Pierson v. Astrue (CONSENT)

Filing 18

MEMORANDUM OPINION that the decision of the Commissioner is supported by substantial evidence and is due to be affirmed. Signed by Honorable Charles S. Coody on 2/16/10. (br, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION B E T T Y D. PIERSON, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 2:08cv809-CSC (WO)

M E M O R A N D U M OPINION I . Introduction T h e plaintiff applied for supplemental security income benefits under Title XVI of the S o c i a l Security Act, 42 U.S.C. § 1381 et seq., alleging that she was unable to work because o f a disability. His application was denied at the initial administrative level. The plaintiff then requested and received a hearing before an Administrative Law Judge ("ALJ"). F o llo w in g the hearing, the ALJ also denied the claim. The Appeals Council rejected a s u b s e q u e n t request for review. The ALJ's decision consequently became the final decision o f the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 1 2 9 , 131 (11 th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C. § § 405 (g) and 1631(c)(3). The parties have consented to the United States Magistrate Judge c o n d u c tin g all proceedings in this case and ordering the entry of final judgment, pursuant to

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.

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2 8 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1. Based on the court's review of the record in th is case and the briefs of the parties, the court concludes that the decision of the C o m m is s io n e r should be affirmed. II. Standard of Review U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months . . . To make this determination,2 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920. (1 ) (2 ) (3 ) (4 ) (5 ) Is the person presently unemployed? Is the person's impairment severe? D o e s the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? Is the person unable to perform his or her former occupation? Is the person unable to perform any other work within the economy?

A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).3

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately
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T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which supports the decision of the ALJ but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . The Issues A . Introduction. Plaintiff Betty Pierson ("Pierson") was 36 years old at the alleged d ate of onset and 38 years old at the time of the hearing before the ALJ. (R. 58, 576-77). S h e has a high school education. (R. 577). She has no prior work experience. (R. 9). F o llo w in g the hearing, the ALJ concluded that the plaintiff has severe impairments of status post fusion lumbar spine with mild stenosis; degenerative disc disease lu m b a r spine; left cervical radiculitis; questionable left carpal tunnel

cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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s yn d ro m e ; questionable meniscuis tear right knee; history of intermittent s e iz u re disorder; and borderline intellectual functioning. (R . 22). The ALJ also concluded that Pierson's moderate obesity, asthma, and history of g a s tric reflux did not constitute severe impairments. (Id.). Although the ALJ concluded that P ier so n could perform her past relevant work as a sitter, (R. 30), the Appeals Council d isag ree d and concluded that she did not have any past relevant work. (R. 9). However, relying on the testimony of the vocational expert, the Appeals Council concluded that there w e r e significant numbers of jobs in the national economy that Pierson could perform, and th u s , she was not disabled. (Id.). B. Plaintiff's Claims. As stated by the plaintiff, she presents the following three is s u e s for the Court's review: I. N e ith e r the ALJ's nor the AC's RFC findings are based on substantial e v id e n c e . T h e ALJ erred in his pain and credibility findings. T h e ALJ erred in rejecting examining as well as treating physician o p in io n .

II. III.

(P l's Br. at 6 - 8). IV. Discussion A disability claimant bears the initial burden of demonstrating an inability to return to her past work. Lucas v. Sullivan, 918 F.2d 1567 (11 th Cir. 1990). In determining whether th e claimant has satisfied this burden, the Commissioner is guided by four factors: (1) o b je c tiv e medical facts or clinical findings, (2) diagnoses of examining physicians, (3)

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su b jec tiv e evidence of pain and disability, e.g., the testimony of the claimant and her family o r friends, and (4) the claimant's age, education, and work history. Tieniber v. Heckler, 720 F .2 d 1251 (11 th Cir. 1983). The court must scrutinize the record in its entirety to determine th e reasonableness of the ALJ's decision. See Walker, 826 F.2d at 999. The ALJ must c o n sc ien tio u sly probe into, inquire of and explore all relevant facts to elicit both favorable a n d unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11 th Cir. 1 9 8 1 ). The ALJ must also state, with sufficient specificity, the reasons for his decision ref ere n cing the plaintiff's impairments. a d d re s s e s the plaintiff's specific claims. 1. Whether the ALJ or the AC erred in their RFC findings. Pierson appears to a r g u e that the ALJ in this case was bound by the RFC finding of an ALJ in a prior d eterm inatio n . In a 1999 decision, the plaintiff was deemed not disabled. (Pl's Br. at 2). S h e filed the present application for SSI benefits on June 21, 2004. According to the p la in tif f , "[a]bsent medical improvement the findings of a prior ALJ become the a d m in is tra tiv e law of the case." (Id. at 6). Pierson cites no law in support of her position, a n d beyond her perplexing assertion that the present ALJ relied on the former ALJ's RFC f in d in g s , the plaintiff alleges no facts and points to no evidence in the record to support her p o s itio n . For example, Pierson argues that "[f]or the ALJ to refer to and adopt any c o n c lu s io n s other than malingering made by Judge Carnes [in 1999] . . . suggests that the c u rre n t ALJ at best selectively reviewed the evidence of record for the intervening period of s e v e n years." (Id. at 7). While the present ALJ referred to the findings of the former ALJ 5 Within this analytical framework, the court

in the 1999 determination, the present ALJ did not adopt any findings of the prior ALJ, and s p e c if ic a lly did not conclude that Pierson was malingering. The burden is on the plaintiff to demonstrate that the Commissioner's decision is not s u p p o rte d by substantial evidence, and the argument of counsel is simply insufficient to meet th is burden. See generally Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler C o r p ., 10 F.3d 1563, 1568 (11 th Cir. 1994) (It is not the court's responsibility to seek out f a cts in support of the plaintiff's position.) More importantly, however, the court has re v ie w e d the ALJ's decision in its entirety and concludes that the ALJ's references to the 1 9 9 9 determination were merely illustrative recitations of the administrative history of P ier so n 's claim. The ALJ properly limited his consideration of Pierson's disability claim to h e r 2004 application, and a review of the ALJ's determination demonstrates that he did not im p ro p e rly rely on the 1999 RFC finding. 2 . Whether the ALJ failed to properly consider the Eleventh Circuit three-part p a in standard. Next, Pierson argues that the ALJ failed to properly apply the law of this c irc u it to discredit her pain testimony. After citing to selective medical records, Pierson a g a in challenges the ALJ's reference to malingering. (Pl's Br. at 8). The court is unable to a sc e rt a in the basis of the plaintiff's challenge as the ALJ does not accuse the plaintiff of m a lin g e rin g . Nonetheless, the court will address the ALJ's pain and credibility analysis. "Subjective pain testimony supported by objective medical evidence of a condition th a t can reasonably be expected to produce the symptoms of which the plaintiff complains is itself sufficient to sustain a finding of disability." Hale v. Bowen, 831 F.2d 1007 (11 th Cir. 6

1 9 8 7 ). The Eleventh Circuit has established a three-part test that applies when a claimant a tte m p ts to establish disability through her own testimony of pain or other subjective s ym p to m s . Landry v. Heckler, 782 F.2d 1551, 1553 (11 th Cir. 1986); see also Holt v. S u lliv a n , 921 F.2d 1221, 1223 (11 th Cir. 1991). This standard requires evidence of an u n d e rlyin g medical condition and either (1) objective medical evidence that confirms the s e v e rity of the alleged pain arising from that condition or (2) an objectively determined m e d ic a l condition of such severity that it can reasonably be expected to give rise to the a lle g e d pain. Landry, 782 F. 2d at 1553. In this circuit, the law is clear. The Commissioner m u s t consider a claimant's subjective testimony of pain if he finds evidence of an underlying m e d ic a l condition and the objectively determined medical condition is of a severity that can re a s o n a b ly be expected to give rise to the alleged pain. Mason v. Bowen, 791 F.2d 1460, 1 4 6 2 (11 th Cir. 1986); Landry, 782 F.2d at 1553. Thus, if the Commissioner fails to articulate re a so n s for refusing to credit a claimant's subjective pain testimony, the Commissioner has a c ce p te d the testimony as true as a matter of law. This standard requires that the articulated re a so n s must be supported by substantial reasons. If there is no such support then the te s tim o n y must be accepted as true. Hale, 831 F.2d at 1012. A t the administrative hearing, the plaintiff testified that she is disabled due to her s e iz u re s and chronic pain in her back and side. (R. 579). She testified that she has seizures w h ile she sleeps and she does not remember them. (R. 579-80). She further testified that she h a s arthritis in her back as a result of three back surgeries. (R. 580). Finally, she testified th a t she cooks, does the grocery shopping, but she does not do housework. (R. 578). 7

T h e ALJ discredited the plaintiff's testimony of disabling pain and functional re s tric tio n s . (R. 28-30). After considering the evidence of record, the undersigned finds that the c la im a n t's medically determinable impairments could be reasonably expected to produce the alleged symptoms, but that the claimant's statements concerning in ten sity, persistence and limiting effects of these symptoms are not entirely c re d ib le . (R. 29). If this were the extent of the ALJ's credibility analysis, the plaintiff might be e n title d to some relief. However, the ALJ continued his analysis and discredited the p la in tif f 's testimony based on the following. As for the opinion evidence, the claimant testified that she has seizures while s h e is asleep. This, then, would not appear to affect a normal work day, most o f the time. The claimant appears to have a compliance problem with m e d ic a tio n for her seizures and seizure disorder appears to be stable while on m e d ic a tio n . Specifically, records from Dr. Hakim indicate that on October 22, 2 0 0 2 , she reported no problems with seizures and doing okay on Dilantin. On 1 1 -2 8 -0 0 she reported no more seizures. On 12-05-00 she reported no p ro b le m s with seizures. On 04-17-01 she reported no seizures. On 05-16-01 s h e reported no seizure activity. She had an EEG performed and it d e m o n s tra te d no epileptic activity. On 08-29-01 she reported no seizures and d o in g reasonably well on Dilantin. On 01-16-02 she reported having four s e iz u re s. She was taken to the ER and found to have had no Dilantin in her s ys te m . As a matter of fact, her level was zero. She was placed back on m e d ic a tio n and her seizures were better controlled. On 05-07-02 she reported n o seizures. On 08-20-02 she reported doing well with medication. On 10-220 2 she reported doing well with no seizures. (Exhibit C-4F). On 07-11-06 she re p o rte d that she has had several seizures back to back a month ago. Her D ila n tin level was subtherapeutic as before and she was given Dilantin 1000 m g IV. She was diagnosed with multiple seizures related to incompliance (sic) (E x h ib it C-13F). The assessment of Dr. Combs dated March 21, 2007, in d ic a te s that the claimant stated that her last seizure was on Father's Day, last ye a r. Dr. Combs noted that the claimant's effort during the exam was d esc rib ed as poor. Dr. Combs diagnosed seizures controlled by Dilantin. Dr. C o m b s was of the opinion that there is very little limitation in doing workrelated activity except for that caused by a lack of physical training. Dr. 8

C o m b s indicated that sitting and standing or walking or lifting or carrying or h a n d lin g objects up to five pounds should be possible (Exhibit C-24F). The c la im a n t has had no further treatment in the emergency room related to her s e iz u re s. Also Dr. Evans testified that the claimant has a compliance problem w ith regard to her seizure disorder. I find that the claimant is not fully c re d ib le , and not disabled based on her own testimony as she has exaggerated h e r symptoms. (R. 29-30). T h e ALJ has discretion to discredit a plaintiff's subjective complaints as long as he p ro v id e s "explicit and adequate reasons for his decision." Holt, 921 F.2d at 1223. The A L J's reasons for discrediting the plaintiff's testimony of pain and disability were both c l e a r l y articulated and supported by substantial evidence. Id. Relying on the treatment re c o rd s , objective evidence, and Pierson's own testimony, the ALJ concluded that her a lle g a tio n s regarding the extent of her pain were not credible and discounted that testimony. A f te r a careful review of the record, the court concludes that the ALJ properly discounted the p la in tif f 's testimony and substantial evidence supports the ALJ's credibility determination. It is undisputed that the plaintiff suffers from pain. In determining her residual functional c a p a c ity, the ALJ specifically considered that Pierson suffered from "mild/moderate pain w h ich occasionally interferes with concentration, persistence, or pace." (R. 27). However, th e ALJ concluded that while Pierson's underlying conditions are capable of giving rise to s o m e pain and other limitations, her impairments are not so severe as to give rise to the d is a b lin g intractable pain as she alleged. The medical records support the ALJ's conclusion that while Pierson has conditions th a t could reasonably be expected to produce pain, Pierson was not entirely credible in her 9

d e sc rip tio n of that pain. For example, when applying for disability, Pierson said "her back b o th e re d her before when she got disability but that her back is okay now. She says she is p re se n tly unable to work due to asthma and seizures." (R. 68). On January 16, 2002, Pierson c o m p la in e d to Dr. Hakim that she was having lower back pain, but he concluded that it was " m ild to moderate." (R. 179). Although Pierson had difficulty bending forward, she was a b o u t to squat and her gait was steady. (Id.) On March 21, 2007, Pierson underwent a p h ysic a l consultative examination. (R. 557-561). She had "slight scoliosis with convexity to the left." (R. 558). She exhibited "no spasm or detectable limitation of motion except for s o m e mild rigidity in the lumbar area." (Id.) Her gait was normal and an x-ray of the c e rv ic a l spine was normal. (Id.) After a careful review of the record, the court concludes th a t the ALJ's reasons for discrediting the plaintiff's testimony were both clearly articulated a n d supported by substantial evidence. To the extent that the plaintiff is arguing that the ALJ should have accepted her te stim o n y regarding her pain, as the court explained, the ALJ had good cause to discount her testim o n y. This court must accept the factual findings of the Commissioner if they are s u p p o r te d by substantial evidence and based upon the proper legal standards. Bridges v. B o w e n , 815 F.2d 622 (11 th Cir. 1987). 3 . Whether the ALJ improperly rejected the examining and treating physicians' o p in io n s . The plaintiff argues that the ALJ improperly rejected her treating physician's o p in io n that her pain would preclude her from working. (Pl's Br. at 9). On December 26, 2 0 0 6 , Dr. Temple completed a physical capacities evaluation, a clinical assessment of pain, 10

a n d a clinical assessment of fatigue and weakness. (R. 505-509). Dr. Temple opined that P ier so n had pain "to such an extent as to be distracting to adequate performance of daily ac tiv ities or work." (R. 506). Dr. Temple indicated that the plaintiff could sit for 2 hours

a n d stand for 2 hours. (R. 505). He also indicated that she could occasionally exert push/pull m o v e m e n ts and do fine manipulation. (Id.) She could never climb, do gross manipulation, b e n d , stoop, reach, operate motor vehicles or work around hazard machinery, dust, allergens o r fumes. (Id.). Of course, the law in this circuit is well-settled that the ALJ must accord "substantial w e ig h t" or "considerable weight" to the opinion, diagnosis, and medical evidence of the c la im a n t's treating physician unless good cause exists for not doing so. Jones v. Bowen, 810 F .2 d 1001, 1005 (11 th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11 th Cir. 1985). T h e Commissioner, as reflected in her regulations, also demonstrates a similar preference for th e opinion of treating physicians. G e n e ra lly, we give more weight to opinions from your treating sources, since t h e s e sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the o b je c tiv e medical findings alone or from reports of individual examinations, s u c h as consultive examinations or brief hospitalizations. L e w is v. Callahan, 125 F.3d 1436, 1440 (11 th Cir. 1997) (citing 20 CFR § 404.1527 (d)(2)). T h e ALJ's failure to give considerable weight to the treating physician's opinion is reversible e rr o r. Broughton, 776 F.2d at 961-2; Wiggins v. Schweiker, 679 F.2d 1387 (11 th Cir. 1982). H o w e v e r, there are limited circumstances when the ALJ can disregard the treating

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p h ysician 's opinion. The requisite "good cause" for discounting a treating physician's o p in io n may exist where the opinion is not supported by the evidence, or where the evidence s u p p o rts a contrary finding. See Schnorr v. Bowen, 816 F.2d 578, 582 (11 th Cir. 1987). Good c a u se may also exist where a doctor's opinions are merely conclusory; inconsistent with the d o c to r' s medical records; or unsupported by objective medical evidence. See Jones v. Dept. o f Health & Human Servs., 941 F.2d 1529, 1532-33 (11 th Cir. 1991); Edwards v. Sullivan, 9 3 7 F.2d 580, 584-85 (11 th Cir. 1991); Johns v. Bowen, 821 F.2d 551, 555 (11 th Cir. 1987). T h e weight afforded to a physician's conclusory statements depends upon the extent to which th e y are supported by clinical or laboratory findings and are consistent with other evidence o f the claimant's impairment. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11 th Cir. 1986). T h e ALJ "may reject the opinion of any physician when the evidence supports a contrary c o n c lu s io n ." Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11 th Cir. 1983). The ALJ must a rtic u la te the weight given to a treating physician's opinion and must articulate any reasons f o r discounting the opinion. Schnorr, 816 F.2d at 581. After reviewing all the medical records, the ALJ rejected the opinion of Dr. Temple b e c a u se "his medical records do not support the RFC and Pain Form that he gave . . . [h]is o p in io n is not supported by his own clinical examinations and testing, and it is inconsistent w ith the record as a whole." (R. 28). Dr. Temple's own medical records do not support his o p in io n that Pierson suffers from unrelenting disabling pain. Dr. Temple treated Pierson f r o m January 14, 2004 until December 4, 2006. (R. 470 - 473). Over the course of his tre a tm e n t, Dr. Temple saw Pierson in August 2004, September 2004, January 2005, April 12

2 0 0 5 , July 2005, August 2005, February 2006, May 2006, June 2006, September 2006 and D e c e m b e r 2006. (Id.) During the same period, Pierson missed eight (8) appointments. (Id.). A review of Dr. Temple's records indicate that the majority of the appointments were follow u p visits to monitor Pierson's medications. For example, in 2004, Dr. Temple treated P ie rs o n 's asthma and prescribed Dilantin for her seizure disorder. (R. 473). On January 7, 2 0 0 5 , Pierson complained of lower back pain and Dr. Temple prescribed heat and Sulindac. (Id .) He also continued her on Dilantin for her seizures, Zantac for her reflux, and Flovent a n d Combivent for her asthma. (Id.). In 2005, Dr. Temple followed Pierson's seizure d iso rd e r, reflux, asthma and treated her for vaginal discomfort. (R. 472-73). Dr. Temple c o n tin u e d to treat Pierson for seizure disorder, asthma, reflux and low back pain during 2005 a n d 2006. (R. 470-71). She was also seen in August 2005 for knee pain after falling at WalM a rt. (R. 454, 488, 471-72). The medical records as a whole do not support Dr. Temple's opinion that the plaintiff s u f f ers from unrelenting disabling pain. During the same time period, Pierson was referred to Dr. Hakim at the Greystone Neurology and Pain Center. (R. 430-434). On November 15, 2 0 0 5 , Dr. Hakim reported that Pierson presented to him complaining of neck and arm pain. (R . 432-33). According to Dr. Hakim, Pierson stated "that she had fallen at Walmart in July o f 2005 and injured her knee at that time and started to having neck pain." (R. 432). While s h e had tenderness at the base of the neck, her neck flexion and extension were adequate. (R . 433). Dr. Hakim prescribed BioFreeze cream for her neck. (R. 434). On March 21, 2007, Pierson underwent a consultative examination by Dr. Robert 13

C o m b s . (R. 557-558). She reported to Dr. Combs that she suffered from low back pain. (R. 5 5 7 ). Dr. Combs reported that her "effort was poor." (Id.) She had no back spasms and full ra n g e of motion in all joints. (Id.) An x-ray of her lumbosacral spine revealed "[p]ost s u rg ic a l fusion of the lumbar spine, with some mild scoliosis." (R. 558). An x-ray of her c e rv ic a l spine was normal. (Id.) Dr. Combs opined that Pierson could walk and sit without lim ita tio n but could only stand for 30 minutes at a time for a total of 4 hours per day. (R. 5 5 9 ). Dr. Combs noted Pierson's low back pain and obesity on his medical source opinion f o rm . (Id.). Based upon its review of the ALJ's decision and the objective medical evidence o f record, the court concludes that the ALJ's rejection of Dr. Temple's opinion that Pierson s u f f e rs from intractable disabling pain is supported by substantial evidence. Finally, to the extent that the plaintiff argues that the ALJ failed to consider her o b esity in his disability determination, she is entitled to no relief on this basis. The plaintiff's a rg u m e n t, in its entirety, is as follows. Moreover, Dr. Combs' MSO as to postural and environmental restrictions was b a s e d specifically on low back pain and obesity. (R. 560-561). The ALJ a p p e a rs to have circumvented the need to factor in obesity by eliminating it f ro m consideration as a severe impairment or under the guidelines of SSR 021 p . This Ruling recognizes that obesity can cause limitations in all exertional a n d postural functions; that it can affect an individual's ability to sustain ro u tin e movement and work activity. The Ruling particularly recognizes that o b e sity makes it harder for the chest and lungs to expand, forcing the r e sp ira to ry system to work harder to provide oxygen to the body, in turn m a k in g the heart work harder to pump blood to carry oxygen to the body. The R u lin g recognizes that an obese person's body has to work harder at rest, m a k in g it harder to perform additional work. The Ruling further recognizes th a t obesity can complicate and exacerbate exertional and non exertional c o n d itio n s . A copy of this Ruling is attached, This component of the alleged later disability alone distinguishes it from the first and makes the ALJ's 14

f in d in g s of a higher RFC unlikely. (P l's Br. at 10). Beyond this broad, generalized statement about obesity, Pierson alleges no f a c ts and points to no evidence in the record in support of her position that her obesity im p in g e s on her ability to work. The burden is on the plaintiff to demonstrate that the C o m m is s io n e r's decision is not supported by substantial evidence, and the argument of c o u n se l is insufficient to meet this burden. More importantly, however, the court concludes th a t the ALJ considered the plaintiff's obesity on her ability to perform work. In determining P ier so n 's residual functional capacity, the ALJ determined that she could only occasionally b e n d , stoop, kneel, crouch, crawl or balance. (R. 27). Thus, the ALJ met any responsibility to consider the effect of Pierson's obesity on her ability to work. V. Conclusion T h e court has carefully and independently reviewed the record and concludes that s u b s ta n tia l evidence supports the ALJ's conclusion that plaintiff is not disabled. Thus, the c o u rt concludes that the decision of the Commissioner is supported by substantial evidence a n d is due to be affirmed. A separate order will be entered. D o n e this 16 th day of February, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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