Shanks v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 11/20/14. (CTS, )

FILED
2014 Nov-20 PM 02:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SUSAN MCDONALD SHANKS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. 2:13-cv-1770-SLB

MEMORANDUM OPINION
Susan McDonald Shanks (“plaintiff”) brings this action pursuant to 42 U.S.C. §
405(g), seeking review of the final decision of the Commissioner of Social Security
denying her application for a period of disability, disability insurance benefits [“DIB”],
and supplemental security income [“SSI”]. Upon review of the record, the submissions of
the parties, and the relevant law, the court is of the opinion that the Commissioner’s
decision is due to be affirmed.
I. PROCEDURAL HISTORY
Plaintiff initially filed an application for a period of disability, DIB, and SSI on
May 21, 2010, alleging a disability onset date of September 16, 2009. (R. 100-05.)1 This
application was denied on October 12, 2010 by the Social Security Administration
[“SSA”] (R. 47-48.) Subsequently, plaintiff requested a hearing before an Administrative

1

References to page numbers in the Commissioner’s record are set forth as [“R. ___”].

Law Judge [“ALJ”], which was held on April 13, 2012. (R. 61.) After the hearing, the
ALJ found that, while plaintiff was unable to perform any past relevant work, she was
capable of making a vocational adjustment to other work, such as cleaner, marker, and
cashier, which are jobs that exist in significant numbers in the national economy. (R. 1819.) In light of this finding, the ALJ denied plaintiff’s request for a period of disability,
DIB, and SSI on May 4, 2012. (R. 20.)
On May 29, 2012, plaintiff petitioned the Appeals Council to review the ALJ’s
decision. (R. 8.) The Appeals Council found no reason under its rules to review the ALJ’s
decision, and it denied plaintiff’s request for review on July 26, 2013. (R. 1.) Therefore,
the ALJ’s decision is the final decision of the Commissioner of Social Security. (Id.)
Following denial of review by the Appeals Council, plaintiff filed an appeal in this court
on September 24, 2013. (Doc. 1.)2
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court “is limited to
an inquiry into whether there is substantial evidence to support the findings of the
Commissioner, and whether the correct legal standards were applied.” Wilson v.
Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698,
701 (11th Cir. 1988). The court gives deference to factual findings and reviews questions
of law de novo. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court
“may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that
Reference to a document number, [“Doc.___”], refers to the number assigned to each
document as it is filed in the court’s record.
2

2

of the [Commissioner]; rather the court must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.” Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)) (internal quotations and other citation omitted). “The
Commissioner’s factual findings are conclusive if supported by substantial evidence.”
Wilson, 284 F.3d at 1221 (citing Martin, 894 F.2d at 1529; Allen v. Bowen, 816 F.2d 600,
602 (11th Cir. 1987)). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal
quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius,
936 F.2d at 1145. “[N]o . . . presumption of validity attaches to the [Commissioner’s]
conclusions of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
III. DISCUSSION
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential
evaluation to determine whether a claimant is eligible for a period of disability, DIB, and
SSI.3 See 20 C.F.R. § 404.1520(a)(1)-(2); Bowen v. City of New York, 476 U.S. 467, 470
3

The Regulations state:
The sequential evaluation process is a series of five “steps” that we follow in a set
order. . . . If we can find that you are disabled or not disabled at a step, we make
our determination or decision and do not go on to the next step. If we cannot find
that you are disabled or not disabled at a step, we go on to the next step. Before we
3

(1986). For the purposes of this evaluation, the meaning of disability is the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1); 42 U.S.C. § 423(d)(1)(A). The specific steps in the evaluation process are as
follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987).4 If the
claimant is engaged in substantial gainful activity, the Commissioner will find that the

go from step three to step four, we assess your residual functional capacity. . . . We
use this residual functional capacity assessment at both step four and step five
when we evaluate your claim at these steps.
20 C.F.R. § 404.1520(a)(4).
4

The Regulations define “substantial gainful activity”:
(a) Substantial work activity. Substantial work activity is work activity that
involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid
less, or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you
do for pay or profit. Work activity is gainful if it is the kind of work usually
done for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like
taking care of yourself, household tasks, hobbies, therapy, school
attendance, club activities, or social programs to be substantial gainful
activity.
20 C.F.R. § 404.1572.
4

claimant is not disabled, regardless of the claimant’s medical condition or her age,
education, and work experience. 20 C.F.R. § 404.1520(b); § 416.920(b). “Under the first
step, the claimant has the burden to show that she is not currently engaged in substantial
gainful activity.” Reynolds-Buckley v. Comm’r of Soc. Sec., 457 F. App’x 862, 863 (11th
Cir. 2012).5
The ALJ found that plaintiff had not engaged in substantial gainful activity since
September 16, 2009, the alleged onset date. (R. 14.)
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner
must next determine whether the claimant suffers from a severe impairment or
combination of impairments that significantly limits the claimant’s physical or mental
ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c); § 416.920(a)(4)(ii),
(c). “[A] ‘physical or mental impairment’ is an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); §
1382c(a)(3)(D). The regulations provide: “[I]f you do not have any impairment or
combination of impairments which significantly limits your physical or mental ability to
do basic work activities, we will find that you do not have a severe impairment and are,

Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be unpublished
unless a majority of the panel decides to publish it. Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
5

5

therefore, not disabled. We will not consider your age, education, and work experience.”
20 C.F.R. § 404.1520(c); § 416.920(c).
An impairment is “severe” if it “significantly limits [a] claimant’s physical or
mental ability to do basic work activities.”6 Crayton v. Callahan, 120 F.3d 1217, 1219
(11th Cir. 1997); 20 C.F.R. § 404.1520(c); 20 C.F.R. § 404.1521(a). When an impairment
“is a slight abnormality which has such a minimal effect on the individual that it would
not be expected to interfere with the individual’s ability to work, irrespective of age,
education, or work experience,” it will be classified as non-severe. Brady v. Heckler, 724
F.2d 914, 920 (11th Cir. 1984); see also SSR 85-28, 1985 WL 56856 (1985). A claimant
may be found disabled based on a combination of impairments even though none of the
individual impairments alone are disabling. Walker v. Bowen, 826 F.2d 996, 1001 (11th
Cir. 1987); see also 20 C.F.R. § 404.1523; § 416.923. A claimant has the burden to show
that she has a severe impairment or combination of impairments. Reynolds-Buckley, 457
F. App’x at 863.

6

Basic work activities include:
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) [c]apacities for
seeing, hearing, and speaking; (3) [u]nderstanding, carrying out and
remembering simply instructions; (4) [u]se of judgment; (5)
[r]esponding appropriately to supervision, co-workers and usual
work situations; and (6) [d]ealing with changes in a routine work
setting.

20 C.F.R. § 404.1521(b)(1)-(6).

6

The ALJ found that plaintiff had the following medically determinable
impairments: “a history of endometriosis, fibromyalgia, degenerative disc disease of the
cervical spine, mitral valve prolapsed, a history of low back arthralgias, right shoulder
bursitis, depression, and pain disorder.” (R. 14.) The ALJ noted that the “evidence of
record shows that the claimant’s impairments cause more than minimal limitation in her
ability to perform basic work activities.” (Id.)
3. The Listings

If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets the duration requirement and whether it is
equivalent to any one of the listed impairments. 20 C.F.R. § 404.1520(a)(4)(iii), (d)-(e);
§ 404.1525; § 404.1526. Listed impairments are so severe that they prevent an individual
from performing substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see
20 C.F.R. pt. 404, Subpart P, Appendix 1 [The Listings]. If the claimant’s impairment
meets or equals a Listing, the Commissioner must find the claimant disabled, regardless
of the claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d); §
416.920(d). The claimant has the burden of proving that her impairment meets or equals
the criteria contained in one of the Listings. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that plaintiff did not have an impairment or combination of impairments
that met or medically equaled a Listing. (R. 14.) Specifically, the ALJ found
that medical evidence did not establish “the requisite evidence of nerve root compression, spinal
arachnoiditis or lumbar spinal stenosis as required” to satisfy listing 1.04. (R. 15.) The ALJ also
found that plaintiff’s mental impairment did not meet or equal the criteria in listing 12.04
7

because it did not “cause at least two ‘marked’ limitations or one ‘marked’ limitation and
‘repeated’ episodes of decompensation, each of extended duration.” (Id.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment does not meet or equal the criteria of a Listing, the claimant must prove
that her impairment prevents her from performing her past relevant work. See 20 C.F.R. §
404.1520(a)(4)(iv), (f); § 416.920(a)(4)(iv), (f). At step four, the Commissioner “will first
compare [the Commissioner’s] assessment of [the claimant’s] residual functional capacity
[“RFC”] with the physical and mental demands of [the claimant’s] past relevant work.” 20
C.F.R. § 404.1560(b); § 416.960(b). “Past relevant work is work that [the claimant has] done
within the past 15 years, that was substantial gainful activity, and that lasted long enough for
[her] to learn to do it.” 20 C.F.R. § 404.1560(b)(1); § 416.960(b)(1). If the claimant is capable of
performing her past relevant work, the Commissioner will find that she is not disabled. 20 C.F.R.
§ 404.1560(b)(3); § 416.920(f). The claimant bears the burden of establishing that the
impairment prevents her from performing past work. Reynolds-Buckley, 457 F. App’x at 863.

The ALJ found that plaintiff is an individual approaching advanced age (50 years old on
the alleged disability date) with a high school education. (R. 18.) The ALJ found that plaintiff has
the RFC to perform a range of “light exertional unskilled work; with postural activities
performed only occasionally; never climbing ladders, ropes, and scaffolds; and avoiding
exposure to hazards.” (R. 16.) The ALJ found that plaintiff’s RFC restricts her from performing
any past relevant work. (R. 18.)

8

5. Other Work in the National Economy
If the claimant establishes that she is unable to perform her past relevant work, the
Commissioner must show that the claimant—in light of her RFC, age, education, and work
experience—is capable of performing other work that exists in substantial numbers in the
national economy. Reynolds-Buckley, 457 F. App’x at 863; see also 20 C.F.R. § 404.1520(c)(1);
§ 416.920(g). The regulations provide:
If we find that your residual functional capacity does not enable you to do any of
your past relevant work . . . we will use the same residual functional capacity
assessment when we decide if you can adjust to any other work. We will look at
your ability to adjust to other work by considering your residual functional
capacity and the vocational factors of age, education, and work experience . . . .
Any other work (jobs) that you can adjust to must exist in significant numbers in
the national economy (either in the region where you live or in several regions in
the country).
20 C.F.R. § 404.1560(c)(1); § 416.960(c)(1). If the claimant is not capable of performing such
other work, the Commissioner must find the claimant disabled. 20 C.F.R. § 404.1520(g); §
416.920(g).
The ALJ consulted a Vocational Expert [“VE”] to determine whether any jobs exist in the
national economy that plaintiff could perform, considering her RFC, age, education, and work
experience. The VE testified that an individual with plaintiff’s limitations and vocational factors
could perform the jobs of cleaner, marker, and cashier, which are jobs that exist in significant
numbers in the national economy. (R. 19, 41.)
Because the ALJ found that jobs consistent with plaintiff’s RFC and vocational factors exist in
significant numbers, the ALJ found that plaintiff was not disabled. (Id.)
B. MS. SHANKS’S CLAIMS

9

Plaintiff challenges the ALJ’s RFC assessment on the grounds that the ALJ did not
support the assessment with a medical source opinion, (Doc. 11 at 7), and that the ALJ failed

to make “mental RFC findings,” (Id. at 6). Plaintiff also contends that the ALJ failed to
set out limitations in his RFC findings with sufficient specificity. (Id.)
1. Lack of a Medical Source Opinion
Plaintiff admits that, while an ALJ “may ask for and consider the opinion of a
medical or psychological expert concerning whether [the claimant’s] impairment(s) could
reasonably be expected to produce [the] alleged symptoms,” 20 C.F.R. § 404.1529(b)
(emphasis added), an ALJ is not required to do so. SSR 96-7p explains the two step
process set out in 20 C.F.R. § 404.1529 and § 416.929 that the ALJ must follow7: “First,
the adjudicator must consider whether there is an underlying medically determinable
physical or mental impairment—i.e., an impairment(s) that can be shown by medically
acceptable clinical and laboratory diagnostic techniques—that could reasonably be
expected to produce the individual’s pain or other symptoms.” This determination does
not consider the “intensity, persistence, or functionally limiting effects of the individual’s
symptoms.” SSR 96-7p. If the ALJ finds that the plaintiff’s case survives the first step,
then

Apparently the Eleventh Circuit considers the standard set out in the regulations and the
standard in Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991), as one and the same. Wilson v.
Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002) (“Furthermore, the ALJ cites to 20 C.F.R.§
404.1529, which contains the same language [as Holt] regarding the subjective pain testimony
that this Court interpreted when initially establishing its three-part pain standard. In citing to §
404.1529 and based on the findings and discussion, it is clear that the ALJ applied this Circuit's
pain standard [from Holt].”). Because SSR 96-7p offers an in-depth explanation of the
regulations and is more recent than Holt, the court looks to it for guidance.
7

10

the adjudicator must evaluate the intensity, persistence, and
limiting effects of the individual’s symptoms to determine the
extent to which the symptoms limit the individual’s ability to
do basic work activities. For this purpose, whenever the
individual’s statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the adjudicator
must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.
SSR 96-7p.
The ALJ found that “[t]he medical evidence supports the claimant’s diagnosis for
physical and mental impairments but not as limiting as the claimant alleged.” (R. 17.) In a
Function Report, plaintiff noted difficulty with reaching, bending, remembering tasks,
concentrating, walking more than a few feet, lifting, squatting, standing, climbing stairs,
sitting, and kneeling. (R. 137-41.) Plaintiff also testified that she cannot drive long
distances, cannot sit more than thirty minutes, can walk only a block on a “good day,” and
can stand only five minutes before she is in pain. (R. 31-37.) She testified that her
daughter does “most of” the chores, such as laundry and cleaning. (R. 32.)
The ALJ first considered plaintiff’s musculoskeletal impairments, which included
fibromyalgia, degenerative disc disease of the cervical spine, low back arthralgias, and
right shoulder bursitis. (R. 17.) The ALJ noted that x-rays of plaintiff in March 2009
showed “mild discogenic degenerative disease but normal alignment,” and January 2011
x-rays of plaintiff’s left shoulder appeared normal. (Id.) Because plaintiff’s alleged onset
disability date is September 16, 2009, the March 2009 x-rays provide relatively little
evidence of plaintiff’s condition from September 2009 to the date of the ALJ’s opinion.

11

Additionally, x-rays of plaintiff’s left shoulder do not address plaintiff’s right shoulder
bursitis and do not provide significant evidence that plaintiff’s fibromyalgia is not as
limiting as alleged. However, the ALJ relied on additional evidence: “[n]otably, the
claimant does not have diagnostic evidence supportive of a referral to see a specialist or a
recommendation for even physical therapy.” (Id.) Plaintiff’s conservative treatment history
provided substantial evidence for the ALJ to discredit plaintiff’s allegations of disabling pain.
See Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996) (finding that plaintiff’s “course of
treatment [that was] entirely conservative in nature” constituted substantial evidence supporting
the ALJ’s opinion) (internal quotations omitted). The ALJ also cited a January 2012 report

noting that plaintiff’s back pain was “stable” to support his findings. (R. 17, 392.)
Additionally, the ALJ considered medical reports by consulting physician Dr. Jack
Zaremba. (R. 17.) Dr. Zaremba examined plaintiff in March 2012 and reported that
plaintiff had several medical impairments, including hypertension, fibromyalgia,
degenerative disc disease of the cervical and thoracic spine, bilateral shoulder arthralgia,
mitral valve prolapse, ovarian cysts, asthma, and COPD. (R. 401.) Dr. Zaremba opined
that plaintiff had the following limitations: sitting for only three hours, standing and
walking for only one hour, lifting limited to two pounds, and no ability to push and pull or
reach. (R. 404.) The ALJ assigned little weight to Dr. Zaremba’s assessment of plaintiff’s
limitations because the limitations were inconsistent with Dr. Zaremba’s physical
examination of plaintiff, in which Dr. Zaremba reported that plaintiff is a “[w]ell

12

developed well nourished female in no acute distress.” (R. 402.)8 The report also noted
that plaintiff has a full range of motion in her extremities, and a normal range of motion
in her shoulders, except for only 20-30 degree limitations in “abduction” and “forward
elevation.” (R. 17, 409.)
Plaintiff does not contest the ALJ’s decision to assign little weight to Dr.
Zaremba’s opinion, but rather, contends that the ALJ had to further develop the record by
obtaining a medical source opinion. However, the ALJ was not required to further
develop the record, given that the ALJ based his findings on substantial evidence,
including the evidence noted above and plaintiff’s physical activities. Plaintiff stated that
she cannot walk more than a few feet at a time, but on a Function Report asking about
daily activities, plaintiff stated that she engages in “walking for exercise and physical well
being.” (R. 136). Additionally, Dr. Dan Lowery, an examining psychologist,
recommended that plaintiff perform low intensity exercise, such as aquatic aerobics, to
“improve her mood and reduce her pain.” (R. 312.) In making this recommendation, Dr.
Lowery considered not only plaintiff’s depression but also plaintiff’s physical disorders,
including fibromyalgia and mitral valve prolapse. (R. 309, 312.) The ALJ noted that
Even though plaintiff does not contest the ALJ’s decision to assign little weight to Dr.
Zaremba’s recommended limitations, (see Doc. 11 at 9), the court notes that the ALJ did
not err in doing so. “[T]he testimony of a treating physician must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Lewis v. Callahan,
125 F.3d 1436, 1440 (11th Cir. 1997). “[G]ood cause exists when the: (1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir.
2004) (internal quotations omitted). Dr. Zaremba’s opinion was inconsistent with his
medical records from plaintiff’s physical exam. (R. 17, 401-04.)
8

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plaintiff’s alleged inability to carry out physical activities is inconsistent with Dr.
Lowery’s recommendation. (R. 17.)
The ALJ addressed plaintiff’s endometriosis and noted that plaintiff had a
hysterectomy in 2010. (R. 17, 354.) Because plaintiff testified that the hysterectomy
relieved the excessive uterine bleeding she experienced in 2009, the ALJ relied on
substantial evidence in finding that plaintiff’s endometriosis did not limit plaintiff from
engaging in substantial gainful activity. (R. 17, 38-39.)
The ALJ did not err in assessing plaintiff’s RFC. In relying on plaintiff’s medical
history, reports by plaintiff’s examining practitioners, plaintiff’s conservative treatment
history, and plaintiff’s activities, the ALJ based his finding that plaintiff is not disabled on
substantial evidence and, thus, was not required to seek a medical source opinion before
making this determination.
2. Mental RFC Findings
Plaintiff contends the ALJ erred by not making “mental RFC findings.” (Doc. 11
at 6.) Specifically, plaintiff claims that, after having found that plaintiff has moderate
difficulty with concentration, persistence, and pace, the ALJ had to account for that
difficulty by limiting plaintiff’s RFC accordingly. (Id. at 6-7.) The ALJ found that
plaintiff’s depression and pain disorder were not as limiting as alleged because the record
contained “no [reports] of counseling, no specialized treatment, no recommendations to
see a specialist, and no inpatient treatment.” (R. 17.) Dr. Lowery, the examining
psychologist, gave plaintiff a Global Assessment of Functioning [“GAF”] score of 60,

14

which indicates a “moderate” level of impairment. (R. 17, 312.) A score between 51 and
60 indicates an assessment of “[m]oderate symptoms OR moderate difficulty in one of the
following: social, occupational, or school functioning.” American Psychiatric Assoc.,
DIAGNOSTIC

AND

STATISTICAL MANUAL

OF

MENTAL DISORDERS 34 (4th ed. 1994)

(DSM-IV). Consistent with plaintiff’s GAF score, the ALJ noted that plaintiff had
moderate difficulty in concentration, persistence, and pace, (R. 15), but the ALJ did not
explicitly account for that limitation in his RFC assessment, (R. 16). The Commissioner
contends that the ALJ was not required to do so, and the court agrees.
“[W]hen medical evidence demonstrates that a claimant can engage in simple,
routine tasks or unskilled work despite limitations in concentration, persistence, and pace,
courts have concluded that limiting the hypothetical to include only unskilled work
sufficiently accounts for such limitations.” Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1180 (11th Cir. 2011). The ALJ recognized that plaintiff’s “depression and anxiety
had a bearing on her [RFC],” but noted that the “level of treatment and reported
symptoms are consistent with her ability to perform within the [RFC] identified in this
decision.” (R. 17.) The ALJ relied on substantial evidence in finding that plaintiff’s
mental impairments do not limit her ability to perform unskilled work. Therefore, by
asking the VE a hypothetical question regarding an individual who could perform only
“light, unskilled work,” (R. 40), the ALJ accounted for plaintiff’s moderate difficulties in
concentration, persistence, and pace, even without stating so explicitly.

15

3. Specificity of RFC Findings
Plaintiff contends that, in assessing plaintiff’s RFC, the ALJ failed to meet the
specificity requirement of SSR 96-8p, mandating that an RFC assessment “identify the
individual’s functional limitations or restrictions and assess his or her work-related
abilities on a function-by-function basis.” SSR 96-8p. Specifically, plaintiff claims that
the ALJ did not “enumerate the postural functions he limited generically to occasional,”
and did not state the types of hazards to be avoided under the RFC findings. (Doc. 11 at
6.)
The ALJ made the following RFC assessment: plaintiff “is capable of light
exertional unskilled work; with postural activities performed only occasionally; never climbing
ladders, ropes, and scaffolds; and avoiding exposure to hazards.” (R. 16.) As the Commissioner

notes, several courts have recognized an ALJ’s use of the term “postural activities” to
generally mean bending, climbing, kneeling, stooping, crouching, balancing, and
crawling. (Doc. 12 at 15.) See Navas v. Comm’r of Soc. Sec., 289 F. App’x 555, 558 (3d
Cir. 2008) (finding that the ALJ sufficiently defined the claimant’s limitations by stating
that “[the] claimant was incapable of performing postural activities with more than
occasional regularity”); Giles v. Astrue, 433 F. App’x 241, 244 (5th Cir. 2011) (stating
that the ALJ limited plaintiff to “no more than frequent postural activities (and no
climbing of ladders)”); Brooks v. Soc. Sec. Admin., 430 F. App’x 468, 474 (6th Cir. 2011)
(noting that the ALJ asked the VE about the abilities of an individual limited to “no
postural activities except for occasional balancing”); O’Connor-Spinner v. Astrue, 627

16

F.3d 614, 617 (7th Cir. 2010) (noting that the ALJ posed a hypothetical question about a
worker limited from “postural activities like crouching or crawling”); Abreu v. Astrue,
303 F. App’x 556, 558 (9th Cir. 2008) (finding the ALJ’s step-four analysis proper where
the ALJ “concluded that [the claimant] has ‘the [RFC] to perform light work activity
which involves occasional postural activities’”). The court finds no error in the ALJ’s use
of the term “postural activities.” Additionally, the ALJ’s assessment that plaintiff should
avoid “exposure to hazards” was sufficiently specific to indicate plaintiff’s limitations.
See Holland v. Comm’r of Soc. Sec., 530 F. App’x 860, 863 (11th Cir. 2013) (rejecting an
argument that the ALJ’s hypothetical question to the VE was deficient where the
hypothetical required avoidance of “hazards in the work place”).
Even if the ALJ failed to sufficiently specify the postural activities and hazards to
which the RFC refers, the ALJ’s error was harmless. The ALJ posed a hypothetical
question to the VE to determine the job opportunities available to an individual with the
same RFC as plaintiff. (R. 40.) Of the three jobs the VE identified, all would satisfy the
requirements of a RFC that more specifically delineated which postural activities and
hazards the ALJ limited in his RFC findings. For example, according to the Dictionary of
Occupational Titles [“DOT”], the job of cleaner requires occasional stooping, kneeling,
and crouching, but requires no balancing, crawling, or climbing. DICOT 323.687-014
(G.P.O.), 1991 WL 672783. Given that the ALJ’s RFC assessment provides for
occasional postural activities, the job of cleaner accommodates plaintiff’s limitations, so
the ALJ did not err in generally limiting plaintiff’s “postural activities.” Under the DOT,

17

neither the job of marker nor cashier requires any climbing, balancing, stooping, kneeling,
crouching, or crawling, so those jobs similarly accommodate plaintiff’s limitations.
DICOT 209.587-034 (G.P.O.), 1991 WL 671802; DICOT 211.462-010 (G.P.O.), 1991
WL 671840. Additionally, none of the three identified jobs requires exposure to any type
of hazard. See DICOT 323.687-014 (G.P.O.), 1991 WL 672783; DICOT 209.587-034
(G.P.O.), 1991 WL 671802; DICOT 211.462-010 (G.P.O.), 1991 WL 671840.
The ALJ identified limitations with sufficient specificity in his RFC findings, and
thus, did not err.
IV. CONCLUSION
Based on the reasons stated above, this court is of the opinion that the
Commissioner’s decision is due to be affirmed.

An Order in accordance with this

Memorandum Opinion will be entered contemporaneously herewith.
DONE this 20th day of November, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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