Davis v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Senior Judge Inge P Johnson on 05/07/13. (CVA)

FILED
2013 May-07 PM 03:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KERRI KATHLEEN DAVIS,
PLAINTIFF,
VS.

CASE NO.: 12-J-3314-S

CAROLYN V. COLVIN,1
Acting Commissioner of Social Security,
DEFENDANT.
MEMORANDUM OPINION
This matter is before the court on the record and briefs of the parties. The court
has jurisdiction pursuant to 42 U.S.C. § 405. The plaintiff is seeking reversal or remand
of a final decision of the Commissioner. All administrative remedies have been
exhausted.
At the time of the hearing before the Administrative Law Judge ("ALJ"), the
plaintiff was 32 years old, having been born November 7, 1977, and had a limited
education (R. 39, 182). Plaintiff alleged an inability to work due to attention deficit
hyperactivity disorder (ADHD) and depression (R. 149). The ALJ found that the
plaintiff does have impairments which are severe, specifically borderline intellectual
functioning with a history of learning disorder and conduct disorder, major depressive

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On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security and should, therefore, be substituted for Commissioner Michael J. Astrue as Defendant in
this action. See Fed. R. Civ. P. 25(d).

disorder with anxiety features, post-traumatic stress disorder, chronic, and possible
ADHD, none of which met or medically equaled any of the impairments listed in
Appendix 1 of Subpart P, 20 CFR Part 404 (R. 20-21). The ALJ therefore concluded
that the plaintiff had the residual functional capacity to perform a full range of work at
all exertional levels with the following limitations:
[S]he can learn and remember simple routine work with practice. She can
understand and remember simple instructions but not detailed ones. She
can carry out simple instructions and sustain attention to simple tasks for
extended periods. She would benefit from a flexible schedule and would
be expected to miss 1 to 2 days per month due to anxiety and depression.
She would benefit from casual supervision and would function best with
her own work area apart from others to help minimize anxiety. She could
tolerate ordinary work pressures but should avoid excessive workloads,
quick decision-making, rapid changes, and multiple demands. She would
benefit from regular rest breaks. Contact with the public should be casual;
feedback should be supportive; and criticism should be tactful and nonconfrontational. [Plaintiff] can adapt to infrequent, well-explained changes
with rehearsal. She would need help with long term planning and goal
setting but not short term planning and goal setting.

(R. 23). Based on these limitations and the VE’s testimony, the ALJ found that the
plaintiff could return to her past relevant work as a stocker (R. 25). The ALJ concluded
that the plaintiff was not disabled within the meaning of the Social Security Act (Id.).
The 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

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Commissioner, and 2) whether the correct legal standards were applied. See Richardson
v. Perales, 402 U.S. 389, 390, 401, 91 S. Ct. 1420, 28 L. Ed. 843 (1971); Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The Court may not decide facts, reweigh
evidence, or substitute its judgment for that of the Commissioner. See Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). However, this limited scope does not
render affirmance automatic, for
‘despite [this] deferential standard for review of claims . . . [the] Court
must scrutinize [the] record in its entirety to determine reasonableness of
the decision reached.’ Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).
Lamb, 847 F.2d at 701. Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 634 (11th Cir. 1984).
The plaintiff argues that the ALJ failed to explain the inconsistency between the
VE’s testimony and the Dictionary of Occupational Titles (“DOT”), perform an
assessment of the effect of Ms. Davis’s obesity on her mental ability to work, and
properly consider Ms. Davis’s credibility. Plaintiff's memorandum at 5-6.
Plaintiff’s first claim is that the ALJ failed to comply with Social Security Ruling
(“SSR”) 00-4p2 which requires an ALJ to inquire into discrepancies in a VE’s testimony

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“When vocational evidence provided by a VE or VS is not consistent with information in
the DOT, the adjudicator must resolve this conflict before relying on the VE or VS evidence to
support a determination or decision that the individual is or is not disabled. The adjudicator will
explain in the determination or decision how he or she resolved the conflict. The adjudicator must
explain the resolution of the conflict irrespective of how the conflict was identified.” Social
Security Ruling ("SSR") 00-4p.
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and the DOT. The ALJ, however, did not need the VE's testimony at step four to
conclude that plaintiff could perform her past relevant work. Lamb v. Bowen, 847 F.2d
698, 704 (11th Cir. 1988) (citing Schnorr v. Bowen, 816 F.2d 578 (11th Cir. 1987);
Chester v. Bowen, 792 F.2d 129 (11th Cir. 1986)). Thus, plaintiff’s claims do not
undermine the ALJ's finding that plaintiff can perform her past relevant work (a finding
which in this case is bolstered by the VE’s testimony, even though the testimony was
not necessary at step four).
Although the claims could impact the ALJ's findings at step five, any error at step
five would be harmless because the ALJ's ultimate conclusion of “not disabled” may be
upheld based on his finding at step four. See, e.g., Ehrisman v. Astrue, 377 Fed. Appx.
917, 920 (11th Cir. 2010) (because the ALJ found the claimant not disabled at step four
of the sequential evaluation, and the ALJ did not err at step four, there is no need to
address her claim of error at step five). Plaintiff, therefore, is not entitled to relief.
Plaintiff also contends the ALJ did not properly evaluate her obesity in
accordance with SSR 02-1p, 2002 WL 34686281, because the ALJ did not consider the
effect of obesity on her mental ability. Pl.’s Br. at 8-12. Plaintiff notes SSR 02-1p
indicates obesity “may” cause mental limitations, such as a lack of mental clarity from
related sleep apnea or a decrease in social functioning. Pl.’s Br. at 10-11. SSR 02-1p
recognizes that obesity can cause further degradation of a claimant’s physical
impairment and instructs the ALJ to assess the effect of a claimant’s obesity on the
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claimant’s ability to perform exertional, postural, and social functions. See SSR 02-1p,
2002 WL 34686281, at *3.
The ALJ considered plaintiff’s obesity by specifically discussing the medical
evidence related to plaintiff’s obesity when formulating the RFC (See R. 20-25). The
ALJ stated at step four that he considered "the entire record" (R. 23). The ALJ
explicitly stated that he considered the plaintiff's medically determinable impairments
in determining whether those impairments could be expected to cause her alleged
symptoms (R. 23-24). The Eleventh Circuit has held that a statement by the ALJ that
he considered the impairments in combination is sufficient to show that the ALJ
considered the combined effect of plaintiff's impairments. See Jones v. Dep't of Health
& Human Svcs., 941 F.2d 1529, 1533 (11th Cir. 1991) (noting that the statement that
the claimant does not have "an impairment or combination of impairments listed in, or
medically equal to one listed in Appendix 1, Subpart P, Regulation No. 4" indicated that
the ALJ considered the combined effect of appellant's impairments); see also Wilson v.
Barnhart, 284 F.3d 1219, 1224-25 (11th Cir. 2002) (holding that an ALJ's statement
that the claimant "did not have an impairment or combination of impairments listed in,
or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4 ...
constitute [d] evidence that [the ALJ] considered the combined effects of [the
claimant's] impairments") (emphasis in original).

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In any event, substantial evidence supports the ALJ’s finding that plaintiff’s
obesity was not severe. A severe impairment is an impairment that significantly limits
a claimant’s physical or mental abilities to do basic work activities. See 20 C.F.R. §§
404.1520(c), 416.920(c); see also 20 C.F.R. §§ 404.1521(a), 416.921(a) (defining a
non-severe impairment). Although plaintiff’s doctors diagnosed her with obesity (R.
210, 257, 263, 287), a diagnosis alone is insufficient to establish that the condition
caused limitations warranting a finding of a severe impairment. See Moore v. Barnhart,
405 F.3d 1208, 1213 n.6 (11th Cir. 2005) (“[T]he mere existence of these impairments
does not reveal the extent to which they limit her ability to work or undermine the
ALJ’s determination in that regard”). Even though a physician advised plaintiff to diet
and exercise, none of plaintiff’s treating physicians opined that plaintiff’s obesity
affected her ability to work or caused any mental limitations (R. 210, 217-19, 227, 257,
260-63, 287-88, 297-99). Thus, substantial evidence supports that plaintiff’s obesity was
not severe, and plaintiff failed to prove her obesity caused limitations beyond those in
the ALJ’s RFC finding.
Plaintiff next argues that the ALJ failed to properly consider her credibility. The
ALJ explicitly and adequately articulated his reasons for discrediting plaintiff’s
subjective testimony (R. 24). See Marburry v. Sullivan, 957 F.2d 837, 839 (11th Cir.
1992). The ALJ’s credibility finding, if supported by substantial evidence, will not be
disturbed by a reviewing court. See Dyer, 395 F.3d at 1210-11.
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Plaintiff testified that she was unable to work due to her mental state and ADHD,
which made her unable to sleep and resulted in crying spells and panic attacks (R. 5056). The ALJ found that the evidence did not substantiate that plaintiff suffered from
a medical condition that reasonably could be expected to produce her alleged symptoms
to the extent alleged (R. 24).
Wolfram Glaser, M.D., examined plaintiff in February 2009 for complaints of
ADHD, anxiety, and marital conflict (R. 210). Dr. Glaser declined to provide a letter
regarding employment because plaintiff did not meet the criteria of a serious mental
illness (R. 309). Plaintiff sought mental health counseling twice in March 2009 with
Mimie Player, a licensed counselor (R. 217-19, 256). Plaintiff’s speech and motor
activity were slowed, her mood was depressed, and her affect was flat (R. 219, 256).
Although she reported memory difficulties and hallucinations, her thought processes
were coherent (R. 219, 256). Ms. Player diagnosed possible borderline intellectual
functioning, ADHD by history, depression, and anxiety (R. 219). Ms. Player stated that
she was not qualified to make a determination regarding the level of plaintiff’s
impairment (R. 311).
In March 2009, plaintiff complained of depression, anxiety, ADHD, trouble
sleeping, and trouble concentrating (R. 227). Janice Morgan, M.D., diagnosed
depression and anxiety and prescribed Paxil (R. 227). In April 2009, plaintiff
complained of “vague depression” and changes in mood, so Dr. Morgan changed her
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medication (R. 263). At three visits in 2009 for complaints of joint pain and low back
pain, Dr. Morgan merely noted plaintiff’s history of depression and anxiety and that she
was currently on medication (R. 257, 260-61). In June 2010, plaintiff saw Daniel Kyle,
M.D., for complaints of anxiety, panic disorders, depression, sleeplessness, delusions,
crying, and racing thoughts (R. 297). Dr. Kyle noted plaintiff was depressed, sad, and
tearful; diagnosed anxiety, depression, and possible bipolar disorder; and recommended
plaintiff see a psychiatrist (R. 298-99). Dr. Kyle later noted he could not provide an
opinion on plaintiff’s disability status because he only examined her once (R. 310).
Thus, based on the record, substantial evidence supports the ALJ’s finding that
plaintiff’s testimony that her mental impairments were completely disabling was not
entirely credible.
Without redeciding the facts or reweighing the evidence, this court can find no
basis upon which to reverse the decision of the ALJ. See e.g., Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990). Accordingly, the decision of the Commissioner of
the Social Security Administration will be affirmed by separate order.
Done, this 7th of May 2013.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

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