Yearby v. Social Security Administration, Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 04/01/13. (CVA)

FILED
2013 Apr-01 PM 03:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AUBREIA J. YEARBY,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
2:12-cv-1806-AKK

MEMORANDUM OPINION
Plaintiff Aubreia J. Yearby brings this action pursuant to Section 205(g) of
the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the final
adverse decision of the Commissioner of the Social Security Administration
(“SSA”). This court finds that the Administrative Law Judge’s (“ALJ”) decision which has become the decision of the Commissioner - is supported by substantial
evidence and, therefore, AFFIRMS the decision denying benefits.
I. Procedural History
Yearby filed her applications for Title II disability insurance benefits and
Title XVI Supplemental Security Income on July 7, 2009, alleging a disability

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onset date of April 21, 2009 due to memory loss, obesity, depression, and
hypertension.1 (R. 41, 76-77, 132, 136, 165). After the SSA denied her
applications on October 20, 2009, Yearby requested a hearing. (R. 79-83, 86-87).
At the time of the hearing on January 3, 2011, Yearby was 26 years old, had a high
school diploma, and past relevant sedentary work as a taxi cab starter, medium
work as a hand packer, and light work as a security guard and cashier/checker. (R.
66-68). Yearby has not engaged in substantial gainful activity since April 20,
2009. (R. 165).
The ALJ denied Yearby’s claim on January 21, 2011, which became the
final decision of the Commissioner when the Appeals Council refused to grant
review on July 18, 2011. (R. 1-5, 15). Yearby then filed this action pursuant to
section 1631 of the Act, 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains 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 ALJ applied the
correct legal standards, 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)
1

Yearby amended her onset date from March 1, 2008 to April 20, 2009. (R. 41).
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and 1383(c) mandate that the Commissioner’s “factual 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, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is 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, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
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physical or mental impairments 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
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20

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C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
In performing the Five Step sequential analysis, the ALJ initially
determined that Yearby had not engaged in substantial gainful activity since her
alleged onset date and therefore met Step One. (R. 20). Next, the ALJ
acknowledged that Yearby’s severe impairments of morbid obesity and major
depressive disorder with features of psychosis met Step Two. (R. 21). The ALJ
then proceeded to the next step and found that Yearby did not satisfy Step Three
since she “does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments.” Id. Although the ALJ
answered Step Three in the negative, consistent with the law, see McDaniel, 800
F.2d at 1030, the ALJ proceeded to Step Four, where he determined that Yearby
has the residual functional capacity [RFC] to perform work at all
exertional levels but with the following non-exertional limitations:
the claimant is unable to climb ladders, ropes, or scaffolds and should
only occasionally balance, stoop, kneel, crouch, and crawl. She may
also occasionally climb ramps/stairs. The claimant retains the ability
to understand, remember, and carry out short, simply instructions and
to sustain attention sufficient to complete simple, one-step or two step
tasks for periods of up to two hours without special supervision or
extra rest periods. Additionally, the claimant would perform best in
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jobs that require the performance of simple, routine, and repetitive
tasks; in a work environment free of fast-paced production
requirements; that involves only simple work-related decisions; and
requires few, if any, work-place changes. Finally, the claimant is able
to tolerate superficial contact with others.
(R. 23). In light of Yearby’s RFC, the ALJ determined that Yearby “is capable of
performing past relevant work as a cashier” because the work “does not require the
performance of work-related activities precluded by the claimant’s [RFC].” (R.
26). Therefore, because the ALJ answered Step Four in the negative, the ALJ
determined that Yearby is not disabled. (R. 28); see also McDaniel, 800 F.2d at
1030.
V. Analysis
The court turns now to Yearby’s contentions that the ALJ erred because (1)
the mental RFC finding is not based on substantial evidence, and (2) he failed to
consider Yearby’s impairments in combination. Doc. 7 at 7-11. For the reasons
stated below, the court finds that the ALJ’s opinion is supported by substantial
evidence.
A.

Yearby’s mental RFC
Yearby’s first contention of error is that the ALJ failed to properly consider

treating physician Dr. James Parker’s opinion and to consult a medical expert to
clarify Dr. Parker’s opinion. Doc. 7 at 8-9. Dr. Parker issued the opinion in
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contention in a questionnaire he completed regarding Yearby’s mental RFC. Dr.
Parker opined that Yearby had marked restrictions in her ability to participate in
activities of daily living, maintain concentration, persistence, or pace, understand,
carry out, and remember instructions and perform simple tasks in a work setting,
and extreme restrictions in her ability to maintain social functioning, respond
appropriately to supervision, co-workers in a work setting, and customary work
pressures, and perform repetitive tasks in a work setting. (R. 328-29). Also, Dr.
Parker added that Yearby’s impairment could be expected to last for twelve
months or longer. (R. 329). After reviewing the record and Dr. Parker’s treatment
notes in particular, the court finds Yearby’s contentions of error unpersuasive.
Generally, because a treating physician provides a “longitudinal picture” of
the claimant’s impairments, his assessment is entitled to more weight when it is
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the]
record.” See 20 C.F.R. § 404.1527(c)(2). Furthermore, “the longer a treating
source has treated” a claimant, “the more weight we will give to that source’s
medical opinion.” Id. at (c)(2)(I). However, an ALJ can reject a treating
physician’s assessment if the physician fails to present “relevant evidence to
support an opinion.” See id. at (c)(3).
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The substantial evidence supports the ALJ’s decision to reject Dr. Parker’s
opinion. Dr. Parker evaluated Yearby four times in 2010, and nothing in his
treatment entries substantiate his opinion that Yearby suffers from marked and
extreme impairments. During the first visit in June, Dr. Parker diagnosed Yearby
with major depression, post traumatic stress disorder, and obesity and prescribed
Cymbalta. (R. 318).2 Yearby visited Dr. Parker two months later and Dr. Parker
remarked that Yearby had improved sleep pattern, mood, and affect, decreased
energy level, and no suicidal or homicidal ideation. (R. 315). Dr. Parker
evaluated Yearby again a month later and noted no change in Yearby’s sleep
pattern and an improved mood. (R. 313). Significantly, Dr. Parked noted that
Yearby made progress towards her treatment goals. (R. 314). The final visit
occurred in October 2010, during which Dr. Parker noted that Yearby had
excellent compliance with her medications, no change in her sleep pattern, slightly
improved mood, affect, and energy level, and good progress towards her treatment
goals. (R. 311-312). Yet, despite this sparse record and without conducting a
psychological evaluation, Dr. Parker opined the next month that Yearby had
marked or extreme limitations of functioning in daily living, social, and workplace settings.
2

Dr. Parker’s treatment notes are largely illegible.
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Based on the court’s review of Dr. Parker’s treatment notes, the ALJ’s
decision to assign Dr. Parker’s opinion “little weight” is supported by substantial
evidence. As the ALJ found,
[Dr. Parker’s] opinion is quite conclusory and provides no
explanation of the evidence relied upon. Additionally, some of Dr.
Parker’s statements are inconsistent with the claimant’s own
allegations. For example, although the claimant described a wide
range of daily activities, including cooking, cleaning, shopping, and
driving, Dr. Parker stated she had marked limitations in this area. The
claimant is also able to maintain part-time employment, which is
seemingly inconsistent with an extreme limitation in the ability to
respond appropriately to supervision. As a result, Dr. Parker’s
opinion is given little weight.
(R. 25-26). Moreover, Dr. Parker’s treatment notes fail to establish a “longitudinal
picture” of Yearby’s impairment. Again, Dr. Parker evaluated Yearby only four
times over a four month period. See 20 C.F.R. § 404.1527(c)(2). To make matters
worse, Dr. Parker’s opinion that Yearby suffers from marked restrictions in
activities of daily living is inconsistent with Yearby’s own function report that she
cooks, cleans house, shops, does laundry, and goes outside frequently. (R. 184187, 313, 315). Furthermore, Dr. Parker’s finding that Yearby has marked
restrictions in, among other things, her ability to maintain concentration, respond
appropriately to work-place supervision and co-workers, and perform repetitive
tasks in a work setting was completely undermined by evidence presented at the

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hearing that Yearby had held a part time job successfully for four months during
the same period of Dr. Parker’s assessment. (R. 41, 44-45). Finally, Dr. Parker’s
overall assessment is belied by his treatment notes that Yearby made consistent
progress towards her treatment goals, was compliant with her medication, and
consistently had improved mood and effect. For all these reasons, the court
disagrees with Yearby’s contention that the ALJ erred when he rejected Dr.
Parker’s opinion. See 20 C.F.R. § 404.1527(c)(2) and (4).
The court also disagrees with Yearby that the ALJ erred by failing to obtain
a medical expert opinion to clarify the “superficial contact with ‘others’”
requirement because it is inconsistent with work as a cashier and “appear[s] to be a
very poor fit for an individual with this limitation.” Doc. 7 at 9. Although the
ALJ “has a basic duty to develop a full and fair record,” Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003), the ALJ is not obligated to automatically obtain
testimony from a medical expert. This is especially the case, where, as here, the
vocational expert confirmed that the superficial contact requirement would not
impede Yearby from performing her past relevant cashier work:
ALJ: Let’s assume we have a hypothetical person that has no [sic]
exertional limitations. This person is unable to climb ladders, ropes,
or scaffolds. She is able to occasionally climb ramps and stairs. This
person is able to understand, remember, and carry out short, simple
instructions. She is able to sustain attention sufficiently to complete
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simple one-step or two-step tasks for periods of up to two hours
without special supervision or rest periods. Let’s say this person
would perform jobs that require the performance of simple, routine,
repetitive tasks in a work environment free of fast-paced production
requirements, that involves only simple work-related decisions, and
requires few – if any – workplace changes. This person is able to
tolerate superficial contact with others. So based upon these
limitations, would this hypothetical person be able to perform any of
the claimant’s past work?
Vocational expert: Your honor, I would say she would be able to
work as a cashier. . . . So I would say yes, as a cashier. I would say
yes as a security guard. And yes a[s] a taxi cab starter.
(R. 69). Therefore, based on the record before the court, the ALJ’s opinion is
supported by substantial evidence. See Wilson v. Barnhart, 284 F.3d 1219, 1227
(11th Cir. 2002).
B.

The ALJ properly considered Yearby’s impairments and presented the
vocational expert with a comprehensive hypothetical
Yearby’s final contention of error is that the ALJ’s RFC assessment is not

based on substantial evidence because the 1) ALJ failed to “adequately consider
[her] impairments in combination,” 2) RFC is internally inconsistent with the
postural limitations, and 3) ALJ failed to provide a comprehensive hypothetical to
the vocational expert. Doc. 7 at 10, 12. These arguments are unpersuasive.
1.

Yearby’s impairments in combination

Yearby contends that the ALJ failed to consider her impairments in

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combination, specifically her morbid obesity. Doc. 7 at 11. Unfortunately for
Yearby, the ALJ’s statement that he considered the claimant’s impairments in
combination “evidences consideration of the combined effect of [the]
impairments.” Jones v. Dep’t of Health and Human Serv., 941 F.2d 1529, 1533
(11th Cir. 1991); R. 21. Moreover, contrary to Yearby’s contention, the ALJ
expressly included her morbid obesity diagnosis. Specifically, at Step Two of the
sequential process, the ALJ found that Yearby’s morbid obesity and major
depressive disorder are severe impairments. (R. 21). At Step Three, the ALJ
found that Yearby “does not have an impairment or combination of impairments”
that meets a listing, “even when the additional and cumulative effects of her
obesity are considered.” (R. 21, 23). At Step Four, the ALJ stated that “[i]n
making [Yearby’s RFC] finding, [he] considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence.” (R. 23) (emphasis added). Finally, the
ALJ found that Yearby’s “morbid obesity combined with the effects of her nonsevere degenerative changes of the knee prevent her from climbing ladders, ropes,
or scaffolds.” (R. 26). Therefore, Yearby’s contention is unfounded.
2.

Yearby’s RFC is consistent with the postural limitations

Yearby contends next that the ALJ’s RFC findings are internally
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inconsistent because the ALJ determined that Yearby can perform work at all
exertional levels although the postural limitations effectively eliminate medium
exertion work, as acknowledged by the vocational expert. (R. 23, 69-70). This
contention is also unavailing. The ALJ specifically addressed this issue with the
vocational expert:
ALJ: Are there other jobs that require medium exertion that this
hypothetical could perform?
****
Vocational expert: I would say – with only occasional stooping and
kneeling – I would say not too many medium jobs. Certainly light
jobs, but I would say the stooping would take out most of the medium
jobs.
(R. 68-71). In light of the vocational expert’s position, the ALJ ultimately
determined at Step Four that Yearby’s “ability to perform work at all exertional
levels has been compromised by nonexertional limitations.” (R. 27). Moreover,
relying on the vocational expert’s testimony that a person of Yearby’s age,
education, work experience, RFC, and nonexertional limitations could perform
cashier, sorter, and assembler jobs, the ALJ determined that Yearby was not
disabled because she could perform her past relevant work as a cashier. (R. 2728). Indeed, the ALJ’s finding that Yearby can perform her past relevant work is
also consistent with Yearby’s activities of daily living. Therefore, the ALJ’s
finding is supported by substantial evidence. To the extent that the ALJ erred in
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finding that Yearby could perform work at all exertional levels in light of her
nonexertional limitations, the error is harmless because the ALJ qualified his
finding by limiting Yearby to jobs that do not exceed her nonexertional
limitations.
3.

The ALJ presented a comprehensive hypothetical

Finally, Yearby contends that the vocational expert’s testimony “did not
constitute substantial evidence absent a comprehensive hypothetical.” Doc. 7 at
12; (R. 68-71). The court disagrees. The ALJ continued the vocational expert
examination, noted supra in sections A and B.2., with the following:
ALJ: Okay. Hypothetical two. All of the limitations we mentioned
for hypo one, except this time, we limited the person to doing light
work, requiring lifting, carrying, pushing, or pulling, up to 20 pounds
occasionally and 10 pounds frequently. [The] [p]erson is able to
stand and/or walk for at least total of six hours and to sit for at least a
total of six hours. All other limitations still apply. Would this person
be able to perform the claimant’s past relevant – past work?
Vocational expert: As a cashier and a security guard, yes. . . . There
would be product inspectors. . . . There are also food preparation
workers.
ALJ: Thank you. And for hypothetical three, let’s just assume that
this person scan only do sedentary work. Are there other jobs in the
economy that this hypothetical person could perform, even with these
– all these other limitations?
Vocational expert: Yes. There are products inspectors and sorters. . .
. Product assemblers. . . . There are cashiers.
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(R. 70). The ALJ’s hypothetical accounted for Yearby’s severe mental
impairments and limitations by restricting Yearby to work that requires attention
sufficient to complete simple one or two-step tasks, simple, routine, and repetitive
tasks, simple work-related decisions, few work-place changes, superficial contact
with others, and work without fast-paced requirements. (R. 23). The ALJ’s
hypothetical also considered Yearby’s severe morbid obesity and non-severe
degenerative knee changes (able to frequently lift, carry, push, or pull ten pounds,
occasionally balance, stoop, kneel, crouch, crawl, and lift, carry, push, or pull
twenty pounds, unable to climb ladders, ropes, and scaffolds, and stand, walk, or
sit for six hours). Id. Significantly, under all three hypothetical scenarios the ALJ
posited, the vocational expert determined that Yearby was capable of performing
her past work as a cashier. Therefore, the ALJ’s hypothetical took into account
Yearby’s impairments and is supported by substantial evidence.3 See Wilson, 284
F.3d at 1227.
Ultimately, Yearby must meet her burden of proving that she is disabled.

3

To the extent that the ALJ erred by failing to account for Yearby’s hypertension
diagnosis, the error was harmless because a review of the medical records reveals that Yearby’s
hypertension is well-maintained since essentially all of her blood pressure readings were within
the normal range (132/66, 110/80, 110/80, 155/85, 119/65, 163/86, 163/86, 134/93). (R. 221,
234, 263, 268, 274, 279, 293, 326). Furthermore, regarding Yearby’s sleep apnea diagnosis, the
record contains insufficient evidence regarding this impairment. (R. 219). In fact, Yearby failed
to report sleep apnea in her history of current illnesses when she presented to consultative
examiner Dr. Victor Sung. (R. 233).
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See 20 C.F.R. § 416.912(c). Notwithstanding Yearby’s unsubstantiated assertions
to the contrary, the record evidence simply does not support her disability claim.
Therefore, the court finds that the ALJ’s decision is supported by substantial
evidence.4
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Yearby is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
Done the 1st day of April, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

4

Yearby’s contention that the ALJ’s “observation” from the video hearing that Yearby did
not appear depressed or have mobility limitations are “misplaced” is unavailing. Doc. 7 at 11.
The video hearing did not necessarily restrict the ALJ from making credibility determinations
based on Yearby’s demeanor. Furthermore, regarding Yearby’s purported mobility limitations,
there is no evidence in the record that Yearby’s mobility is restricted. In fact, the evidence
indicates otherwise since Yearby indicated on the function report that she prepares meals, does
laundry, performs house cleaning chores, can perform the same tasks now as she could prior to
her impairments, goes outside “very often,” and has held a part-time job. (R. 41, 45, 184-87,
234).
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