Smith v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate Judge Harwell G Davis, III on 01/29/15. (SPT )

FILED
2015 Jan-29 AM 11:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

VENITA LORRAINE SMITH,
Plaintiff
vs.
CAROLYN COLVIN,
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant

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) Case No. 2:13-cv-02347-HGD
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MEMORANDUM OPINION
This matter is before the undersigned U.S. Magistrate Judge based on the
consent of the parties pursuant to 28 U.S.C. § 636(c). Plaintiff, Venita Lorraine
Smith, filed for a period of disability and disability insurance benefits (DIB) and
Supplemental Security Income (SSI) on April 25, 2010, alleging she became disabled
on April 30, 2010. (Tr. 19, 115, 119). Her application was denied. Plaintiff
requested a hearing before an Administrative Law Judge (ALJ). Following this
hearing, the ALJ issued an unfavorable decision on November 3, 2012, finding
plaintiff was not disabled. (Tr.19-28). The Appeals Council denied review. (Tr. 1-

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3). Consequently, the Commissioner’s decision is now ripe for review under 42
U.S.C. §§ 405(g) and 1383(c)(3).
I.

ALJ Decision
Disability under the Act is determined under a five-step test. 20 C.F.R.

§ 404.1520. First, the ALJ must determine whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). “Substantial work
activity” is work 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. § 404.1520(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 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 the 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 first must determine the claimant’s residual functional
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capacity (RFC), which refers to the claimant’s ability to work despite his
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 that the
claimant is 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 his 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 the RFC, age, education and work experience.

20 C.F.R.

§§ 404.1520(g) and 404.1560(c).
At Step One, the ALJ found that plaintiff had not engaged in substantial gainful
activity since April 30, 2010, the alleged onset date. At Step Two, the ALJ found that
Smith had the following severe impairments: congestive heart failure, hypertension,
depression and obesity. (Tr. 21). At Step Three, the ALJ found that plaintiff did not
have an impairment or combination of impairments that met or medically equaled the

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severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. (Tr. 22).
The ALJ then reported that, after consideration of the entire record, plaintiff
has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b), except that she must avoid concentrated exposure to extreme heat or cold
and all exposure to hazardous, moving machinery and unprotected heights. He
further found that she can carry out, remember and understand simple, but not
detailed or complex, instructions. (Tr. 24).
At Step Four, the ALJ found that plaintiff is capable of performing past
relevant work as a dietary aide, a care-giver, and a protective service monitor.
According to the ALJ, the vocational expert (VE) testified that plaintiff’s past
relevant work as a dietary aide and as a care-giver are both classified as unskilled
work at the light level of exertion, but that plaintiff reportedly performed them at the
medium level of exertion. The VE also testified that plaintiff’s past work as a
protective service monitor is classified as semi-skilled work at the sedentary level of
exertion. According to the VE, plaintiff could perform her past relevant work as a
dietary aide and a care-giver as it is generally performed, but not as she actually
performed it. He further testified that plaintiff could perform her past relevant work
as a protective service monitor both as it is generally performed and as she actually
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performed it. (Tr. 27). Based on these findings, the ALJ concluded that plaintiff is
not disabled under the Social Security Act. (Tr. 28).
II.

Plaintiff’s Argument for Reversal
Plaintiff asserts that the ALJ erred in rejecting the opinion of a physician’s

assistant, which plaintiff references as a treating source. (Doc. 12, Brief of Plaintiff,
at 6). Plaintiff also states that the ALJ failed to adequately consider plaintiff’s obesity
and to develop the record concerning her mental limitations. (Id. at 8-10).
III.

Standard of Review
Judicial review is limited to 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. Brown, 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,
re-evaluate 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)).
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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 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.
IV.

Discussion
The ALJ stated in his findings that, after considering all the evidence, he found

that plaintiff’s determinable impairments could reasonably be expected to cause the
alleged symptoms. However, he found that her statements concerning the intensity,
persistence and limiting effects of these symptoms were not credible to the extent that
they were inconsistent with the above -stated RFC assessment. (Tr. 24).
In addition to her severe impairments, the ALJ also found that plaintiff suffered
from hypokalemia, insomnia, dyslipidemia and anemia. However, these are not
severe impairments. Nonetheless, he considered the effects of these impairments
when determining plaintiff’s RFC. He found no evidence that plaintiff’s non-severe

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impairments impose any functional limitations on her ability to perform the exertional
or non-exertional demands of work. (Tr. 25).
The ALJ noted that, with regard to plaintiff’s obesity, she is 5'4" tall and
weighs 305 pounds. This gives her a body mass index (BMI) of 52.3. (Tr. 25).
Elsewhere in his decision, he notes that plaintiff’s activities of daily living are mildly
restricted. She reported that she is largely independent in her personal care and
grooming, but sometimes needs assistance in getting dressed. She testified that she
does light housework, but spends most of the day lounging around. (Tr. 22-23). She
can prepare simple meals. She does not drive, but does grocery shopping when her
daughter takes her to the store. She has a nine-year-old son who lives with her and
for whom she is the primary care-giver. (Tr. 23).
The ALJ found that, with respect to her hypertension, the objective evidence
shows that plaintiff began experiencing problems controlling her blood pressure in
April 2010. In April 2010, she was seen at Cooper Green Hospital complaining of
needing blood pressure medicine because she had been out for over a month. She
began seeing a physician in May 2010 at Cooper Green Hospital, but she still had
problems controlling her blood pressure in July 2010 because she again ran out of
medication and had not gotten the prescription refilled. The ALJ noted that the

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objective evidence reflects that plaintiff’s hypertension is well-controlled when she
takes her medication. (Tr. 25).
Regarding plaintiff’s congestive heart failure, the ALJ noted that she
underwent an x-ray in May 2010 which reflected a marked cardiomegaly with
moderate shortness of breath and marked edema that markedly improved with
medication. She was diagnosed as having congestive heart failure at that time. (Tr.
25). The ALJ further noted that plaintiff takes medication to control these symptoms
and that, in May 2011, her studies were negative for congestive heart failure. (Tr.
25). Though plaintiff reported that she slept with two or three pillows at night and
complained of shortness of breath and orthopnea, she had a normal echocardiogram,
with normal ejection fraction, and no valvular regurgitation or pericardial effusion in
May 2011. (Tr. 25).
The ALJ also addressed plaintiff’s alleged mental impairment of depression,
noting that the objective evidence reflects no real mental health treatment for
depression before June 2012. In May 2010, plaintiff complained of depression over
her health but denied suicidal ideation, reporting her seven-year-old son and her
grandchild were her reasons to live. Plaintiff was prescribed Celexa by her primary
care physician and continued to take this medication until February 2011. (Tr. 25).

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In June 2012, plaintiff began seeking mental health therapy, complaining of
symptoms of depression. She was diagnosed with major depressive disorder, chronic,
moderate. (Tr. 25, citing Ex. 12F at 4). Elsewhere in his decision, the ALJ found
that, in social functioning, plaintiff has only mild difficulties. She testified that she
has no difficulty getting along with other people but testified that she has no friends.
However, in papers she filed with her application for disability benefits, she reported
that she talks on the telephone daily to friends for social activity. (Tr. 23).
With regard to concentration, persistence and pace, plaintiff was found to have
moderate difficulties. She reported that she can pay attention for 45 minutes at a time
and is only “okay” with following instructions. However, the ALJ also noted that
plaintiff reported that she enjoys watching television, suggesting that she is able to
concentrate for the duration of a television show.

(Tr. 23).

She has never

experienced an episode of decompensation. (Tr. 23).
According to the ALJ, plaintiff alleged that she could only walk about a block
before she has to quit and that she can only stand about 30 minutes before having to
change positions.

She takes medication to control her physical and mental

impairments, but has some problems with compliance. (Tr. 26).
In his decision, the ALJ found that plaintiff described daily activities which are
not limited to the extent one would expect, given the complaints of disabling
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symptoms and limitations. He noted that plaintiff requires some assistance in
dressing, but is otherwise independent in her personal grooming and hygiene. He
again noted that she can prepare simple meals and is the primary care-giver for her
nine-year-old son. (Tr. 26).
In his decision, the ALJ found that plaintiff’s work history also does not
support a finding that she is totally disabled, noting that plaintiff testified that she left
her job as a care-giver when her client died and not due to her disabling symptoms.
She did not look for work after her client died and instead sought unemployment
benefits. She looked for work and applied in several places, but was never called
back. The ALJ found that the fact that plaintiff was seeking work and felt she was
capable of working is persuasive in considering whether she is totally disabled. (Tr.
26).
The ALJ gave little weight to the opinion of consultative physician, Dr. Edward
A. Childs, Jr., M.D. Dr. Childs’ notes state that plaintiff’s records reflect noncompliance with medication, clear lungs and hypertension. He noted that her
echocardiogram in May 2011 was normal. He opined that “[w]ith compliance, this
appears to be a manageable issue . . . rating 02.” (Tr. 202).
The ALJ gave little weight to this opinion, stating that, “[w]hile the objective
evidence of record does indicate the claimant’s impairments are controllable with
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treatment and medication, the claimant’s testimony indicates finding the claimant
capable of performing light work is reasonable while viewing the evidence in a light
more favorable to the claimant.” (Tr. 26). The ALJ does not expound on just exactly
what evidence he viewed more favorably toward plaintiff in deciding to give this
opinion little weight.
The ALJ also considered the opinion of the State agency psychological
consultant and found it to be of little weight. (Tr. 27). In his notes, the consultant
stated that plaintiff’s depression was not severe, that she has poor medical compliance
and that she would do better if she had better medical compliance. (Tr. 215).
However, the ALJ found this opinion to be of little weight, holding that plaintiff’s
current mental health treatment and her testimony establish that her depression is a
severe impairment. (Tr. 27).
A physical capacities evaluation was performed by Mr. Benjamin Dale, a
physician’s assistant at Jefferson Metro Care. Mr. Dale found that plaintiff was
limited to lifting five pounds occasionally or less, with no pushing or pulling,
climbing stairs or stooping, and only occasional gross and fine manipulation, bending
or reaching. (Tr. 217). Dale also found that plaintiff suffered from pain which was
greatly increased by physical activity and to such a degree as to cause distraction from
tasks or total abandonment of tasks. (Tr. 218). Dale also found that plaintiff suffered

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from fatigue/weakness which greatly increased with physical activity to such a degree
as to cause total abandonment of tasks. (Tr. 220). Apparently under the impression
that Dale was a physician, the ALJ found that “Dr. Dale’s opinion is inconsistent with
his own treatment records regarding the claimant’s physical abilities and the severity
of her impairments.” (Tr. 27).
Plaintiff alleges that, because the ALJ gave little weight to any of the opinions
from medical sources in determining the plaintiff’s RFC, there was no MSO (medical
source opinion) on which the ALJ could rely. Plaintiff claims that the ALJ should
have considered the opinion of Physician’s Assistant Dale as an “other” source of
information to show the severity of plaintiff’s impairments. She also asserts that the
RFC as stated by the ALJ failed to address each area of functioning under SSR 96-8p.
That ruling states, in pertinent part:
The RFC assessment must first identify the individual’s functional
limitations or restrictions and assess his or her work-related abilities on
a function-by-function basis, including the functions in paragraphs (b),
(c), and (d) of 20 C.F.R. sections 404.1545 and 416.945. Only after that
may RFC be expressed in terms of the exertional levels of work,
sedentary, light, medium, heavy, and very heavy.
SSR 96-8p(4).
Mr. Dale’s opinion is set out above and reflects rather severe limitations in
plaintiff’s functional capabilities. A physician’s assistant is not an acceptable medical
source. See 20 C.F.R. §§ 404.1513(a) and 416.913(a). As a result, he cannot provide
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an opinion that is the basis for finding any impairment, nor can he provide a medical
opinion, which would be subject to the treating physician rules. See 20 C.F.R.
§§ 404.1513(a), 404.1527(a)(2), 416.913(a) and 416.927(a)(2).
In any event, the ALJ rejected Mr. Dale’s opinion on the ground that it was
inconsistent with his own treatment notes. In this respect, Mr. Dale’s treatment
record for May 31, 2011, reflects that, though plaintiff was obese and diagnosed with
hypertension, hypokalemia, anemia, dyslipidemia, depression and congestive heart
failure, she had run out of her hypertension medication for more than a week and had
otherwise normal examination findings. (Tr. 199). Mr. Dale’s record at this time also
reflects that plaintiff had normal echocardiogram results. (Tr. 197, 199). He
encouraged plaintiff to manage her obesity with portion control and exercise. (Tr.
199). The normal examination and testing results, as well as Mr. Dale’s advice to use
portion control and exercise, contrast with his severely limiting opinion and provide
sufficient reason for the ALJ to reject his opinion.
Plaintiff also contends that the ALJ should have further developed the record
by ordering a consultative examination, particularly with regard to her mental health
allegations. The regulations laid out in 20 C.F.R. § 404.1512(d)-(f) state that the ALJ
may ask the claimant to attend a consultative examination at the Commissioner’s
expense, but only after the Commissioner (through the ALJ) has given “full

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consideration to whether the additional information needed . . . is readily available
from the records of [the claimant’s] medical sources.” 20 C.F.R. § 404.1519a(a)(1).
The regulations “normally require” a consultative examination only when necessary
information is not in the record and cannot be obtained from the claimant’s treating
medical sources or other medical sources. 20 C.F.R. § 404.1519a(b); Doughty v.
Apfel, 245 F.3d 1274, 1280-81 (11th Cir. 2001).
There was sufficient evidence in the record in this case to support the ALJ’s
determination regarding plaintiff’s mental health. Plaintiff did not receive any formal
mental health treatment until June 2012. Additionally, the records of her mental
health therapy from June 21, 2012, reflect a stable mood and positive feelings with
decreased allegations of hallucinations. Also, plaintiff reported that she was going
to look into starting a gym membership, which she thought she could do if she ate out
less often. (Tr. 235). Plaintiff’s activities of daily living were also considered by the
ALJ. Likewise, records reflect that, when she took her medication, her condition
improved. The evidence, viewed as a whole, does not reflect that the ALJ needed
further evidence or a consultative examination to make an informed decision
concerning her mental limitations.
The ALJ did not need to adopt a particular medical source opinion regarding
plaintiff’s functional capabilities in order to assess her RFC. He had to formulate the

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RFC finding based on a full consideration of all the relevant evidence in the record.
It is the ALJ’s responsibility to determine RFC, not a physician’s. 20 C.F.R.
§§ 404.1527(e)(2), 404.1546(c), 416.927(e)(2) and 416.946(c). The ALJ did not err
in finding plaintiff’s RFC in the absence of any MSO in the record. “[T]he
Commissioner’s regulations do not require the ALJ to base his RFC finding to
include such an opinion on an RFC assessment from a medical source. Therefore, the
failure to include such an opinion at the State agency level does not render the ALJ’s
RFC assessment invalid.” Malone v. Colvin, 2013 WL 4502075, at *5 (N.D.Ala.
Aug. 22, 2013) (quoting Langley v. Astrue, 777 F.Supp.2d 1250, 1261 (N.D.Ala.
2011)). Nor does the ALJ need to rely on a formal RFC assessment issued by a
physician. Id. (citing Langley, 777 F.Supp.2d at 1257-58 (citing Green v. Comm’r
of Soc. Sec., 223 Fed.Appx. 915, 923-24 (unpublished) (11th Cir. 2007)). In this
case, plaintiff’s medical treatment records support the ALJ’s RFC finding. This is
sufficient substantial evidence to support the ALJ’s determination.
Plaintiff also contends that the ALJ failed to properly consider her obesity,
stating that her BMI was in excess of the worst level of obesity discussed in SSR 021p and that obesity can be the cause of complications and exacerbations of physical
and mental conditions. However, the ALJ did address plaintiff’s obesity. He noted
that plaintiff is 5'4" tall and weighs 305 pounds. The ALJ noted that, despite her

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obesity, plaintiff’s activities of daily living are only mildly restricted. She reported
that she is largely independent in her personal care and grooming, but sometimes
needs assistance in getting dressed. She testified that she does light housework, but
spends most of the day lounging around. (Tr. 22-23). She can prepare simple meals.
She does not drive, but does grocery shopping when her daughter takes her to the
store. She has a nine-year-old son who lives with her and for whom she is the
primary care-giver. (Tr. 23). Thus, despite her obesity, it is clear that plaintiff is not
totally disabled by it.
Under SSR 02-1p, an RFC assessment should take account of the effect obesity
has upon the individual’s ability to perform routine movement and necessary physical
activity within the work environment. Solomon v. Comm’r, Soc. Sec. Admin, 532
Fed.Appx. 837, 840-41 (unpublished) (11th Cir. 2013). While plaintiff points to the
effects obesity could have on her, she points to no evidence in the record that reflects
any actual impact her obesity had in exacerbating her other impairments or any
limitations obesity caused other than those found in the RFC. Therefore, plaintiff has
failed to show that the ALJ erred in evaluating her obesity.
V.

Conclusion
Substantial evidence supports the ALJ’s RFC finding that plaintiff can perform

a range of light work with certain limitations. Plaintiff has failed to show that she is

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more limited than found by the ALJ. The ALJ properly considered the relevant
evidence and properly weighed it in making his decision. His findings provide a
thorough and detailed discussion of plaintiff’s medical history, testimony and the
record as a whole. Consequently, the ALJ’s determination that plaintiff is not
disabled is due to be affirmed. A separate order will be entered.
DONE this 29th day of January, 2015.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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