Prior to the ALJ hearing, it was determined that Plaintiff met the non-disability

requirements to receive Disabled Widow’s Benefits. Because that finding is not in
dispute, the court will not address that finding.

With regards to the disability

requirements needed to obtain Disabled Widow’s Benefits, the ALJ determined that
Plaintiff’s impairments did not meet the threshold for disability status. Plaintiff has
exhausted all of her administrative remedies, and appeals that decision before this court.
At the time of the ALJ hearing, Plaintiff was fifty-one years old. Tr. at 52. She
testified that she has a high school education and has not held a job since 1993. Id. at 54.
5

Plaintiff stated that she suffers from pain in her neck, mid back, lower back, left arm and
left breast. Id. at 54, 56, 61. She also testified that she was diagnosed with breast cancer
in January of 2013 that is now in remission. Id. at 55, 56. She further indicated that she
experiences swelling in her legs and hands, and that she can walk for about five to ten
minutes before she experiences pain in her back and swelling in her legs. Id. at 56, 58.
Plaintiff testified that she takes Motrin as needed for her back pain, and that she
sometimes reclines and uses hot towels to relieve her pain. Id. at 55. Despite pain on her
left side, Plaintiff stated that she can lift small amounts. Id. at 56, 58. When asked about
her activities, Plaintiff testified that she can perform household chores, drive, go to
church, and care for herself unaided. Id. at 59. Plaintiff stated that she has “bad days”
approximately once a week, during which she can only “lay around.” Id. at 61.
After hearing from Plaintiff, the ALJ solicited testimony from a Vocational Expert
(“VE”). The ALJ posed a hypothetical to the VE assuming an individual with no prior
work and with the following limitations: lifting and carrying no more than 20 pounds
occasionally and 10 pounds frequently; walking no more than 30 minutes at a time and
no more than six hours in an eight hour workday; unrestricted standing and sitting, with
usual breaks; no overhead reaching with the non-dominant, left arm; and occasionally
restricting reaching, pushing, and pulling with the non-dominant, left arm. Id. at 62. The
VE testified that there were occupations that such an individual could perform. Id.
When asked by the ALJ to restrict such occupations to “light duty jobs,” the VE testified
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that some examples of jobs that would fit those limitations were bakery worker, counter
clerk, and outside deliverer, and that those jobs were available in the national economy.
Id. at 63.
Employing the five-step process, the ALJ found the following: At Step One, the
ALJ found that Plaintiff “has not engaged in substantial gainful activity since May 18,
2010, the alleged onset date[.]” Id. at 34. At Step Two, the ALJ found that Plaintiff
suffers from the following severe impairments: hypertension, diabetes mellitus, a history
of carcinoma of the breast with edema, low back pain, obesity, and myalgias. Id. At Step
Three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or equaled the severity of a listed impairment. Id. at 38. Next, the
ALJ articulated Plaintiff’s RFC as follows:
[T]he [Plaintiff] has the residual functional capacity to perform light
work… except the [Plaintiff] is limited to walking for no more than 30
minutes at a time for no more than six hours in an eight-hour workday,
[Plaintiff] is unable to perform overhead reaching with the left, nondominant arm, and her ability to perform other reaching and pushing and
pulling with the left, non-dominant arm is limited to occasionally.
Additionally, the [Plaintiff] can occasionally climb ramps and stairs but she
can never climb ladders, ropes, or scaffolds, she can occasionally bend,
stoop, and crouch, she can never kneel and crawl, and she can never work
at unprotected heights, or working around dangerous equipment.
Id. at 39.

At Step Four, the ALJ noted that Plaintiff had no past relevant work

experience. Id. at 43. Finally, at Step Five, the ALJ determined – based upon Plaintiff’s
RFC, age, education, work experience, and the testimony of the VE – that Plaintiff could
perform work in the national economy. Id. The ALJ identified several representative
7

occupations at the unskilled light occupational base with additional limitations that
Plaintiff could perform, including “Bakery Worker,” “Counter Clerk,” and “Outside
Deliverer.” Id. at 44. Accordingly, the ALJ determined that Plaintiff “has not been under
a disability . . . from May 18, 2010, through the date of this decision[.]” Id.
IV.

PLAINTIFF’S CLAIM
Plaintiff argues that the Commissioner’s decision should be reversed for two

reasons: (1) the ALJ failed to properly develop the record; and (2) the ALJ failed to
properly apply the pain standard. Pl.’s Br. (Doc. 12) at 5. For the following reasons,
Plaintiff’s arguments for reversal of the Commissioner’s decision are without merit. The
Commissioner’s decision will be affirmed.
V.

DISCUSSION
I.

The ALJ Properly Developed the Record

Plaintiff argues that the Commissioner’s decision should be reversed because the
ALJ failed to properly develop the record. Id. As support for this argument, Plaintiff
asserts that: (i) the ALJ’s RFC assessment was “not supported by substantial evidence”;
and (ii) the ALJ failed to consider the side effects of Plaintiff’s pain medications. Id.
Plaintiff’s argument fails.
i.

The ALJ’s RFC assessment was supported by substantial evidence.

Plaintiff sets forth several reasons why she believes the ALJ’s RFC assessment
lacked substantial evidence to determine Plaintiff was capable of “light work.” First,
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Plaintiff argues that the ALJ was required to consider evidence from a physician to
support her RFC assessment. Id. at 6. Further, Plaintiff asserts that the ALJ had “a duty
to recontact [Plaintiff’s] treating physicians, order a physical consultative exam, or order
a medical expert to review her file which would provide such information.” Id. at 8.
In assessing a claimant’s RFC, there is no requirement that the ALJ's
determination be equivalent to, or supported by, the opinion of a physician. Daniels v.
Astrue, No. 2:11-cv-371, 2012 WL 353756, at * 4 (M.D. Ala. Feb. 2, 2012). Because an
ALJ’s RFC is not a medical assessment, the law requires only that the determination be
“based on all relevant evidence in [the claimant’s] case record.”
404.1545(a)(1).

See 20 C.F.R. §

Thus, developing a full and fair record does not include requiring an

ALJ to secure a medical source opinion regarding a claimant’s RFC. See 20 C.F.R.
§404.1546(c); see also Langley v. Astrue, 777 F. Supp. 2d 1250, 1261 (N.D. Ala. 2011)
(holding that “[t]he failure to include [an RFC assessment from a medical source] at the
State agency level does not render the ALJ’s RFC assessment invalid”).
Similarly, there is no requirement that the ALJ recontact a claimant’s treating
physician, order a physical consultative exam, or order a medical expert to review a
claimant’s file. Indeed, if the evidence in the record is sufficient to allow for an informed
decision, the ALJ has no duty to seek additional information outside of the record.
Robinson v. Astrue, 365 F. App’x. 993, 999 (11th Cir. 2001) (holding that the ALJ did
not err by not requesting an additional consultative examination or recontacting
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claimant’s treating physician because there was substantial evidence in the record for the
ALJ to determine claimant’s RFC). Even if evidence before the ALJ is insufficient or
inconsistent, the decision to contact outside sources is at the discretion of the ALJ. See
20 C.F.R. § 4041520b(c)(1) (stating that if evidence is insufficient or inconsistent for an
ALJ to render a decision, the ALJ may recontact the treating physician); 20 C.F.R. §
404.1520b(C)(3) (stating that an ALJ may ask a claimant to undergo a consultative exam
if evidence is insufficient or inconsistent).
Here, the ALJ considered substantial evidence when determining Plaintiff’s RFC.
The ALJ considered Plaintiff’s testimony6 – which was elicited by questions from the
ALJ and from Plaintiff’s own attorney – as well as hundreds of pages of Plaintiff’s
medical records dating back to 2006. In a four-page discussion, the ALJ set forth the
bases for her RFC determination. The ALJ noted that “there are no treating medical
source opinions regarding the nature and severity of the [Plaintiff’s] diagnosed
impairments and the record has not contained any inconsistent or contrary opinions from
treating or examining sources in regard to the degree of physical limitations.” Tr. at 40.
As such, the ALJ’s RFC determination was supported by substantial, consistent evidence,
and the ALJ had no duty to further develop the record by seeking outside opinions or by
ordering additional examinations.
ii.

6

The ALJ was not required to consider the possible side effects of
Plaintiff’s medications.

Although the ALJ discredited some of Plaintiff’s testimony, the ALJ explained in detail why she did so.

10

Plaintiff asserts that the ALJ was required to elicit testimony regarding the effects
of Plaintiff’s prescribed medications. Plaintiff cites Doss v. Barnhart, 247 F. Supp. 2d
1254 (N.D. Ala. 2003), for support. While that court determined that the ALJ failed to
take into consideration the side effects of the claimant’s medication, the court importantly
noted that the claimant’s medications were known to cause the side effects of which the
claimant complained were disabling. Id. at 1256-57, 59 (“Plaintiff testified that she
suffers with tiredness and dizziness, and she is short of breath. … Her complaints are
consistent with contraindications of [her] medication. … The court takes judicial notice
that [plaintiff’s medications] cause the side effects of which plaintiff complains…”). In
contrast, when a claimant fails to assert that the side effects of her medications
contributed to her disability, the ALJ need not inquire further. Cherry v. Heckler, 760
F.2d 1186, 1191 n.7 (11th Cir. 1985) (determining that the ALJ need not inquire into the
side effects of a claimant’s medications where the claimant was represented at the
hearing, and did not assert that side effects from her medications contributed to her
disability.)
Here, Plaintiff asserts on appeal that her medications are known to cause
drowsiness, tiredness, and difficulty concentrating. Pl.’s Br. (Doc. 12) at 9. Accepting
arguendo that Plaintiff is experiencing these side effects due to her medications, Plaintiff
did not complain of these side effects as her basis for disability. Further, Plaintiff offered
no testimony before the ALJ that the alleged side effects impeded her ability to function
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or to work in society. Indeed, the only reference to such a side effect was Plaintiff’s
testimony that she sometimes took a nap to relieve back pain and take pressure off of her
legs. Tr. at 60. Therefore, because Plaintiff did not assert that the side effects from her
medicine contributed to her disability, the ALJ had no duty to develop the record further.
II.

The ALJ Properly Applied the Pain Standard.
Plaintiff argues that the Commissioner’s decision should be reversed because the

ALJ did not properly apply the pain standard. Again, Plaintiff’s argument fails.
A three-part “pain standard” applies when a claimant attempts to establish
disability through her own testimony of pain or other subjective symptoms. Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). 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.; see also Kelley v. Apfel, 185 F.3d 1211,
1215 (11th Cir. 1999); Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
A reversal is warranted if the ALJ's decision contains no evidence of the proper
application of the three-part standard. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir.
1991); see also Holt, 921 F.2d at 1223 (stating that the ALJ does not have to recite the
pain standard word for word; rather, the ALJ must make findings that indicate that the
standard was applied).

In addition, if the ALJ chooses to discredit the subjective
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testimony of a claimant’s pain, the ALJ must clearly articulate adequate reasons for
discrediting the claimant’s allegations of disabling symptoms. Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005).
Here, the ALJ’s decision shows that the pain standard was applied, and the ALJ
clearly articulated reasons for discrediting Plaintiff’s allegations of the severity of her
symptoms. First, the ALJ determined, based on the evidence, that Plaintiff had several
underlying medical conditions including hypertension, diabetes mellitus, history of
carcinoma of the breast with edema, low back pain, obesity and myalgias. Tr. at 34.
Second, after reviewing Plaintiff’s medical records, the ALJ determined that Plaintiff’s
conditions could be expected to cause Plaintiff some functional limitations, but not to the
level of symptomatology and functional limitation alleged. Id. at 40.
In support of her decision, the ALJ noted that “[t]he claimant’s credibility
regarding the severity, frequency, and duration of her alleged symptomatology is
undermined by the fact that physical examinations have failed to document persistently
abnormal clinical findings.”

Id.

Further, the ALJ noted that “[w]ith respect to

[Plaintiff’s] alleged upper and lower back pain and muscle spasms, the record shows that
the claimant was referred only to physical therapy for additional treatment” and that
“[t]here is no evidence that she has been referred to or evaluated by a specialist.” Id. at
41. The ALJ also stated that, after reviewing the records, there was no objective medical
evidence establishing the existence of a physical impairment capable of causing pain of
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such severity as to require Plaintiff to recline or rest as she has alleged. Id. Finally, the
ALJ stated that Plaintiff’s statements concerning her impairments and their impact on her
ability to work were not entirely credible “in light of her own description of her wide
range of daily activities,” including washing dishes, doing laundry, driving, cooking,
caring for her personal needs without assistance, and completing household chores. Id. at
43.
In sum, the ALJ properly applied the pain standard by considering evidence of
Plaintiff’s underlying medical conditions and by reviewing objective medical evidence
indicating that Plaintiff’s medically determinable impairments could reasonably be
expected to cause Plaintiff’s alleged symptoms. In her review, the ALJ discredited
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her
disability symptoms, and articulated adequate reasons for her credibility determination.
As such, the ALJ properly applied the pain standard.
VI.

CONCLUSION
The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is AFFIRMED.
separate judgment will issue.
Done this 16th day of February, 2016.

/s/ Wallace Capel, Jr.
UNITED STATES MAGISTRATE JUDGE
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A