Peppers v. Colvin (CONSENT)

Filing 18

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner be and is hereby AFFIRMED. Signed by Honorable Judge Terry F. Moorer on 5/5/2014. (wcl, )

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MICHAEL WAYNE PEPPERS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIV. ACT. NO. 2:13cv488-TFM
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(WO)
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MEMORANDUM OPINION and ORDER
I. PROCEDURAL HISTORY
Plaintiff Michael Wayne Peppers (“Peppers”) applied for disability insurance
benefits pursuant to Title II of the Social Security Act, 42 U.S.C. '' 401 et seq., alleging
that he is unable to work because of 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”). Following the hearing on June 16, 2010, the ALJ
concluded that Peppers was not under a “disability” as defined in the Social Security Act.
The ALJ, therefore, denied the plaintiff’s claim for benefits. Peppers submitted a request
for review to the Appeals Council. Upon considering Peppers’ request, the Appeals
Council vacated the ALJ’s decision and remanded the case with directions that the ALJ
should conduct further proceedings and issue a new decision.

(R. 117-19). A

supplemental hearing was conducted on December 1, 2011. (R. 72-98). Following this
proceeding, the ALJ denied the claim.

The Appeals Council rejected a subsequent
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request for review. Consequently, the ALJ’s decision became the final decision of the
Commissioner of Social Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). Pursuant to 28 U.S.C. § 636(c), the parties have consented to
entry of final judgment by the United States Magistrate Judge. The case is now before
the court for review pursuant to 42 U.S.C. §§ 405(g) and 1631(c)(3). Based on the
court’s review of the record in this case and the parties’ briefs, the court concludes that
the Commissioner’s decision should be AFFIRMED.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when
the person 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 . . .
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(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?
(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.”
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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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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).2
The standard of 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
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). A reviewing court may
not look only to those parts of the record which supports 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. THE ISSUES
A.

Introduction

Peppers was 64 years old at the time of the December 1, 2011, hearing before the
ALJ. (R. 72, 76). He completed sixth grade and has a general equivalency diploma. (R.
76). Peppers has prior work experience as a flooring installer. (R. 77). Peppers alleges
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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 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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that he became disabled on February 10, 2006, due to back pain, arthritis, spores in his
lungs, chronic obstructive pulmonary disease (“COPD”), headaches, and anxiety attacks.
(R. 78-79, 280). After the hearing on December 1, 2011, the ALJ found that Peppers
suffers from COPD, degenerative disc disease, hypertension, panic disorder, and anxiety
disorder. (R. 17).

The ALJ found that Peppers is unable to perform his past relevant

work, but that he retains the residual functional capacity to perform light work with the
following limitations:
[C]laimant can frequently lift and carry up to ten pounds, and occasionally
lift and carry eleven to twenty pounds. Claimant can sit for three hours at
one time, and stand/walk for one hour at one time. Claimant is able to sit
for six hours during an eight-hour workday, and stand/walk two hours
during an eight-hour workday. Claimant needs to be able to alternate
between sitting and standing to relieve pain and/or discomfort. Claimant
can frequently reach in all directions, handle, finger, and feel, and
occasionally push and pull with his dominant right hand. Claimant can
frequently operate foot controls bilaterally. Claimant can never climb stairs
and ramps, but can occasionally climb ladders and scaffolds, balance,
stoop, kneel, crouch, and crawl. Claimant cannot tolerate exposure to
unprotected heights, humidity, wetness, dust, odors, fumes, pulmonary
irritants, and extreme heat and cold. Claimant can occasionally tolerate
exposure to moving mechanical parts, operation of a motor vehicle,
vibrations, and moderate (office) noise. Claimant’s work should be limited
to unskilled work with no more than frequent interaction with coworkers
and supervisors, and no more than occasional contact with the general
public.
(R. 20). Testimony from a vocational expert led the ALJ to conclude that a significant
number of jobs exist in the national economy that Peppers can perform, including work
as a mail clerk, stock checker, and electric worker. (R. 36). Accordingly, the ALJ
concluded that Peppers is not disabled. (R. 37).

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B.

Plaintiff’s Claim

Peppers’ sole issue for the Court’s consideration is whether the “ALJ’s RFC
findings are not based on substantial evidence because the evidence, including [the]
treating physician[s] opinion supports a favorable finding under the [Medical Vocational
Rules] at the sedentary level.” (Doc. No. 13, Pl’s Br., p. 1.)
IV. DISCUSSION
Peppers asserts that the ALJ’s determination that he has the residual functional
capacity to perform light work with limitations is not supported by substantial evidence.
Specifically, Peppers argues that the ALJ should have found that he has the residual
functional capacity to perform no more than sedentary work because the opinion of Dr.
Bipin Kumar, his treating physician, “provides for an eight hour work day but . . . at best
would allow for a range of sedentary work based on the exertional restriction of claimant
being on his feet for only an occasional basis or two hours in an eight hour day pursuant
to SSR 83-10.” (Pl’s Br., pp. 7, 9). In addition, he contends that the medical expert at the
hearing failed to provide a function-by-function analysis as required under SSR 96-8p.
He also argues that a finding of disabled is mandated by Rule 201.14 of the Medical
Vocational Guidelines because he is closely approaching advanced age, is able to
perform no more than “sedentary [work] at best,” and has mental work-related
restrictions. (Id., pp. 9-10).
An ALJ is required to independently assess a claimant’s residual functional
capacity “based upon all of the relevant evidence.” 20 C.F.R. § 404.1545(a)(3) (“We will
assess your residual functional capacity based on all of the relevant medical and other
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evidence.”); 20 C.F.R. § 404.1546(c) (“If your case is at the administrative law judge
hearing level. . ., the administrative law judge . . . is responsible for assessing your
residual functional capacity.”). See also Lewis, 125 F.3d 1436, 1440 (11th Cir. 1997)
(“The residual functional capacity is an assessment, based upon all of the relevant
evidence, of a claimant’s remaining ability to do work despite his impairments.”).
“Residual functional capacity, or RFC, is a medical assessment of what the claimant can
do in a work setting despite any mental, physical or environmental limitations caused by
the claimant’s impairments and related symptoms. 20 C.F.R. § 416.945(a).” Peeler v.
Astrue, 400 Fed. Appx. 492, 494 n. 2 (11th Cir. 2010).
The ALJ’s determination that Peppers retains the residual functional capacity to
perform light work is supported by substantial evidence, including the opinions of his
treating physician and the consultative physicians. In March 2009, Dr. Hirenkumar Jani,
a consultative physician, conducted an examination of Peppers. (R. 385-388). Dr. Jani
diagnosed Peppers as suffering from shortness of breath due to underlying COPD and
chronic neck and back pain.

(R. 388).

Dr. Jani found no restrictions posturally,

manipulatively, or environmentally. (R. 388). He recommended that “[a]s far as walking
and standing and lifting and carrying [is] concerned [Peppers] needs to be further
evaluated in terms of shortness of breath.” (R. 388).
In May 2010, Peppers’ treating physician, Dr. Kumar, completed a Physical
Capacities Evaluation, in which he assessed that Peppers is able to sit for two hours and
walk for one hour at a time; sit for four hours and stand/walk for two hours in an eighthour workday; take ten-minute breaks every two hours; continuously lift up to ten pounds
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and carry up to five founds; frequently lift eleven to twenty pounds; occasionally lift
twenty-one to twenty-five pounds; occasionally carry eleven to twenty pounds; use his
hands and feet for repetitive motions; occasionally bed, squat, and reach; and moderate
exposure to dust, fumes, and gases. (R. 26). In addition, Dr. Kumar found that Peppers’
pain is present to such an extent as to be distracting to adequate performance of daily
activities or work and that physical activity such as walking, standing, or bending
increase his pain to such a degree as to cause distraction or total abandonment from tasks.
(Id.).
After the Appeals Council entered its June 13, 2011 opinion remanding the ALJ’s
decision to deny benefits and directing the ALJ to obtain an updated physical consultative
examination by a medical expert, such as an internist or specialist, the ALJ ordered
additional consultative examinations. On August 11, 2011, Dr. Oluyinka Adediji, an
internist, conducted an evaluation. (R. 521). Dr. Adediji’s diagnostic assessment was
uncontrolled hypertension, COPD/emphysema, chronic back and neck pain, and
situational depression. (R. 525). Dr. Adediji found that Peppers is able to frequently lift
up to ten pounds and carry up to twenty pounds; stand and walk no more than one hour
without interruption; stand and walk no more than two hours in an eight-hour workday;
sit no more than three hours without interruption; sit no more than six hours during an
eight-hour workday; frequently use his dominant right hand for reaching, handling,
fingering, and feeling; occasionally push or pull; frequently operate foot controls; and
occasionally climb ladders or scaffolds, balance, stoop, kneel, crouch, and crawl. (R.
516-519). He also found that Peppers should never climb stairs or ramps and should
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avoid unprotected heights, humidity, wetness, dust, odors, pulmonary irritants, and
temperature extremes. (R. 519-520).
At the December 1, 2011 hearing, Dr. James Anderson, a medical expert, testified
that his review of the medical records indicates that Peppers suffers from severe
impairments of hypertension, chronic chest pain due to a chronic obstructive pulmonary
emphysema and smoker’s bronchitis and chronic spinal pain with normal x-rays. (R. 90).
Dr. Anderson identified inconsistencies between Dr. Kumar’s May 2010 opinion
regarding untreated back pain and the lack of objective medical evidence to support the
treating physician’s findings. (R. 89). He also testified that a pulmonary function test
indicates that Peppers’ ability to work would not be restricted significantly. (Id). Dr.
Anderson assessed that Peppers retains the residual functional capacity to perform light
work with the following restrictions:
Because of his chronic smoker’s bronchitis and emphysema, I would
suggest that he not be exposed to concentrated dust, fumes, and allergens of
that sort. Because of the subjective complaint of lower back and neck pain,
I would suggest that a sit/stand option would be appropriate for his light
work activity.
(R. 90).
On December 15, 2011, Dr. Kumar completed a second Physical Capacities
Evaluation. (R. 14). The treating physician assessed that Peppers is able to sit for six
hours and stand and/or walk two hours during an eight-hour workday; carry twenty
pounds occasionally and ten pounds frequently; bend occasionally; and work around dust,
allergens, and fumes. (R. 543). In addition, Dr. Kumar noted that Peppers’ pain “is
present, but does not prevent functioning in everyday activities or work.” (R. 544). He
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found, however, that physical activity, such as prolonged sitting, walking or standing will
“[g]realty increase[] pain, and to such a degree as to cause distraction from tasks or total
abandonment of tasks.” (Id.). Nonetheless, he noted that Peppers does not have “an
underlying medical condition [which is] consistent with the pain he . . . experiences.” (R.
545).
To the extent Peppers argues that the ALJ’s decision is not supported by
substantial evidence because the ALJ did not specify whether he relied on Dr. Kumar’s
May 2010 opinion or his December 2011 opinion when affording great weight to his
opinion, his argument is unavailing. The ALJ should not be required to specify the
obvious.

After the Appeals Council remanded the case, Dr. Kumar provided a second

Physical Capacities Evaluation which was less favorable to Peppers’ case. It is clear that
the ALJ relied on this second opinion when he gave “great weight to Dr. Kumar’s
opinion,” specifically finding that the “opinion is supported by medical signs and
findings and is consistent with the record as a whole.” (R. 34). The ALJ’s residual
functional capacity finding that Peppers retains the residual functional capacity to
perform light work with restrictions mimics the findings in Dr. Kumar’s second opinion
indicating that Peppers is able to sit for six hours and stand and/or walk two hours during
an eight-hour workday, carry twenty pounds occasionally and ten pounds frequently, and
bend occasionally. (R. 20, 544).
In addition, Peppers asserts that the ALJ erred in affording great weight to the
opinion of Dr. Anderson because the medical expert did not provide a function-byfunction assessment of his work-related abilities in accordance with SSR 96-8p. A
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medical expert is not required to perform such an analysis. Social Security Ruling 96-8p,
however, does require that the ALJ consider all the evidence and assess the plaintiff’s
ability to do work-related activities, including sitting, standing, walking, lifting, carrying,
pushing, and pulling. See SSR 96-8p at *3, *5 (1996). SSR 96-8p provides that, at Step
4 of the sequential evaluation, the RFC should not be expressed in terms of the exertional
categories, such as “sedentary,” “light,” “medium,” or “heavy.” Id.
The court finds that the ALJ adequately evaluated Peppers’ functional limitations
and restrictions in his decision. The ALJ found that Peppers “has the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b). . . .” The Regulation
provides:
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weight up to 10 pounds. Even though
the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.
Social security rulings do not have the force and effect of statutes or regulations.
See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007); Fagan v. Astrue, 231 Fed. Appx.
835, 837 n. 2 (10th Cir. 2007); Walker v. Sec’y of Health and Human Servs., 856 F.2d
1352, 1356 (9th Cir. 1988). However, the Rulings are generally entitled to deference.
Fagan, 231 Fed. Appx. at 837. In this case, the ALJ gave sufficient deference to the
Ruling when making his residual functional capacity finding.
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SSR 96-8p does not

require an ALJ to mechanically assess functions for which there is no credible evidence
of impairment. The purpose of the function-by-function assessment is to insure that the
ALJ does not overlook an important restriction and thereby incorrectly classify the
individual’s capacity for work. See SSR 96-8p, 1996 WL 374184, at *4. An ALJ need
not provide superfluous analysis of irrelevant limitations or relevant limitations about
which there is no conflicting medical evidence. See Depover v. Barnhart, 349 F.3d 563,
576-68 (8th Cir. 2003). The ALJ conducted a thorough analysis of the testimony and
considered all of the objective medical evidence in reaching his decision.
Peppers also argues that the ALJ’s decision is erroneous because he would “grid
under MVR 201.14 even if he could perform the full range of sedentary work.” (Doc. No.
13, Pl’s Br., p. 10). The problem with Peppers’ argument is that 201.14 is applicable to
claimants with an RFC of sedentary work. In this case, substantial evidence supports the
ALJ’s determination that Peppers has the residual functional capacity to perform light
work with restrictions. Thus, Peppers’ claim that the ALJ erred by failing to consider his
ability to perform sedentary work along with his age and mental work-related restrictions
at the time of the hearing is without merit.
Pursuant to the substantial evidence standard, this court’s review is a limited one;
the entire record must be scrutinized to determine the reasonableness of the ALJ’s
findings. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). The ALJ evaluated all
the evidence before her which led her to conclude that Peppers is able to perform light
work with limitations. It is not the province of this court to reweigh evidence, make
credibility determinations, or substitute its judgment for that of the ALJ. Instead the
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court reviews the record to determine if the decision reached is supported by substantial
evidence. Moore v. Barnhart, 405 F.3d 108, 1211 (11th Cir. 2005). Substantial evidence
“is less than a preponderance, but rather such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Id. Given this standard of review,
the court concludes that the ALJ’s residual functional capacity assessment is consistent
with the medical evidence as a whole. After a careful examination of the administrative
record, the court concludes that substantial evidence supports the conclusion of the ALJ
concerning Moseley’s residual functional capacity to perform light work with limitations.
V.

CONCLUSION

The court has carefully and independently reviewed the record and concludes that
substantial evidence supports the ALJ’s conclusion that Plaintiff is not disabled. Thus,
the court concludes that the decision of the Commissioner is supported by substantial
evidence. Accordingly, it is ORDERED that the decision of the Commissioner be and is
hereby AFFIRMED.
DONE this 5th day of May, 2014.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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