Bennett v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 8/16/2013. (AVC)

FILED
2013 Aug-16 PM 12:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ESSIE BENNETT,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of
Social Security,
Defendant.

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Civil Action No.: 2:12-CV-01758-RDP

MEMORANDUM OF DECISION
Plaintiff Essie Bennett brings this action pursuant to Titles II and XVI of Sections 205(g)
and 1631(c)(3) of the Social Security Act (“the Act”), seeking review of the decision by the
Commissioner of the Social Security Administration (“Commissioner”) denying her claim for
disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”).
Based upon the court’s review of the record and the briefs submitted by the parties, the court
finds that the decision of the Commissioner is due to be affirmed.
I.

Proceedings Below
Plaintiff previously filed for disability, DIB and SSI under Titles II and XVI of the Act

alleging disability beginning on February 1, 2007. (R. 10). Plaintiff requested and received a
hearing before Administrative Law Judge (“ALJ”) Jack F. Ostrander on April 20, 2009. (R. 79105). The Appeals Council affirmed the ALJ’s decision to deny Plaintiff’s claims on December
18, 2009. (R. 10). Plaintiff reapplied for disability, DIB, and SSI under Titles II and XVI of the
Act on January 22, 2010, also alleging that disability began on February 1, 2007. (R. 106-07).
Plaintiff’s 2010 applications were initially denied by the Social Security Administration on

March 10, 2010. (R. 109-19). Plaintiff then requested and received a hearing before ALJ Michael
L. Brownfield on May 3, 2011. (R 25-47). In his decision dated July 27, 2011, the ALJ stated
that res judicata applied to the time period between February 1, 2007 and July 6, 2009 because
no new and material evidence relating to that time period was presented in Plaintiff’s current
applications. (R. 10). As a result, the ALJ only evaluated evidence dated after July 6, 2009. (Id.).
The ALJ determined that Plaintiff had not been under a disability within the meaning of Sections
216(i) and 223(d) of the Act. (R. 17). The Appeals Council denied Plaintiff’s request for review
on March 23, 2012; consequently, the ALJ’s decision became the final decision of the
Commissioner. (R. 1). Plaintiff has exhausted her administrative remedies, and this court has
jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c). For the reasons stated below, this court
affirms the decision of the Commissioner.
At the time of her hearing, Plaintiff was forty-four years old, had completed the tenth
grade, and had not obtained her GED. (R. 56, 58). Plaintiff previously worked as a barbeque
cook and occasional server. (R. 73). Plaintiff alleges disability because of pain, swelling, and
stiffness in her arms, legs, and hands. (R. 63).
During her alleged period of disability, Plaintiff primarily received treatment for pain,
swelling, and stiffness in her legs from Dr. Joseph Blankson. (R. 236-43, 395-421, 462-77, 51526). Dr. Blankson diagnosed Plaintiff with benign essential hypertension, thrombophlebitis of the
right popliteal vein, hyperlipidemia, morbid obesity, dependent edema due to inactivity, chronic
anticoagulant use, acquired coagulation factor deficiency, adjustment disorder with disturbance
of emotions/depressed mood, and primary insomnia. (R. 238, 411, 414, 470, 521, 524). Despite
these diagnoses, Dr. Blankson repeatedly stated that Plaintiff did not have neurological or

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psychological problems. (R. 237, 396-97, 403-04, 413). Dr. Blankson attributed Plaintiff’s
difficulties to her obesity and encouraged her to diet and exercise. (R. 238, 396-97, 470, 521-22).
On November 13, 2009, Dr. Michael Crain treated Plaintiff in the Princeton Emergency
Room for pain and diagnosed Plaintiff with posterior tibial and popliteal Deep Vein Thrombosis
(DVT) in the right leg. (R. 312). Dr. Crain indicated that he treated Plaintiff with Coumadin and
subcutaneous therapeutic Arixtra and that Plaintiff was pain free at discharge on November 14,
2009. (Id.).
On July 9, 2010, Dr. Blankson treated Plaintiff for dizziness and weakness. (R. 399-401).
Dr. Blankson noted that Plaintiff had lost 10 pounds in 2.5 weeks and determined that her rapid
weight loss caused her dizziness and weakness. (Id.). He advised Plaintiff to slow down her
weight-loss. (Id.).
Plaintiff fractured her right ankle on August 7, 2010 when she fell down stairs at her
home. (R. 542). Dr. Jeremy Rogers treated Plaintiff at Princeton Emergency Room and placed
her in a Sugar-tong splint. (R. 370-80, 542). On August 11, 2010, Dr. Edward Bromberg reported
that Plaintiff was using crutches and doing some weight-bearing on her right ankle. (Id.). On
October 29, 2010, Dr. Bromberg stated that Plaintiff was bearing full weight on her ankle
without an aid; had mild, chronic swelling; was able to get on her toes; and had difficulty toe
walking. (R. 546).
On October 6, 2010, Dr. Blankson reported that Plaintiff was taking Furosemide,
Coumadin, Flexeril, Ferrous sulfate, Trazodone, Zocor, Norvasc, Hydrochlorothiazide-lisinopril,
and Citalopram. (R. 471). Dr. Blankson indicated that he counseled Plaintiff about dieting and
using her medications and prescribed Furosemide, Citalopram, Coumadin, Ferrous sulfate,
Flexeril, Hydrochlorothiazide-lisinopril, Norvasc, Trazodone, and Zocor. (R. 470).

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On January 4, 2011, Dr. Blankson noted that Plaintiff had chronic anticoagulant use,
benign essential hypertension, dependent edema due to inactivity, esophageal reflux,
hyperlipidemia, morbid obesity, primary insomnia, and adjustment disorder with disturbance of
emotions, but a normal pre-employment screening examination. (R. 521). Additionally, on
March 28, 2011, Dr. Arthur James interpreted a venous Doppler of Plaintiff’s right leg and
determined that no evidence of DVT existed. (R. 502).
II.

ALJ Decision
Disability under the Act is determined using a five-step test. 20 C.F.R. § 404.1520. First,

the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing significant
physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is work that is
done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant engages in
substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. § 404.1520(b).
Second, the ALJ must determine whether the claimant has a medically determinable impairment
or a combination of medical impairments that significantly limits the claimant’s ability to
perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such impairment, the
claimant may not claim disability. Id. Third, the ALJ must determine whether the claimant’s
impairment meets or medically equals the criteria of an impairment listed in 20 C.F.R. § 404,
Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria
are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If a claimant does not fulfill the requirements necessary to be declared disabled under the
third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ
must first determine the claimant’s residual functional capacity (“RFC”), which refers to the

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claimant’s ability to work despite her impairments. 20 C.F.R. § 404.1520(e). In the fourth step,
the ALJ determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant work,
then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to perform past
relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. §
404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether the claimant
is able to perform any other work commensurate with her RFC, age, education, and work
experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from the claimant to the
ALJ to prove the existence, in significant numbers, of jobs in the national economy that the
claimant can do given her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g),
404.1560(c).
In his July 27, 2011 decision, the ALJ determined that res judicata applied to the time
period between February 1, 2007 and July 6, 2009 because no new and material evidence
relating to that time period was presented in Plaintiff’s current applications for disability. (R. 10).
Thus, the ALJ only evaluated whether Plaintiff had been under a disability since July 6, 2009.
(Id.).
The ALJ concluded that Plaintiff met the insured status requirements of the Act through
June 30, 2012 and had not engaged in substantial gainful activity since February 1, 2007. (R. 12).
After reviewing the record and the previous ALJ’s decision, the ALJ determined that Plaintiff
suffered from the severe impairments of obesity, hypertension, and DVT of her right leg. (R. 13).
The ALJ explained that these impairments were severe because they caused more than minimal
limitations to Plaintiff’s ability to perform the full range of exertional activity and have lasted for
at least twelve months. (Id.). The ALJ also noted that Plaintiff had some history of gout and a

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right ankle fracture, but concluded that they were not severe impairments. (Id.). The ALJ
explained that Plaintiff’s gout was not severe because Plaintiff never received treatment for it,
and the record did not contain any indications that Plaintiff’s gout caused a significant, persistent
limitation. (Id.). The ALJ explained that Plaintiff’s ankle was not a severe impairment because
on October 29, 2010, Dr. Bromberg stated that Plaintiff could bear her full weight on the ankle
without an aid. (Id.).
The ALJ then determined that Plaintiff’s impairments did not meet or medically equal
one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Id.). The ALJ
explained that no treating or examining physician opined that Plaintiff’s impairments, singly or
combined, medically equaled a listed impairment. (Id.).
The ALJ concluded that Plaintiff has the RFC to perform sedentary work as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b) except Plaintiff needs a sit/stand option. Id. The ALJ
stated that Plaintiff can occasionally balance, stoop, kneel, crouch, crawl and climb stairs but
cannot work around unprotected heights, dangerous equipment or climb ladders, ropes, or
scaffolds. (R. 13-14).
In determining Plaintiff’s RFC, the ALJ evaluated Plaintiff’s subjective allegations of
pain and other symptoms using the Eleventh Circuit pain standard. (R. 14). The ALJ noted that
Plaintiff reported at the hearing that “she had swelling and stiffness in her hands, arms, and
legs;” experienced pain in her arms and legs; her treatment medication caused drowsiness; and
that changes in her medication caused light headedness. (Id.). The ALJ concluded that the
evidence did not satisfy Social Security Regulations 20 C.F.R. §§ 404.1529(c), 416.929(c), SSR
96-7p, and the Eleventh Circuit pain standard because the evidence did not establish that Plaintiff

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had an underlying medical condition that was of such severity that it would reasonably give rise
to the alleged symptoms. (R. 15).
The ALJ further explained that Plaintiff’s ankle condition had healed. Plaintiff’s treating
physician, Dr. Blankson, repeatedly noted that Plaintiff’s physical examinations were normal and
her physical difficulties were a result of her obesity and inactivity. (Id.). The ALJ also noted that
Plaintiff’s prescribed treatment medication effectively controlled her DVT and that a venous
Doppler study performed on March 28, 2011 revealed no evidence of DVT in Plaintiff’s right
leg. (Id.). The ALJ stated that Plaintiff’s obesity clearly affected her other impairments and her
ability to perform some of the physical requirements of work but that no evidence existed that
her obesity precluded her from performing work at the sedentary level of exertion, which would
minimize the effect of her obesity and other impairments on her lower extremities and body
systems. (Id.). The ALJ also noted that Dr. Blankson repeatedly advised Plaintiff to exercise and
monitor her diet, which she “appear[ed] not to follow.” (Id.). The ALJ also determined that
Plaintiff’s medications effectively control the severity of her symptoms. (Id.).
Based on these observations and the testimony of a Vocational Expert, the ALJ
determined that Plaintiff is unable to perform any past relevant work, was thirty-nine years old
on the alleged disability onset date, has a limited education, and is able to communicate in
English. (R. 16). The ALJ also determined that given Plaintiff’s age, education, work experience,
and RFC, jobs exist in significant numbers in the national economy that Plaintiff can perform.
(Id.). Therefore, the ALJ concluded that Plaintiff has not been under a disability as defined in the
Social Security Act since February 1, 2007. (R. 17).

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III.

Plaintiff’s Argument for Reversal
Plaintiff argues the ALJ’s decision should be reversed on three grounds. First, Plaintiff

contends that the ALJ’s decision should be reversed because the ALJ did not follow the slight
abnormality standard according to SSR 96-3p when he determined that her adjustment disorder
with depressed mood and insomnia were not severe impairments. (Pl.’s Br. 5). Second, Plaintiff
contends that the ALJ did not properly develop the record because he did not consider her
testimony regarding the side effects of her medication. (Pl.’s Br. 6). Third, Plaintiff posits that
the ALJ’s decision should be reversed because the ALJ’s RFC assessment is not supported by a
physician’s RFC assessment. Id.
IV.

Standard of Review
The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838
(11th Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847
F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42
U.S.C. § 405(g) mandates that the Commissioner’s findings are conclusive if supported by
“substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district
court may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of
the Commissioner; instead, it must review the final decision as a whole and determine if the
decision is reasonable and supported by substantial evidence. See id. (citing Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of
evidence; “[i]t is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other

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citations omitted). If supported by substantial evidence, the Commissioner’s factual findings
must be affirmed even if the evidence preponderates against the Commissioner’s findings. See
Martin, 894 F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s
findings is limited in scope, the court also notes that review “does not yield automatic
affirmance.” Lamb, 847 F.2d at 701.
V.

Discussion
A.

The ALJ Did Not Commit Reversible Error When He Determined That
Plaintiff’s Adjustment Disorder with Depressed Mood and Insomnia Were
Not Severe Impairments.

Plaintiff argues that the ALJ committed reversible error when he determined that her
adjustment disorder with depressed mood and insomnia were not severe impairments. However,
the Eleventh Circuit has determined that “[n]othing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe” and, even if the ALJ erred by not
recognizing every severe impairment, the error was harmless since he found at least one such
impairment. Heatly v. Comm’r of Soc. Sec., 382 Fed. Appx. 823, 824-25 (11th Cir. 2010). Here,
the ALJ determined that Plaintiff had the severe impairments of obesity, hypertension, and deep
venous thrombosis of the right leg. (R. 13). Because the ALJ identified some severe
impairments, he did not commit reversible error by determining that Plaintiff’s adjustment
disorder and insomnia were not severe impairments.
Moreover, Plaintiff has not met her burden of proving that her adjustment disorder with
depressed mood and insomnia are severe impairments because she has not produced any
objective medical evidence demonstrating that either her adjustment disorder or her insomnia
affects her ability to work. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)
(finding that it is the plaintiff’s burden to prove disability). Although Plaintiff produced doctors’

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reports indicating that she was diagnosed with adjustment disorder and insomnia, none of the
reports indicate the severity of her problems or mention any limitations on her abilities. (R. 238,
400, 404, 411, 414, 470, 521). Because Plaintiff did not produce any evidence indicating that
either her adjustment disorder or her insomnia are severe or affects her ability to work, the ALJ
properly determined that Plaintiff’s adjustment disorder and insomnia are not severe
impairments.
B.

The ALJ Properly Developed the Record and Considered the Side Effects of
Plaintiff’s Medications.

Plaintiff also argues that the ALJ did not properly consider the side effects of her
medications. However, the ALJ did properly consider the side effects of Plaintiff’s medications
because he evaluated Plaintiff’s testimony and the objective medical evidence in the record.
When the ALJ made his determination, he noted that Plaintiff testified that her
medications made her drowsy. (R. 14). However, he also found that the majority of Plaintiff’s
medical records were normal and that Dr. Blankson determined that Plaintiff’s difficulties “were
a result of her obesity and inactivity.” (R. 15).
Additionally, no objective medical evidence exists to support Plaintiff’s claim that she
suffered the alleged side effects or that the alleged side effects were caused by her medications.
Although the ALJ has an obligation to develop the record, Plaintiff has the burden of proving
disability. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Walker v. Comm’r of Soc.
Sec., 404 Fed. Appx. 362, 366 (11th Cir. 2010). Plaintiff has the burden of submitting evidence
to support her claim that the side effects of her medication make her unable to work. Ellison, 355
F.3d at 1276; Walker, 404 Fed. Appx. at 366. For example, in Cherry v. Heckler, the plaintiff
“was represented at the hearing and did not allege that side effects of drugs contributed to her
disability. Moreover, the only indication in the record of side effects is her statement before the
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ALJ that her medication made her drowsy.” 760 F.2d 1186, 1191 n.7 (11th Cir. 1985). There, the
court determined that “the ALJ’s failure to inquire further into possible side effects did not
deprive [the plaintiff] of a meaningful opportunity to be heard.” Id. Here, Plaintiff only
mentioned that she suffered side effects from her medications at the hearing. Plaintiff never
reported side effects to her doctors, and her doctors never indicated that she suffered from the
side effects of her medications. July 9, 2010 is the only time Plaintiff reported feeling dizzy and
weak to her doctors. (R. 399-401). Based on his observations that day, Dr. Blankson concluded
that Plaintiff’s rapid weight loss caused her dizziness and weakness, not her medications. (Id.)
No other medical records report Plaintiff suffering from dizziness, weakness, fatigue, or
drowsiness.
C.

Substantial Evidence Supports the ALJ’s RFC Assessment.

Finally, Plaintiff argues that the ALJ’s RFC assessment is not supported by substantial
evidence because no medical source conducted an RFC assessment. However, it is the ALJ’s
responsibility to determine Plaintiff’s RFC; thus, no physician is required to make an RFC
assessment. 20 C.F.R. § 404.1546(c). Although a claimant may provide a statement containing a
physician’s opinion of their remaining capabilities, the ALJ will evaluate the statement in light of
the other evidence presented and the ultimate determination of disability is reserved for the ALJ.
20 C.F.R. §§ 404.1513, 404.1527, 404.1545, Green v. SSA, 223 Fed. Appx. 915, 923 (11th Cir.
2007). The “determination of residual functional capacity is within the authority of the ALJ and
the assessment should be based upon all of the relevant evidence of a claimant’s remaining
ability to do work despite her impairments.” Beech v. Apfel, 100 F. Supp. 2d 1323, 1330 (S.D.
Ala. 2000) (citing 20 C.F.R. § 404.1546; Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997)).

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Here, the ALJ based his evaluation of Plaintiff’s RFC on substantial evidence. The ALJ
evaluated Plaintiff’s testimony and medical records before determining that Plaintiff has the RFC
to perform sedentary work with a sit/stand option and that Plaintiff can occasionally balance,
stoop, kneel, crouch, crawl, and climb stairs, but cannot work around unprotected heights,
dangerous or moving equipment, and cannot climb ladders, ropes, or scaffolds. (R. 13-16). In
particular, the ALJ noted that Dr. Blankson, the treating physician, repeatedly stated that
Plaintiff’s physical difficulties were a result of: her obesity and inactivity and encouraged her to
exercise; Dr. Bromberg’s conclusion that her ankle had healed; Dr. James’s March 28, 2011
report indicating that no DVT was present; and that no treating or examining physician indicated
any functional limitations for her. Id. Because it is the ALJ’s duty to determine Plaintiff’s RFC
and substantial evidence supports the ALJ’s RFC determination, the ALJ did not commit
reversible error by determining Plaintiff’s RFC without ordering a physician to perform an RFC
assessment.
VI.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff is not disabled is

supported by substantial evidence and that the ALJ properly applied the legal standards in
reaching this determination. The Commissioner’s final decision is therefore due to be affirmed
and a separate order in accordance with this memorandum of decision will be entered.
DONE and ORDERED on August 16, 2013.

_______________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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