Cargile-Johnson v. Colvin

Filing 16

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 11/18/2015. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
VALORIE CARGILE-JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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) CIVIL ACTION NO.: 2:14-cv-1149-WC
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MEMORANDUM OPINION
I.

INTRODUCTION
Valorie Cargile-Johnson (“Plaintiff”) filed an application for supplemental

security income under Title XVI of the Act, 42 U.S.C. § 1381, et seq., on May 11, 2012.
Her application was denied at the initial administrative level. Plaintiff then requested and
received a hearing before an Administrative Law Judge (“ALJ”). Following the hearing,
the ALJ issued a decision finding Plaintiff not disabled from the amended alleged onset
date of May 11, 2012, through the date of the decision. Plaintiff appealed to the Appeals
Council, which rejected her request for review of the ALJ’s 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 129, 131 (11th Cir. 1986). The case

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.

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. 9); Def.’s Consent to Jurisdiction (Doc. 10). 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
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to 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.
42 U.S.C. § 423(d)(1)(A).2
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

2
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.

2

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).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can 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 Guidelines4 (“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

3
McDaniel 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).
4

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

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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
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
Plaintiff, who was forty-seven years old on the amended alleged disability onset

date, has a tenth-grade education. Tr. 35. Following the administrative hearing, and
employing the five-step process, the ALJ found at Step One that Plaintiff “has not
engaged in substantial gainful activity since May 11, 2012, the amended alleged onset
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date[.]” Tr. 16. At Step Two, the ALJ found that Plaintiff suffers from the following
severe impairments: “Hepatitis C; systemic lupus erythematosus (SLE); degenerative
joint disease of the shoulders; history of plantar fasciitis; history of asthma; fibromyalgia;
osteoarthritis of the right knee; and obesity[.]” Id. At Step Three, the ALJ found that
Plaintiff “does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments[.]” Tr. 18. Next, the ALJ
articulated Plaintiff’s RFC as follows:
[Plaintiff] has the residual functional capacity to perform sedentary work as
defined in 20 CFR 416.967(a) except that she can occasionally lift/carry
(including upward pulling) up to 10 pounds and frequently lift/carry
(including upward pulling) less than 10 pounds; she can stand and/or walk
(with normal breaks) for a total of about 6 hours in an 8 hour workday she
is limited to frequent bilateral pushing/pulling (including operation of hand
and/or foot controls) in the upper and lower extremities; she can
occasionally climb ramps and stairs, but never climb ladders, ropes, or
scaffolds; she can frequently balance; she can occasionally crouch and
stoop; she can never kneel or crawl; she is limited to frequent bilateral
reaching (overhead and all directions); she has no visual, or communicative
limitations; she must avoid concentrated exposure to extreme cold, extreme
heat, wetness, humidity, and vibration; she must avoid moderate exposure
to fumes, odors, dusts, gases, and poor ventilation; and she must avoid all
exposure to dangerous machinery or unprotected heights.
Id. Having consulted with a VE at the hearing, the ALJ concluded at Step Four that
Plaintiff “has no past relevant work[.]” Tr. 23. Finally, at Step Five, and relying upon
the testimony of the VE, the ALJ determined that “[c]onsidering [Plaintiff]’s age,
education, work experience, and [RFC], there are jobs that exist in significant numbers in
the national economy that [Plaintiff] can perform[.]” Tr. 24. Accordingly, the ALJ
determined that Plaintiff “has not been under a disability, as defined in the Social

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Security Act, since May 11, 2012, the date the application was filed, with the amended
alleged onset date being the same[.]” Tr. 25.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents four issues for this court’s consideration in review of the ALJ’s

decision: (1) whether the ALJ’s RFC was supported by substantial evidence; (2) whether
the ALJ erred in finding the Plaintiff is able to reach up to two-thirds of the workday; (3)
whether the ALJ erred by finding Plaintiff did not suffer from a severe mental
impairment; and (4) whether the ALJ properly considered the combined impact of
Plaintiff’s impairments. Pl.’s Br. (Doc. 12) at 1.
V.

DISCUSSION
A.

Whether the ALJ’s RFC was supported by substantial evidence

Plaintiff first argues that the ALJ failed to properly evaluate Plaintiff’s RCF.
Plaintiff argues that an RFC “‘must be based on all of the relevant evidence in the case
record,’” Pl.’s Br. (Doc. 12) at 6 (quoting SSR 96-8p), “requires a sufficient summary of
the medical evidence[,] and should not be ‘a conclusory, categorical RFC Assessment’ or
a ‘broad statement.’” Pl.’s Br. (Doc. 12) at 6-7 (quoting Tauber v. Barnhart, 438 F.
Supp. 2d 1366, 1374 (N.D. Ga. 2006)). Plaintiff asserts that the ALJ only “offered a
‘broad statement’” in support of the RFC determination. Pl.’s Br. (Doc. 12) at 7. It
appears that Plaintiff takes specific issue with the following statement made by the ALJ:
[Plaintiff] has a combination of impairments that could reasonably reduce
her ability to function within the limitations otherwise set forth at
Hypothetical #2 used as the RFC in this case[.] Mild to moderate pain at
times versus severe pain appears reasonable during the period at issue and
such has been factored into the RFC at Hypothetical #2.
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Tr. 20.

Plaintiff asserts that statement was too broad and insufficient to properly

summarize the medical evidence and evaluate Plaintiff’s RFC. Pl.’s Br. (Doc. 12) at 6-7.
Plaintiff is incorrect. In this case, the ALJ spent more than five pages of the
decision discussing and citing the medical evidence in the record pertaining to the
relevant time period, reviewing Plaintiff’s testimony, making credibility determinations,
and otherwise explaining the reasoning for the RFC assessment. See Tr. 18-23.
The only specific piece of evidence Plaintiff identifies as having not been
discussed by the ALJ is a report created by Ms. Julie M. Evans, a State Agency Single
Decision Maker (SDM). Pl.’s Br. (Doc. 12) at 7. According to Plaintiff, Ms. Evans
“found [Plaintiff] was limited to a reduced range of light work with an important
limitation: [Plaintiff]’s Overhead Reaching was limited to ‘Occasionally.’” Id. Plaintiff
claims that the ALJ was required to consider and evaluate Ms. Evans’s report and erred
by not doing so. Id.  
The court does not agree. The ALJ was not required to consider or give any
specific weight to the opinion of the SDM. In fact, had the ALJ relied on the SDM’s
opinion, such reliance would have been error. See Siverio v. Comm’r of Soc. Sec., 461 F.
App’x 869, 871 (11th Cir. 2012) (“Indeed, the SSA’s Program Operations Manual
System (“POMS”) explicitly distinguishes RFC assessments produced by an SDM from
those produced by a medical consultant, and states that ‘SDM-completed forms are not
opinion evidence at the appeals level.’”). See also Miller v. Astrue, No. 1:10CV1028WC, 2012 WL 174589, at *3 (M.D. Ala. Jan. 23, 2012) (“The court agrees with the
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parties that the ALJ’s reliance on the SDM’s opinion was indeed error.”); Casey v.
Astrue, 2008 WL 2509030, at *4 n.3 (S.D. Ala. June 19, 2008) (“[A]n RFC assessment
completed by a disability specialist is entitled to no weight.”); Velasquez v. Astrue, 2008
WL 791950, at *3 (D. Colo. Mar. 20, 2008) (Opinion of SDM is “entitled to no weight as
a medical opinion, nor to consideration as evidence from other non-medical sources.”);
Bolton v. Astrue, 2008 WL 2038513, at *4 (M.D. Fla. May 12, 2008) (“‘An SDM is not a
medical professional of any stripe, and’ a finding from such an individual is ‘entitled to
no weight as a medical opinion, nor to consideration as evidence from other non-medical
sources.’”).
To the extent Plaintiff argues that the ALJ should have relied on the opinion of
Ms. Evans because she authored “[t]he only functional opinion in the record,” Plaintiff is
again incorrect.

It is not a physician or SDM but the ALJ who is charged with

formulating the RFC at the administrative hearing level. 20 C.F.R. § 416.946(c). The
ALJ must assess a claimant’s RFC “based on all of the relevant medical and other
evidence[,]” and, in general, the claimant will be responsible for providing the evidence
used to make a finding about the RFC. § 416.945(a)(3). An ALJ’s RFC assessment may
be supported by substantial evidence, even in the absence of any examining medical
source opinion addressing Plaintiff’s functional capacity. See, e.g., Green v. Soc. Sec.
Admin., 223 F. App’x 915, 923 (11th Cir. 2007) (unpublished opinion) (finding the ALJ’s
RFC assessment supported by substantial evidence where he rejected treating physician’s
opinion properly and formulated the plaintiff’s RFC based on treatment records, without
a physical capacities evaluation by any physician); see also Dailey v. Astrue, 2012 WL
8

3206482, at *9 (S.D. Ala. July 18, 2012) (“[A]n ALJ may reach an RFC determination in
appropriate circumstances on a record that does not include an RFC opinion from a
treating or examining medical source.”). The RFC was supported by substantial evidence
and Plaintiff has not established any error by the ALJ.
B.

Whether the ALJ erred in finding the Plaintiff is able to reach up to
two-thirds of the workday

Next, Plaintiff argues that the ALJ erred by finding that Plaintiff was capable of
frequently, meaning one-third to two-thirds of the workday, using her upper extremities
for reaching. Pl.’s Br. (Doc. 12) at 8. Plaintiff asserts that because “[Plaintiff] is right
handed . . . and has an unrepaired torn right rotator cuff,” her “ability to use her upper
extremities is more limited than found by the ALJ.” Id. Plaintiff argues that Dr. Stuart
May, M.D., examined Plaintiff in 2011 and noted Plaintiff suffered from a right shoulder
rotator cuff tear, and that Ms. Evans, SDM, also found Plaintiff’s ability to reach more
limited than the ALJ. Id. at 9.
However, as Plaintiff also notes, the ALJ discussed with the VE the implications
of additional reaching limitations. Pl.’s Br. (Doc. 12) at 9; Tr. 50-51. The VE testified
that an individual limited in a manner consistent with the RFC, but with the additional
limitation that bilateral upper extremity reaching be limited to “occasional” instead of
“frequent,” would be capable of performing work as a call out operator or a child
attendant. Tr. 51. The VE testified that a call out operator, DOT number 237.367-014,
encompasses 670 jobs in Alabama and 66,000 in the national economy and a child

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attendant, DOT number 349.677-018, encompasses 620 jobs in Alabama and 111,000 in
the national economy. Tr. 51-52.
Once the claimant proves that she cannot return to her past relevant work,
the burden shifts to the Commissioner to show that the claimant can
perform other jobs that are significant in number in the national economy,
considering age, education, and work experience. The burden is on the
ALJ to provide evidence about the existence of other work in the national
economy that a claimant can perform. The ALJ may satisfy this burden and
provide this evidence through a VE’s testimony. In order for a VE’s
testimony to constitute substantial evidence, the ALJ must pose a
hypothetical question which comprises all of the claimant’s impairments.
Further, the ALJ must articulate specific jobs that exist in national economy
that a claimant can perform. A claimant must show that she could not
perform those jobs in order to prove disability. Work exists in the
national economy when it exists in significant numbers either in the
region where the claimant lives or in several other regions of the
country. The ALJ, relying on the VE’s testimony, and not the VE,
determines whether a specific number of jobs constitutes a significant
number. We have upheld the ALJ’s finding that 174 small appliance
repairman position in the area in which the claimant resided
established the existence of work in significant numbers.
Brooks v. Barnhart, 133 F. App’x 669, 670-71 (11th Cir. 2005) (internal citations
omitted) (emphasis added).
In this case, the VE found Plaintiff capable of performing two type of jobs
encompassing a total of 1,290 jobs regionally and 177,000 nationally. Because it is clear
that a significant number of call out operators and child attendants exist in the national
economy, both jobs that the VE testified Plaintiff able to perform even with the additional
reaching limitation, the court finds it unnecessary to discuss the ALJ’s decision to include
frequent reaching in the RFC. Even if the ALJ had erred by including frequent reaching
in the RFC, such error would be harmless as there are other jobs that exist in significant

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numbers in the national economy that Plaintiff could perform, even with only occasional
reaching.
C.

Whether the ALJ erred by finding Plaintiff did not suffer from a
severe mental impairment

Plaintiff also argues that the ALJ erred by failing to find depression, anxiety, and
schizoaffective disorder to be severe mental impairments. Pl.’s Br. (Doc. 12) at 10.
At the second step of the sequential-disability determination, the ALJ must
“consider the medical severity of [the claimant’s] impairments.” Phillips,
357 F.3d at 1237 (quoting 20 C.F.R. § 4[16.9]20(a)(4)(ii)). In doing so, the
ALJ must determine whether the impairments, alone or in combination,
“significantly limit” the claimant’s “physical or mental ability to do basic
work skills.” Phillips, 357 F.3d at 1237 (citing 20 C.F.R. § 4[16.9]20(c)).
An impairment should be considered “not severe” only if “it is a slight
abnormality which has such a minimal effect on the individual that it would
not be expected to interfere with the individual’s ability to work,
irrespective of age, education or work experience.” Bridges v. Bowen, 815
F.2d 622, 625 (11th Cir. 1987) (citation omitted); see also McDaniel, 800
F.2d at 1031 (defining claimant’s burden as mild). However, a diagnosis or
a mere showing of “a deviation from purely medical standards of bodily
perfection or normality” is insufficient; instead, the claimant must show the
effect of the impairment on her ability to work. McCruter v. Bowen, 791
F.2d 1544, 1547 (11th Cir. 1986).
Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005) (footnote omitted).
Here, the ALJ explicitly stated that Plaintiff’s medically determinable mental
impairment does not cause more than minimal limitation in her ability to perform basic
mental work activities and is therefore nonsevere. Tr. 17. In making such a finding, the
ALJ agreed with Dr. Hope Jackson, Ph.D., that Plaintiff suffered from only mild
restriction in activities of daily living, mild difficulties in social functioning, and mild
difficulties with regard to concentration, persistence or pace, and that Plaintiff has

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experienced no episodes of decompensation that have been of extended duration. Id.
The ALJ continued,
In addition, I note that although there are allegations of limits to
[Plaintiff]’s activities of daily living due to emotional or mental symptoms,
[Plaintiff] reports being able to currently work part time, take care of her
son, attend Bible study, sing in the church choir, clean, drive, handle money
without issue, crochet, play cards, play dominoes, attend social groups
regularly and follow written and spoken instructions well. These activities
of daily living are not supportive of a finding of disabling mental
impairment, or even a severe mental impairment.
...
Because [Plaintiff]’s medically determinable mental impairment causes no
more than “mild” limitation in any of the first three functional areas and
“no” episodes of decompensation which have been of extended duration in
the fourth area, it is nonsevere . . . .
Tr. 17. The ALJ fully explained his reasoning for finding Plaintiff’s mental impairments
to be nonsevere and did not error by doing so.
Plaintiff also asserts that the ALJ failed to adequately consider the whole record
because “[t]he ALJ never addressed the fact Dr. Jackson found [Plaintiff] had a severe
mental impairment, an ‘Affective Disorder’ or a mood disorder.” Pl.’s Br. (Doc. 12) at
10. Plaintiff is incorrect. Prior to discussing Dr. Jackson’s findings, the ALJ directly
noted “Dr. Jackson evaluated [Plaintiff] under 12.04 – Affective Disorders.” Tr. 17.
Similarly, Plaintiff argues that she “has considered herself disabled for many years” and
“has regularly been diagnosed with a mental impairment.” Pl.’s Br. (Doc. 12) at 11.
However, a diagnosis of a mental condition alone does not satisfy the requirements for a
severe impairment. McCruter, 791 F.2d at 1547. Plaintiff has not alleged, and is unable
to demonstrate, that any mental impairment affects her ability to work.

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D.

Whether the ALJ properly considered the combined impact of
Plaintiff’s impairments

Finally, Plaintiff argues “[t]here is no evidence that the ALJ considered
[Plaintiff]’s [mental and physical] impairments in combination when formulating his
RFC finding.” Pl.’s Br. (Doc. 12) at 14. Plaintiff is correct that the Social Security Act
requires that all impairments, regardless of their severity, be considered in combination.
See 20 C.F.R. § 416.923 (“we will consider the combined effect of all of your
impairments without regard to whether any such impairment, if considered separately,
would be of sufficient severity”).
The court disagrees with Plaintiff’s assertion that “there is no evidence” that the
ALJ did so in this case. The court notes the ALJ’s direct statement, “In making this
finding, I have considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other
evidence.” Tr. 18. The ALJ discussed that Plaintiff reported problems with anxiety and
hearing voices of dead people. Id. Additionally, the ALJ noted that Plaintiff said she is
depressed often, and that she takes medication for depression/anxiety, but does not attend
therapy. Id. The ALJ stated, however, that Plaintiff’s own description of her physical
and mental impairments alone is not enough to establish that Plaintiff is disabled. Tr. 21.
It is clear that the ALJ did consider Plaintiff’s physical and mental impairments, whether
nonsevere or severe, throughout the formulation of the RFC.
Similarly, Plaintiff argues that “[t]he ALJ said he considered how [Plaintiff]’s
obesity impacted her functioning under Social Security Ruling 02-1p; however, the ALJ
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never actually evaluated it.” Pl.’s Br. (Doc. 12) at 14. The court finds that statement to
also be inaccurate. The ALJ explicitly noted Plaintiff’s height and weight, Tr. 20, and
mentioned Plaintiff’s obesity or weight no less than six times throughout the decision.
Tr. 16, 20, 21, 22, 23. The ALJ clearly understood his duty to consider Plaintiff’s obesity
pursuant to SSR 02-1p. In fact, the ALJ discussed that duty in detail:
Obesity is an impairment considered in this [c]ase. I have considered the
impact of [Plaintiff]’s obesity in exacerbating her problems and functional
limitations caused by her other impairments. Although it is no longer a
Medical Listing, obesity is considered along with other impairment[s] in
assessing limitation of functioning. We are instructed that an assessment
should a[ls]o be made of the effect obesity has upon the individual’s ability
to perform routine movement and necessary physical activity within the
work environment. Individuals with obesity may have problems with the
ability to sustain a function over time. “In cases involving obesity, fatigue
may affect the individual’s physical and mental ability to sustain work
activity. This may be particularly true in cases involving sleep apnea.”
Furthermore, the combined effects of obesity with other impairments may
be greater than might be expected without obesity[.] For example,
someone with obesity and arthritis affecting a weight-bearing join may
have more pain and limitation than might be expected from the arthritis
alone (Social Security Ruling 02-1p).
Tr. 22. The ALJ then continued to apply that ruling:
Although obesity is an impairment that has been considered in this case, the
composite available medical evidence of record does not reveal that this
impairment has otherwise reduced the functional limitations and
restrictions, previously set forth at Finding of Fact Number 4. The [RFC]
stated herein accommodates [Plaintiff]’s obesity.
Id. The ALJ properly considered all of Plaintiff’s impairments in combination and no
error occurred.

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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.
A separate judgment will issue.
Done this 18th day of November, 2015.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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