Garren v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 2/8/13. (ASL)

FILED
2013 Feb-08 PM 03:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHEILA ANN GARREN,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner,
Social Security Administration,
Defendant.

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MEMORANDUM OF OPINION
I.

Introduction.
The plaintiff, Sheila Ann Garren, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying her
application for a period of disability, Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). Ms. Garren timely pursued and exhausted
her administrative remedies and the decision of the Commissioner is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Ms. Garren was forty-five years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision. (Tr. at 182.) She has a 12th grade education that
included special education courses. (Id. at 124, 180.) Ms. Garren can communicate

in English, but states that she can read only simple words. (Id. at 139, 145.) Her past
work experience includes employment as a housekeeper. (Id. at 119–20.) Ms. Garren
claims that she became disabled on June 1, 2003, due to blood clots in her right leg and
lower back pain. (Id. at 119.) Ms. Garren also states that she has difficulty sleeping
and walking long distances. (Id.)
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§
404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The
first step requires a determination of whether the claimant is “doing substantial
gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he or she is, the
claimant is not disabled and the evaluation stops. Id. If he or she is not, the
Commissioner next considers the effect of all of the physical and mental impairments
combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments
must be severe and must meet the durational requirements before a claimant will be
found to be disabled. Id. The decision depends on the medical evidence in the record.
See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant’s impairments
are not severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
Otherwise, the analysis continues to step three, which is a determination of whether

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the claimant’s impairments meet or equal the severity of an impairment listed in 20
C.F.R. pt. 404, Subpart P, Appendix 1.

20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the claimant’s impairments fall within this category, he or she
will be found disabled without further consideration.

Id.

If they do not, a

determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. § 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step. Id.
Step five requires the court to consider the claimant’s RFC, as well as the claimant’s
age, education, and past work experience in order to determine if he or she can do
other work. 20 C.F.R. §§ 404.1520(a)(4)(v) 416.920(a)(4)(v). If the claimant can do
other work, the claimant is not disabled. Id.
Applying the sequential evaluation process, the ALJ found that Ms. Garren met
the insured status requirements of the Social Security Act through September 30,
2011. (Tr. at 20.) Furthermore, the ALJ determined that, while Ms. Garren had

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engaged in substantial gainful activity since her alleged disability began, this work
attempt was ultimately unsuccessful. (Id.) According to the ALJ, Plaintiff’s mild
degenerative disk disease and history of deep vein thrombosis are considered
“severe” based on the requirements set forth in the regulations. (Id.) However, the
ALJ found that these impairments neither meet nor medically equal any of the listed
impairments in Appendix 1, Subpart P, Regulations No. 4. (Id. at 21.) The ALJ also
found that Ms. Garren had other “medically determinable impairments,” including
anemia, hypertension, and obesity, but that these impairments did not significantly
limit Ms. Garren’s ability to work. (Id.) Furthermore, the ALJ stated that the record
did not contain objective evidence showing that Ms. Garren had diminished
intellectual functioning. (Id.)
The ALJ did not find Ms. Garren’s allegations to be totally credible, and he
determined that she has the following RFC: light work with the ability to manipulate
up to twenty pounds occasionally and ten pounds frequently, as well as the ability to
walk or stand for about six hours a workday. (Id.) However, Ms. Garren cannot do any
balancing, climbing, or crawling, and she should do only occasional stooping, kneeling,
and crouching. (Id.) Ms. Garren should avoid extreme heat, cold, or humidity, as well
as hazardous machinery and uneven terrain. (Id.) Finally, the ALJ found that Ms.

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Garren was able to read simple words. (Id.)
According to the ALJ, Ms. Garren is a “younger individual” as defined by the
regulations, with a 12th grade education and the ability to communicate in English.
(Id. at 24.) Concerning employment, the ALJ found that Ms. Garren is unable to
perform any of her past relevant work. (Id. ) However, the ALJ further determined
that Plaintiff’s lack of transferable skills from any past relevant work was not an issue
in this case because the plaintiff’s past work was unskilled. (Id.) The ALJ found that
Ms. Garren has the RFC to perform a significant range of light work. (Id. at 25.)
Even though Plaintiff cannot perform the full range of light work, the ALJ questioned
a vocational expert who stated that there are a significant number of jobs in the
national economy that Ms. Garren is capable of performing, such as silverware
wrapper, domestic ironer, and nut sorter. (Id.) The ALJ concluded his findings by
stating that Ms. Garren was “not disabled” under the Social Security Act. (Id.)
II.

Standard of Review.
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See

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Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts,
weigh evidence, or substitute its judgment for that of the Commissioner. Id. “The
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.
1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)). Indeed, even if this Court finds that the evidence preponderates against
the Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for
“despite this deferential standard [for review of claims] it is imperative that the Court
scrutinize the record in its entirety to determine the reasonableness of the decision
reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to
apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748
F.2d 629, 635 (11th Cir. 1984).

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III.

Discussion.
Ms. Garren argues that the ALJ’s finding that she is not disabled should be

reversed and remanded for two reasons. First, Ms. Garren alleges that substantial
evidence does not support the ALJ’s RFC assessment. (Doc. 8 at 6.) Second, Ms.
Garren argues that the ALJ failed to properly develop the record. (Id. at 5.)
A.

Sufficiency of the Evidence.

First, Ms. Garren alleges that substantial evidence does not support the ALJ’s
RFC finding because the hypothetical posed to the vocational expert (“VE”) was
incomplete. (Id. at 6–7.) Specifically, Plaintiff argues that the ALJ failed to include
a hypothetical encompassing Ms. Garren’s obesity. (Id. at 6.)
To satisfy the substantial evidence standard, “the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.” Jones v. Apfel, 190 F.3d
1224, 1229 (11th Cir. 1999). However, the Eleventh Circuit has held that the
Commissioner can disregard responses to hypotheticals not supported by the record.
Graham v. Bowen, 790 F.2d 1572, 1576 (11th Cir. 1986). An ALJ may also omit from
hypothetical questions characteristics or symptoms which are not supported by
medical records or are alleviated by medication. Ingram v. Comm’r of Soc. Sec., 496
F.3d 1253, 1270 (11th Cir. 2007); see also Crawford v. Comm’r of Soc. Sec., 363 F.3d

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1155, 1161 (11th Cir. 2004) (refusing to consider hypothetical because it was not raised
at district court but noting, “[i]n any event, the ALJ was not required to include
findings in the hypothetical that the ALJ had properly rejected as unsupported”) and
Allen v. Barnhart, 174 F. App’x 497, 499 (11th Cir. 2006) (favorably citing Crawford).
Furthermore, an individual’s RFC is an example of an issue that is
administrative in nature, not medical. Soc. Sec. Rul. 96-5p, 1996 WL 374183 at *2
(S.S.A.). The Commissioner decides administrative issues, and the Commissioner’s
regulations put the ultimate responsibility of determining RFC with the ALJ. See 20
C.F.R. §§ 404.1527(e)(2), 404.1545(a)(3), 404.1546(c), 416.927(e)(2), 416.945(a)(3),
416.946(c). Finally, if the Commissioner demonstrates that there is work available in
significant numbers in the national economy that the claimant can perform, “the
claimant must prove she is unable to perform those jobs in order to be found disabled.”
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). When a plaintiff bases disability
claims off pain or symptoms stemming from an underlying condition, the plaintiff
must provide not only evidence of the condition, but must also provide evidence that
confirms the seriousness of the alleged symptoms. See 20 C.F.R. §§ 404.1529,
416.929; Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
In this case, the ALJ did consider Ms. Garren’s alleged symptoms of obesity

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(including her alleged pain, swelling, and fatigue) in his decision. (Tr. at 22–24.) The
ALJ accounted for Ms. Garren’s alleged obesity symptoms in his ruling, since the ALJ
limited Ms. Garren to “a light range” of work, and further limited when she should
stoop, kneel, or crouch. (Tr. at 21–22.) In fact, the ALJ even discussed this
hypothetical with the VE, asking the VE to consider jobs for someone who is unable
to lift twenty pounds and climb ladders, ropes, or scaffolds. (Id.) Thus, even though
the ALJ did not mention the obesity condition specifically to the VE, he did ask for
advice concerning Ms. Garren’s alleged obesity symptoms. However, even if the ALJ
did not reference Ms. Garren’s pain, weakness, and swelling in relation to obesity
during the VE interview, it is not necessary for an ALJ to list every symptom in his
questions. See Ingram, 496 F.3d at 1270 (finding that ALJ did not err by failing to
include claimant’s “fatigue, insomnia, anxiety, and depression in the hypothetical
questioning”).
Furthermore, an ALJ need not consider those conditions or symptoms that do
not appear credible within the record. An ALJ does not have to ask hypothetical
questions regarding conditions or symptoms that he has properly discredited. See
Crawford, 363 F.3d at 1161; see also May v. Comm’r of Soc. Sec., 226 F. App’x 955, 960
(11th Cir. 2007) (citing Crawford favorably and noting that ALJ need not consider

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claimant’s hypotheticals based on discredited testimony) and Gordon v. Astrue, 249
F. App’x 810, 813 (11th Cir. 2007) (citing Crawford favorably and also finding that
ALJ’s hypothetical questions based on “the medical evidence and other evidence on
the record that the ALJ found to be credible” was complete).
Here, many factors suggest that the plaintiff’s allegations of obesity symptoms
are not credible. As both the ALJ and the Commissioner’s brief noted, Ms. Garren
received little treatment for her alleged obesity symptoms. (Tr. at 23; Doc. 9 at 6–7.)
Plaintiff never sought treatment from a specialist, and instead saw only a general
practitioner. (Tr. at 23.) Furthermore, there was conflicting evidence as to what
medication Ms. Garren was taking for her supposed symptoms. While Plaintiff has
claimed that she has been prescribed narcotic pain medicine for her condition, she has
contradicted herself at times. (Id. at 264.) In December 2010, Ms. Garren provided
a medication list that included only over-the-counter pain medicine. (Id. at 149.) See
also Dyer, 395 F.3d at 1211 (discussing how infrequent and conservative treatment
undermines allegations of disabling limitations). In a 2010 consultative physical exam,
Ms. Garren, while deemed moderately overweight, was able to do a variety of physical
tasks, including standing on her toes and squatting to 90 degrees. (Tr. at 22, 262–63.)
Finally, Ms. Garren’s daily activities are not as limited as her claimed obesity

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symptoms would be expected to make them. Ms. Garren admits to regularly
performing household chores. (Tr. at 168.) Also, she has worked since the alleged
onset date of her symptoms. (Tr. at 97–98.) While this work did not rise to the level
of “substantial gainful activity,” it does show that Ms. Garren is capable of living an
active life. For these reasons, the ALJ discredited Ms. Garren’s assertions, and an ALJ
does not have to ask hypothetical questions regarding conditions or symptoms that he
has properly discredited. See Crawford, 363 F.3d at 1161; May, 226 F. App’x at 960;
Gordon, 249 F. App’x at 813.
Ms. Garren’s obesity was accounted for in the ALJ’s hypothetical to the VE,
as well as in the ALJ’s overall findings. Furthermore, the facts of the case gave the
ALJ reason to believe that Ms. Garren’s alleged symptoms were not entirely credible,
and thus allowed him to avoid discussing the symptoms in depth with the VE. Thus,
there was substantial evidence supporting the ALJ’s denial of benefits.
B.

Failure to Develop the Record.

Ms. Garren also argues that the ALJ failed to develop the record with respect
to Ms. Garren’s vision problems and intellectual functioning, and that the ALJ’s
decision should thus be reversed and remanded. Specifically, Plaintiff argues that
there should have been another consultative examination for her vision and

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intellectual functioning. (Doc. 8 at 5.)
The ALJ has a duty to develop the facts fully and fairly and to probe
conscientiously for all of the relevant information. Ware v. Schwieker, 651 F.2d 408,
414 (5th Cir. 1981). However, in all social security disability cases, the claimant bears
the ultimate burden of proving disability, and is responsible for furnishing or
identifying medical and other evidence regarding her impairments. See Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987); Doughty, 245 F.3d. at 1278; 42 U.S.C. §
423(d)(5). Furthermore, social security regulations provide that “when the evidence
[on record] . . . is inadequate for us to determine whether you are disabled, [the ALJ]
will need additional information to reach a determination or a decision.” 20 C.F.R.
§§ 404.1512(e), 416.912(e) (emphasis added). Therefore, where the ALJ’s findings
are supported by evidence sufficient for a decision, the ALJ is not obligated to seek
additional medical testimony. See Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir.
1999).
Furthermore, Plaintiff must make a “clear showing of prejudice before it is
found that the [plaintiff’s] right to due process has been violated to such a degree that
the case must be remanded to the [ALJ] for further development of the record.”
Graham v. Apfel, 129 F.2d 1420, 1422 (11th Cir. 1997). Thus, Plaintiff must show that

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the lack of a record created an evidentiary gap, resulting in unfairness or clear
prejudice. See Edwards v. Sullivan, 937 F.2d 580, 586 (11th Cir. 1991) (finding that
plaintiff was not prejudiced by a lack of representation because record did not contain
any discernible evidentiary gaps).
Here, the record contained sufficient evidence for the ALJ to make an informed
decision. While Ms. Garren argues that further evidence was needed concerning her
vision and intellectual functioning, the record contains enough evidence on those
issues for the ALJ to reach a decision on Ms. Garren’s disability status. First, the
consultative examination that was performed in this case accounted for Ms. Garren’s
poor vision. (Tr. at 271.) The examination report notes that Ms. Garren’s vision
could easily be corrected with glasses. (Id.) This was enough evidence on record
concerning Plaintiff’s vision for the ALJ to make an informed decision; thus, there
was no need for another consultative examination further addressing Ms. Garren’s
vision. Wilson, 179 F.3d at 1278.
Furthermore, there was also enough evidence on record for the ALJ to make an
informed decision concerning Plaintiff’s intellectual functioning. The record contains
Ms. Garren’s high school transcript, which shows average grades. (Tr. at 178.) Also,
the ALJ took into account Ms. Garren’s statement that she can read only simple

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words and has difficulty spelling. (Id. at 21.) This is enough evidence for the ALJ to
render an informed decision that Plaintiff does not have diminished intellectual
functioning.

See Wilson, 179 F.3d at 1278. Furthermore, it is the Plaintiff’s

responsibility to present evidence showing diminished intellectual functioning. See
Bowen, 482 U.S. at 146 n.5. Currently, the only evidence on record that might indicate
diminished intellectual functioning (other than Ms. Garren’s assertion that she can
read only simple words) is the fact that she took several special education courses in
high school. (Tr. at 178.) This alone is not enough evidence to require a separate
consultative evaluation of Ms. Garren’s intellectual functioning. See Wilson, 179 F.3d
1277–1278 (stating that an ALJ does not have an obligation to seek additional medical
testimony when the facts allow for an informed decision).
Finally, Ms. Garren makes no “clear showing of prejudice” as is required when
arguing that a record was inadequately developed. Graham, 129 F.2d at 1422. Ms.
Garren can point to no apparent evidentiary gap or other unfair prejudice; instead, she
simply argues that the decision should be overturned because the ALJ did not give
certain factors as much attention as she would have liked. (See Doc. 8 at 5.) This alone
is not enough to have an ALJ’s decision reversed for failure to develop the record. See
Graham 129 F.2d at 1422 (requiring a “clear showing of prejudice” resulting in a

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violation of plaintiffs’ due process rights).
The record contains enough evidence for the ALJ to make an informed decision
concerning Ms. Garren’s vision problems and intellectual functioning. Thus, the
record was sufficiently developed in this case.
IV.

Conclusion.
Upon review of the administrative record, and considering all of Ms. Garren’s

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law. Furthermore, the Court finds that the
record was sufficiently developed in this case. A separate order will be entered.
Done this 8th day of February 2013.

L. Scott Coogler
United States District Judge
[160704]

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