Asberry v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/15/13. (ASL)

FILED
2013 Mar-15 PM 02:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ELLA BURNS ASBERRY,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 2:11-CV-3913-VEH
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MEMORANDUM OPINION1
Plaintiff Ella Burns Asberry (“Ms. Asberry”) brings this action pursuant to 42
U.S.C. § 405(g), § 205(g) of the Social Security Act (the “Act”). She seeks review
of a final adverse decision of the Commissioner of the Social Security Administration

The court recently became aware that Carolyn W. Colvin was named the
Acting Commissioner of the Social Security Administration on February 14, 2013.
See http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February
14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security.”)
(last accessed on Mar. 8, 2013). Under 42 U.S.C. § 405(g), “[a]ny action instituted
in accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in
such office.” Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the
Federal Rules of Civil Procedure, the court has substituted Carolyn W. Colvin for
Michael Astrue in the case caption above and HEREBY DIRECTS the clerk to do
the same party substitution on CM/ECF.
1

(the “Commissioner” or “Secretary”), who denied her application for Disability
Insurance Benefits (“DIB”).

Ms. Asberry timely pursued and exhausted her

administrative remedies available before the Commissioner. The case is ripe for
review pursuant to 42 U.S.C. § 405(g), § 205(g) of the Act.
FACTUAL AND PROCEDURAL HISTORY
Ms. Asberry was a 57-year-old female at the time of her hearing before the
administrative law judge (the “ALJ”) held on January 5, 2011. (Tr. 228, 33). In
terms of education, Ms. Asberry completed high school and attended college for three
years. (Tr. 41, 174).
Ms. Asberry’s prior work experience over the past fifteen years was as a
customer service representative for AT&T. (Tr. 57). As the vocational expert
testified during the hearing, this position falls into the classification of “sedentary and
skilled at the five level” work. (Tr. 57).
Ms. Asberry applied for DIB on October 23, 2009. (Tr. 20, 65). Ms. Asberry
maintains that she became disabled on February 1, 2008, due to lymphedema2 of the
right arm and hypertension. (Tr. 65). Her claim was denied initially on January 21,
2010. (Tr. 20, 65).
Lymphedema is defined as swelling or “edema due to faulty lymphatic
drainage.” See http://www.merriam-webster.com/medical/lymphedema (accessed on
Mar. 8, 2013).
2

2

Ms. Asberry timely requested a hearing before an ALJ on February 12, 2010.
(Tr. 20, 74). A video hearing was held on January 5, 2011, with Ms. Asberry
appearing in Birmingham, Alabama. (Tr. 20, 33).
On January 13, 2011, the ALJ concluded Ms. Asberry was not disabled as
defined by the Act and denied her DIB application. (Tr. 20-28). On February 10,
2011, Ms. Asberry submitted a request for review of the ALJ’s decision. (Tr. 11).
On September 15, 2011, the Appeals Council denied review, which resulted in the
ALJ’s disability determination that was adverse to Ms. Asberry becoming the final
decision of the Commissioner. (Tr. 1).
On November 14, 2011, Ms. Asberry initiated her lawsuit with this court
seeking a review of the Commissioner’s decision. (Doc. 1). On May 15, 2012, Ms.
Asberry filed a brief (Doc. 10) in support of her appeal, and on June 18, 2012, the
Commissioner followed with his responsive brief. (Doc. 11). Ms. Asberry elected
not to file a reply brief. This court has carefully considered the record, and for the
reasons stated below, reverses the Commissioner’s denial of benefits, and remands
the case for further development and consideration.
STANDARD OF REVIEW
The court’s review of the Commissioner’s final action is narrowly
circumscribed. The function of this court is to determine whether the decision of the
3

Commissioner is supported by substantial evidence and whether proper legal
standards were applied. Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v.
Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This court must “scrutinize the
record as a whole to determine if the decision reached is reasonable and supported by
substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). This court will determine that the ALJ’s opinion is supported by substantial
evidence if it finds “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. Substantial evidence is “more than a scintilla,
but less than a preponderance.” Id. Factual findings that are supported by substantial
evidence must be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish her entitlement for a period of
4

disability, the claimant must be disabled as defined by the Act and the Regulations
promulgated thereunder.3 The Regulations define “disabled” as the “inability to do
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 twelve (12) months.” 20
C.F.R. § 404.1505(a). To establish an entitlement to disability benefits, a claimant
must provide evidence of a “physical or mental impairment” which “must result from
anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §
404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the Secretary;
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in the national
economy.

The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts
400 to 499, as current through February 28, 2012.
3

5

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to former applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the
claimant has satisfied steps one and two, she will automatically be found disabled if
she suffers from a listed impairment. If the claimant does not have a listed
impairment but cannot perform her work, the burden shifts to the Secretary to show
that the claimant can perform some other job.” Pope, 998 F.2d at 477; accord Foote
v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Foote,
67 F.3d at 1559.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ found Ms. Asberry had not engaged in substantial gainful activity
since the alleged onset date of her disability, i.e., February 1, 2008. (Tr. 22 ¶ 2).
Thus, the claimant satisfied step one of the five-step test. 20 C.F.R. § 404.1520(b).
Under step two, the ALJ found that “[t]he claimant has the following severe
impairments: lymphedema of the right arm, status-post mastectomy; status-post right
knee surgery[.]” (Tr. 22 ¶ 3). Accordingly, the ALJ concluded that Ms. Asberry
satisfied the second step of the sequential disability evaluative process. 20 C.F.R. §
404.1520(c). The ALJ also determined at this stage that Ms. Asberry’s medically
6

determinable impairments of hypertension, obstructive sleep apnea, and obesity were
non-severe conditions. (Tr. 22).
At step three, the ALJ concluded that Ms. Asberry did not have an impairment
or a group of impairments that met or medically equaled one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 23 ¶ 4). Ms. Asberry does not
contest this determination on appeal.
The ALJ then evaluated Ms. Asberry’s residual functional capacity (“RFC”),
and the claimant was found to have the capacity:
[T]o perform light work as defined in 20 CFR 404.1567(b), with the
ability to lift, carry, push, and pull up to twenty pounds occasionally and
ten pounds frequently, to stand/walk for about a total of six hours each
workday, and to sit for about a total of six hours each workday.
However, the claimant is unable to climb ladders, ropes, or scaffolds and
should only occasionally crouch and crawl. The claimant also retains
the ability to frequently balance, stoop, kneel, and climb stairs/ramps.
(Tr. 23 ¶ 5).4
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The Regulations define light work as:

(b) Light work. Light work involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing 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
7

The ALJ then determined that Ms. Asberry’s RFC did not prevent her from
performing her past relevant sedentary work as a customer service representative.
(Tr. 26). Because the ALJ found that Ms. Asberry was able to perform past relevant
work, it was unnecessary to continue with any further analysis.
Nevertheless, the ALJ elected to make an alternative finding that Ms. Asberry
was capable of making a successful adjustment to other jobs that exist in significant
numbers in the national economy. (Tr. 26-27). Examples of such positions included
employment as a receptionist, appointment clerk, and order clerk.

(Tr. 27).

Accordingly, the ALJ concluded that Ms. Asberry was not disabled as defined by the
Act, and denied her DIB claim. (Tr. 27 ¶ 7; Tr. 28).
ANALYSIS
The court can reverse a finding of the Secretary if it is not supported by
substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th

factors such as loss of fine dexterity or inability to sit for long periods
of time.
20 C.F.R. § 404.1567(b) (current through February 28, 2012).
8

Cir. 1980)).5
Ms. Asberry primarily asserts that the Commissioner’s decision is deficient
because (i) the ALJ did not adequately consider obesity in determining Ms. Asberry’s
RFC (Doc. 10 at 5); and (ii) the ALJ did not support his residual functional findings
with substantial evidence. (Doc. 10 at 8). Having considered these issues and studied
the record, the court agrees with Ms. Asberry that, under the circumstances of her
case, the Commissioner has committed reversible error.
I.

THE ALJ’S DECISION DOES NOT SUBSTANTIATE THAT HE
FOLLOWED THE PROPER LEGAL STANDARDS WHEN
DETERMINING MS. ASBERRY’S RFC.
The ALJ found that Ms. Asberry had a collection of medically determinable

impairments with some of those independently satisfying the severity threshold and
others not. (Tr. 22-23). However, in formulating Ms. Asberry’s RFC, the ALJ only
expressly credited those impairments that he determined were severe. (See Tr. 24
(listing all of Ms. Asberry’s conditions, indicating that “[t]he medical evidence of
record supports some of the claimant’s allegations[,]” and then discussing only Ms.
Asberry’s right mastectomy in 2003 “which led to lymphedema of her right arm” and
her surgery on her right knee in 2006)); (see also Tr. 26 (summarizing RFC
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981.
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determination and again referencing only Ms. Asberry’s “lymphedema of the right
arm and associated pain” and her “status-post right knee surgery”)).
In Walker v. Bowen, 826 F.2d 996 (11th Cir. 1987), the Eleventh Circuit
explained the ALJ’s obligation to consider severe as well as non-severe conditions
in combination when deciding a claimant’s RFC:
We also find that the ALJ failed to consider all of Walker's
impairments in evaluating the evidence. It is established that the ALJ
must consider the combined effects of a claimant’s impairments in
determining whether she is disabled. Jones, 810 F.2d at 1006. When “a
claimant has alleged a multitude of impairments, a claim for social
security benefits may lie even though none of the impairments,
considered individually, is disabling.” Bowen v. Heckler, 748 F.2d 629,
635 (11th Cir. 1984). Furthermore, “it is the duty of the ... [ALJ] to
make specific and well-articulated findings as to the effect of the
combination of impairments and to decide whether the combined
impairments cause the claimant to be disabled.” Id.; 20 C.F.R. §
416.923. It is clear that in this case the ALJ did not consider the
combination of Walker’s impairments before determining her residual
functional capacity. The ALJ made specific reference only to Walker’s
left ankle and obesity. The ALJ’s findings do not mention Walker's
arthralgias in the right knee, phlebitis in the right arm, hypertension,
gastrointestional problems, or asthma, except to the extent that these
“subjectiv[e] complain[t]s do not establish disabling pain.”
Furthermore, Walker complains of pain in both legs. We discuss further
the inadequacy of the ALJ's treatment of Walker’s pain complaints in
Section III. As we observed in Chester, 792 F.2d 129, “pain may not be
disabling in and of itself, [but] it may be disabling when considered
along with . . . other impairments.” Id. at 132. The ALJ’s failure to
consider Walker’s physical impairments and pain complaints in
combination alone requires that the decision be reversed and remanded
for reconsideration. Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir.
1985). Thus, we remand this case for review of all of the evidence
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under the proper legal standards.
Walker, 826 F.2d at 1001-02 (emphasis added).
Here, although the ALJ found Ms. Asberry’s obesity, hypertension, and sleep
apnea to be non-severe conditions when he evaluated them separately (Tr. 22-23), the
ALJ’s decision lacks any indication that he ever considered their collective impact
with each other or in combination with her two severe impairments when he
determined her RFC. Cf. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (“In
evaluating a claimant’s residual function capacity, the ALJ must consider a claimant’s
impairments in combination.” (citing 20 C.F.R. § 404.1545 (1989))).
With respect to Ms. Asberry’s obesity (and her related condition of sleep
apnea), this omission is particularly troubling to the court as it is undisputed that Ms.
Asberry’s body mass index (“BMI”) of 42 puts her in the “extreme” obesity range.
(See Doc. 10 at 5-6 (detailing Ms. Asberry’s BMI)); see also SSR 02-1P, 2000 WL
628049, at *2 (S.S.A.) (Sept. 12, 2002) (“Level III, termed ‘extreme’ obesity and
representing the greatest risk for developing obesity-related impairments, includes
BMIs greater than or equal to 40.”).
SSR 02-01p covers the Commissioner’s duty to consider obesity as a medically
determinable impairment and states in part:
8. How Do We Evaluate Obesity in Assessing Residual Functional
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Capacity in Adults and Functional Equivalence in Children?
Obesity can cause limitation of function. The functions likely to be
limited depend on many factors, including where the excess weight is
carried. An individual may have limitations in any of the exertional
functions such as sitting, standing, walking, lifting, carrying, pushing,
and pulling. It may also affect ability to do postural functions, such as
climbing, balance, stooping, and crouching. The ability to manipulate
may be affected by the presence of adipose (fatty) tissue in the hands
and fingers. The ability to tolerate extreme heat, humidity, or hazards
may also be affected.
The effects of obesity may not be obvious. For example, some people
with obesity also have sleep apnea. This can lead to drowsiness and
lack of mental clarity during the day. Obesity may also affect an
individual’s social functioning.
An assessment should also 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. As
explained in SSR 96-8p (“Titles II and XVI: Assessing Residual
Functional Capacity in Initial Claims”), our RFC assessments must
consider an individual’s maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and continuing
basis. A “regular and continuing basis” means 8 hours a day, for 5 days
a week, or an equivalent work schedule. 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.
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 joint may have more pain
and limitation than might be expected from the arthritis alone. . . .
As with any other impairment, we will explain how we reached our
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conclusions on whether obesity caused any physical or mental
limitations.
SSR 02-1p, 2000 WL 628049, at *6-7 (S.S.A.) (Sept. 12, 2002) (footnote omitted)
(emphasis added); cf. Thomason v. Barnhart, 344 F. Supp. 2d 1326, 1330 (N.D. Ala.
2004) (“The ALJ failed to take plaintiff's obesity into account and its effect on her
medical impairments.”) (footnotes omitted).
In response to this issue, the Commissioner has not cited to any controlling
authority which overrules the Eleventh Circuit’s holding in Walker. Instead, the
Commissioner points to Hutchinson v. Astrue, 408 Fed. App’x 324, 327 (11th Cir.
2011), an unpublished Eleventh Circuit opinion, and Wilson v. Barnhart, 284 F.3d
1219, 1224-25 (11th Cir. 2002). (Doc. 11 at 6-7). Of course, the unpublished
decision is not binding on this court, and, in any event, the undersigned is not
persuaded by it as it lacks any discussion of Walker6 or an evaluation of obesity as a
Hutchinson cites to Jones v. Department of Health and Human Servs., 941
F.2d 1529 (11th Cir. 1991). In Jones, the Eleventh Circuit observed that it had
previously found the following statement made by an ALJ to be adequate “regarding
combined impairment: ‘[B]ased upon a thorough consideration of all evidence, the
ALJ concludes that appellant is not suffering from any impairment, or a combination
of impairments of sufficient severity to prevent him from engaging in any substantial
gainful activity for a period of at least twelve continuous months.’” Jones, 941 F.2d
at 1533 (quoting Wheeler v. Heckler, 784 F.2d 1073, 1076 (11th Cir. 1986) (emphasis
in original)). The ALJ’s decision here does not so straightforwardly indicate that he
considered the totality of Ms. Asberry’s collection of impairments in combination
when he determined her RFC.
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medically determinable impairment.
Additionally, Wilson is not on point as that decision addressed the issue of
whether “the district court erred when it concluded that the combined effects of
Wilson’s impairments met or equaled the listing for a finding of disability.” 284 F.3d
at 1224. Thus, the focus of Wilson is upon an entirely different step of the disability
sequential process. Also, Wilson neither discusses Walker nor the treatment of
obesity as an impairment.
Here, the court is focusing upon the adequacy of the ALJ’s RFC finding in
light of the fact that the ALJ strictly limited his discussion in that section of his
decision to Ms. Asberry’s severe impairments only. Perhaps the ALJ did also factor
in Ms. Asberry’s non-severe impairments in combination (including in particular her
obesity) when formulating Ms. Asberry’s RFC, but the court simply cannot speculate
that the ALJ followed proper legal standards when the express wording used in his
decision indicates otherwise.
Therefore, comparable to Walker, Swindle, and Barnhart, because the court
Moreover, to the extent that Jones and Walker conflict in their treatment of
combined impairments, this court is bound to follow Walker as it precedes Jones and
a subsequent panel cannot overrule an earlier one. See United States v. Hogan, 986
F.2d 1364, 1369 (11th Cir.1993) (“[I]t is the firmly established rule of this Circuit
that each succeeding panel is bound by the holding of the first panel to address an
issue of law, unless and until that holding is overruled en banc, or by the Supreme
Court.”).
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cannot confirm that the ALJ followed the proper legal standards when arriving at Ms.
Asberry’s RFC given her collection of severe and non-severe impairments, remand
for further consideration is appropriate.
II.

IN THE ABSENCE OF A SUPPORTING MEDICAL SOURCE
STATEMENT OR A PHYSICAL CAPACITIES EVALUATION
BY A PHYSICIAN THAT CONSIDERS THE IMPACT OF MS.
ASBERRY’S SEVERE IMPAIRMENTS IN COMBINATION
WITH HER NON-SEVERE OBESITY, SLEEP APNEA, AND
HYPERTENSION, THE ALJ’S RFC DETERMINATION THAT
SHE CAN PERFORM A REDUCED RANGE OF LIGHT WORK
IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
The ALJ primarily premised his finding that Ms. Asberry’s was capable of

performing a reduced range of work at the light level (i.e., a more demanding
exertional measure than her previous relevant employment as a customer service
representative) on “the opinion of State agency medical consultant Robert Heilpern,
M.D.” (“Dr. Heilpern”). (Tr. 25); (see id. (“This opinion [i.e., by Dr. Heilpern] has
been given significant weight, as it is consistent with the weight of the objective
medical evidence.”)). However, as Ms. Asberry correctly points out (Doc. 10 at 8),
the opinion of a non-examining physician “is entitled to little weight and taken alone
does not constitute substantial evidence to support an administrative decision.”
Swindle, 914 F.2d at 226 n.3 (11th Cir. 1990) (citing Broughton v. Heckler, 776 F.2d
960, 962 (11th Cir. 1985)).

15

Dr. Heilpern’s physical capacity evaluation of Ms. Asberry is additionally
deficient for the ALJ to substantially rely upon as the only conditions he listed as
being factored into his assessment were Ms. Asberry’s status post mastectomy and
her hypertension. (Tr. 363). Therefore, omitted from the scope of Dr. Heilpern’s
functional report was the combined vocational consequences attributable to Ms.
Asberry’s severe right knee impairment as well as her obesity and sleep apnea.
Further, absent from the record is another physical capacities assessment or a
medical source statement7 conducted by a physician that substantiates Ms. Asberry’s
ability to perform a reduced range of light work given her combination of severe and
non-severe impairments. Such an omission from the record is significant to the
substantial evidence inquiry pertaining to the ALJ’s RFC determination.

Cf.

Rohrberg v. Apfel, 26 F. Supp. 2d 303, 311 (D. Mass. 1998) (“The ALJ failed to refer
to-and this Court has not found-a proper, medically determined RFC in the record.”).
The court acknowledges that the ALJ did refer within his decision to the
consultative examination of Ms. Asberry by Rodolfo Veluz, M.D. (“Dr. Veluz”). (Tr.
25-26 (citing Exhibit 11F)). However, such documentation from Dr. Veluz is
“Medical source statements are ‘medical opinions submitted by acceptable
medical sources, including treating sources and consultative examiners, about what
an individual can still do despite a severe impairment(s), in particular about an
individual’s physical and mental abilities to perform work-related activities on a
sustained basis.’” SSR 96-5p, 1996 WL 374183, at *4 (S.S.A.) (July 2, 1996).
7

16

reported merely as raw physical findings applicable to Ms. Asberry. (Tr. 360-62).
Moreover, Dr. Veluz’s report does not include any opinion about the effect of
Ms. Asberry’s impairments in vocational terms or attach a physical capacities
evaluation of her. See, e.g., Rohrberg, 26 F. Supp. 2d at 311 (“Where the ‘medical
findings in the record merely diagnose [the] claimant’s exertional impairments and
do not relate these diagnoses to specific residual functional capabilities such as those
set out in 20 C.F.R. § 404.1567(a) . . . [the Commissioner may not] make that
connection himself.’” (quoting Rosado v. Secretary of Health and Human Servs., 807
F.2d 292, 292 (1st Cir. 1986))).
As another district judge of this court aptly explained the RFC issue in the
context of an ALJ who comparably determined, without the benefit of a physical
capacities evaluation conducted by a physician,8 that the claimant was not disabled:
While the Record contains Ms. Rogers’ [s] medical treatment
history, it lacks any physical capacities evaluation by a physician. The
ALJ made his residual functional capacity evaluation without the benefit
of such evaluation. An ALJ is allowed to make some judgments as to
residual physical functional capacity where so little physical impairment
is involved that the effect would be apparent to a lay person.
Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15
As explained above, here the only physical capacity assessment included in
the record was completed by Dr. Heilpern, a non-examining physician, and his
assessment reflects that, after undertaking a paper review of her medical records, he
only considered two of Ms. Asberry’s five impairments when he generated that
document.
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17

(1st Cir. 1996). In most cases, including the case at bar, the alleged
physical impairments are so broad, complex, and/or ongoing that a
physician’s evaluation is required. Id. In order to have developed a full,
fair record as required under the law, the ALJ should have re-contacted
Ms. Roger’s [sic] physicians for physical capacities evaluations and/or
sent her to physicians for examinations and physical capacities
evaluations. Further, Ms. Rogers’ [s] ability to lift and to manipulate
objects must be thoroughly evaluated by at least one physician. These
evaluations shall be obtained upon remand. Ms. Rogers’[s] residual
functional capacity was not properly determined nor supported by
substantial evidence in this case.
Rogers v. Barnhart, No. 3:06-CV-0153-JFG, (Doc. 13 at 5) (N.D. Ala. Oct. 16, 2006)
(emphasis added); see also Manso-Pizarro, 76 F.3d at 17 (“With a few exceptions
(not relevant here), an ALJ, as a lay person, is not qualified to interpret raw data in
a medical record.” (citing Perez v. Secretary of Health and Human Servs., 958 F.2d
445, 446 (1st Cir. 1991))) (emphasis added); Rohrberg, 26 F. Supp. 2d at 311 (“An
ALJ is not qualified to assess a claimant’s RFC on the basis of bare medical findings,
and as a result an ALJ’s determination of RFC without a medical advisor’s
assessment is not supported by substantial evidence.” (citing Rodriguez v. Secretary
of Health and Human Servs., 893 F.2d 401, 403 (1st Cir. 1989))) (emphasis added);
cf. Giddings v. Richardson, 480 F.2d 652 (6th Cir. 1973) (“To meet such a prima
facie case it is not sufficient for the government to rely upon inconclusive medical
discussion of a claimant’s problems without relating them to the claimant’s residual
capacities in the field of employment.”) (emphasis added).
18

Comparable to Rogers, Manso-Pizarro, and other similar cases, a lay person
such as an ALJ is not able to discern Ms. Asberry’s work-related exertional abilities
and appropriate non-exertional restrictions based upon the unfiltered information
contained in her medical records given her variety of severe and non-severe
impairments. Therefore, in the absence of a medical source statement and/or any
physical capacities evaluation conducted on Ms. Asberry by a physician that
considers the vocational impact of all her impairments and corroborates the ALJ’s
determination that she is capable of performing a reduced range of light work, the
record has not been adequately developed. See, e.g., Cowart v. Schweiker, 662 F.2d
731, 732 (11th Cir. 1981) (citing Thorne v. Califano, 607 F.2d 218, 219 (8th Cir.
1979)); see also Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997) (“The
record’s virtual absence of medical evidence pertinent to the issue of plaintiff’s RFC
reflects the Commissioner’s failure to develop the record, despite his obligation to
develop a complete medical history.”).
Likewise, the ALJ’s determination that Ms. Asberry can perform light work
with certain non-exertional restrictions is not supported by substantial evidence.
Accordingly, the decision of the Commissioner is due to be reversed for this
independent reason, and the case remanded for further proceedings consistent with
this memorandum opinion.
19

CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner’s final decision is
not supported by substantial evidence.

Accordingly, the decision of the

Commissioner will be remanded by separate order.
DONE and ORDERED this the 15th day of March, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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