Greene v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 7/1/2015. (KAM, )

FILED
2015 Jul-01 PM 03:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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Case No. 2:14-cv-00799-JEO

MEMORANDUM OPINION
Plaintiff Pamela Greene brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying her application for disability insurance
benefits. (Doc. 1).1 The case has been assigned to the undersigned United States
Magistrate Judge pursuant to this court’s general order of reference. The parties
have consented to the jurisdiction of this court for disposition of the matter. (Doc.
6). See 28 U.S.C. § 636(c), FED. R. CIV. P. 73(a). Upon review of the record and
the relevant law, the undersigned finds that the Commissioner’s decision is due to

1

References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of
the Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.
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be affirmed.
I. PROCEDURAL HISTORY
On May 11, 2010, Greene filed an application for a period of disability and
disability insurance benefits, alleging disability beginning March 27, 2010. (R.
19, 117-21).2 Her application was denied by the State Agency. (R. 59, 62-67).
She then requested a hearing before an Administrative Law Judge (“ALJ”), which
was held on June 1, 2012. (R. 40-58). Greene, her counsel, and a vocational
expert (“VE”) attended the hearing. (R. 42). The ALJ issued a decision on
August 15, 2012, finding that Greene was not entitled to benefits. (R. 16-34).
Greene requested the Appeals Council to review the ALJ’s decision. (R.
14). The Appeals Council denied Dixon’s request for review on February 27,
2014. (R. 1-5). On that date, the ALJ’s decision became the final decision of the
Commissioner. Greene then filed this action for judicial review under 42 U.S.C. §
405(g). (Doc. 1).
II. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the decision of

2

References herein to “R.___” are to the page number of the administrative record which
is encompassed within Docs. 4-1 through 4-13.
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the Commissioner is supported by substantial evidence and whether proper legal
standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct. 1420,
1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This
court must “scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Id. It
is “more than a scintilla, but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If
the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, it must reverse the ALJ’s decision. Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits under the Social Security Act, a claimant
must show the “inability to engage in any substantial gainful activity by reason of
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any medically determinable physical or mental impairment 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 12 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 demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §
423(d)(3).
Determination of disability under the Social Security Act requires a five
step analysis. 20 C.F.R. § 404.1520(a). Specifically, the Commissioner must
determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014) (citing 20
C.F.R. § 404.1520(a)(4)). “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.’” McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th
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Cir. 1986). “Once a finding is made that a claimant cannot return to prior work
the burden shifts to the [Commissioner] to show other work the claimant can do.”
Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted). The
Commissioner must further show that such work exists in the national economy in
significant numbers. Id.; Evans, 551 F. App’x at 524.
IV. FINDINGS OF THE ALJ
Greene was 51 years old on her alleged onset date and 53 years old at the
time of her hearing before the ALJ. (R. 46, 117). She completed the eighth grade
and has past relevant work experience as a convenience store manager. (R. 46,
54). She alleges that she has been unable to work since March 27, 2010, due to
her alleged disabling condition. (R. 117).
The ALJ found that Greene had the following severe impairments:
“coronary artery disease status post bypass surgery, multiple cauterizations (sic)3
and stents; recurrent hernias; pelvic adhesive disease; osteopenia; radiculopathy;
residual pain secondary to a history of motor vehicle accidents; cervicalgia;
myalgias; insomnia; and epilepsy.” (R. 21). He also found that Greene had
several non-severe impairments, including obesity, hypertension, gastrointestinal

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The correct reference is most likely catheterizations in view of Plaintiff’s medical

history.
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issues, liver issues, gynecological issues, polysubstance abuse, depression and
anxiety, and a number of other minor conditions. (R. 21-24). He determined,
however, that Greene did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed impairments in the
Listings.4 (R. 25)
The ALJ then found that Greene had the residual functional capacity5
(“RFC”) to perform light work, subject to the following limitations: she can lift,
carry, push and pull 20 pounds occasionally and 10 pounds frequently; she can sit,
stand, and walk 6 hours each intermittently throughout an 8-hour day; she should
never climb ladders, ropes or scaffolds and should only occasionally climb stairs
and ramps; she should only occasionally stoop, kneel, crouch, and crawl; she can
frequently engage in activities requiring balance; she should avoid concentrated
exposure to the operational controls of moving machinery; and she should avoid
unprotected heights. (R. 26).
Premised on the testimony of the VE, the ALJ determined that Greene could
perform her past relevant work as a convenience store manager as such work is
generally performed. (R. 33, 54-55). Alternatively, the ALJ found that there are
4

The Listings are located at 20 C.F.R. pt. 404, subpt. P, app. 1.

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Residual functioning capacity is the most a claimant can do despite her impairment(s).
See 20 C.F.R. §404.1545(a)(1).
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other jobs in the national economy that Greene is capable of performing. (R. 3334, 55). The ALJ thus concluded that Greene was not disabled. (R. 34).
V. DISCUSSION
Greene argues that the Commissioner’s decision is not supported by
substantial evidence and should be reversed or remanded for two reasons: the ALJ
“failed to develop the record to obtain an accounting of [her] limitations based on
the entire record,” and the ALJ’s RFC findings “would better comport with a
sedentary RFC at best,” in which case she would be considered disabled under the
Medical-Vocational Guidelines.6 (Doc. 97-11). The Commissioner responds that
the ALJ properly considered the medical evidence of record in finding that Greene
could perform a light range of work, and that the ALJ was not required to employ
the Medical-Vocational Guidelines in making his decision. (Doc. 10 at 5-15).

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The Medical-Vocational Guidelines set forth rules that “reflect the major functional and
vocational patterns which are encountered in cases which cannot be evaluated on medical
considerations alone, where an individual with a severe medically determinable physical or
mental impairment(s) is not engaging in substantial gainful activity and the individual’s
impairment(s) prevents the performance of his or her vocationally relevant past work. They also
reflect the analysis of the various vocational factors (i.e., age, education, and work experience) in
combination with the individual’s residual functional capacity ... in evaluating the individual’s
ability to engage in substantial gainful activity other than his or her vocationally relevant past
work. Where the findings of fact made with respect to a particular individual’s vocational factors
and residual functioning capacity coincide with all of the criteria of a particular rule, the rule
directs a conclusion as to whether the individual is or is not disabled.” 20 C.F.R. pt. 404, subpt.
P, app. 2, § 200.00.
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A.

Substantial Evidence Supports the ALJ’s RFC Findings
Greene argues that the ALJ’s RFC findings “are not based on substantial

evidence absent development of the record to obtain an MSO [medical source
opinion] ....”7 (Doc. 9 at 11). She concedes that “there was medical input at the
initial level in the form of a reviewing physician opinion on November 9, 2010,”
but argues that “[t]he ALJ’s RFC findings cannot be based on substantial evidence
for the entire period at issue because the reviewing physician opinion ... was not
based on a complete record including subsequent EMG findings on May 19, 2011
of L5 radiculopathy (R. 570) and further surgery for recurrent periumbilical and
vental hernias on March 21, 2012 (R. 643) further reasonably affecting truncal
movement.” (Doc. 9 at 10). She notes that the ALJ could have obtained a medical
source statement in two ways: by asking for the opinion of a medical expert, or by
ordering a consultative examination. (Id. at 10-11).
The ALJ has a duty to develop the record fully and fairly. Wilson v. Apfel,
179 F.3d 1276, 1278 (11th Cir. 1999). The evidence in the record “must be
complete and detailed enough to allow [the Commissioner] to make a
determination or decision about whether [the claimant] is disabled ....” 20 C.F.R. §
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Although Greene uses the term “medical source opinion” in her memorandum of law, the
more accurate term is “medical source statement.” See SSR 96-5p, 1996 WL 374183, * 4 (July
2, 1996) (“Medical source statements are medical opinions submitted by acceptable medical
sources ... about what an individual can still do despite a severe impairment(s) ....”).
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404.1513(e). However, an ALJ is not required to seek a doctor’s assessment of a
claimant’s RFC; to do so would “confer upon the treating source the authority to
make the determination or decision about whether an individual is under a
disability, and thus would be an abdication of the Commissioner’s statutory
responsibility to determine whether an individual is disabled.” SSR 96–5p, 1996
WL 374183 at *2. Likewise, the ALJ does not have to order a consultative
examination unless the record contains insufficient evidence from which the ALJ
can make an informed decision. See Doughty v. Apfel, 245 F.3d 1274, 1281 (11th
Cir. 2001); 20 C.F.R. § 404.1519a(b) (“We may purchase a consultative
examination to try to resolve an inconsistency in the evidence, or when the
evidence as a whole is insufficient to allow us to make a determination or decision
on your claim.”).
In addition, a medical source statement is different from an ALJ’s
assessment of a claimant’s RFC:
Even though the adjudicator’s RFC assessment may adopt the
opinions in a medical source statement, they are not the same thing: A
medical source statement is evidence that is submitted to [the
Commissioner] by an individual’s medical source reflecting the
source’s opinion based on his or her own knowledge, while an RFC
assessment is the adjudicator’s ultimate finding based on a
consideration of this opinion and all the other evidence in the case
record about what an individual can do despite his or her
impairment(s).
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SSR 96-5p, 1996 WL 374183 at * 4. Although the Social Security regulations
provide that the agency “will request a medical source statement” about what a
claimant can do despite her impairments, “the lack of the medical source
statement” will not make a physician’s report incomplete. 20 C.F.R. §
404.1513(b)(6).
Here, Greene acknowledges that the evidence before the ALJ included a
“reviewing physician opinion” dated November 9, 2010. (Doc. 9 at 10). The
opinion was provided by Dr. Robert Heilpern, a state agency physician who
reviewed Greene’s medical records. (R. 525-32). Dr. Heilpern determined that
Greene could lift and/or carry 20 pounds occasionally and 10 pounds frequently;
stand, walk, and sit about 6 hours in an 8-hour workday with normal breaks; climb
ramps and stairs frequently; never climb ladders, ropes, and scaffolds; and
balance, stoop, kneel, crouch, and crawl frequently. (R. 526-27). The ALJ
afforded “significant weight” to Dr. Heilpern’s opinion and his RFC finding
incorporated the exertional and postural limitations assessed by Dr. Heilpern.8 (R.
26). The ALJ noted that Dr. Heilpern’s opinion was “supported by the claimant’s
broad range of activities of daily living, which included cooking, laundry,
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In fact, although Dr. Heilpern determined that Greene could frequently climb ramps and
stairs and frequently stoop, kneel, crouch, and crawl, the ALJ’s RFC finding limited Greene to
only occasional performance of those acts. (See R. 26). In other words, the limitations in the
ALJ’s RFC finding were more restrictive than those assessed by Dr. Heilpern.
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shopping and driving,” and was “consistent with the other substantial evidence in
the claimant’s case record.” (R. 32). In particular, the ALJ observed that Dr.
Heilpern’s opinion was “corroborated by the physical exam findings of consulting
examiner, Dr. Jariwala, which showed essentially intact physical functioning.” (R.
32, 484-87). Dr. Jariwala, who examined Greene in October 2010, did not see
“any evidence of impairment of the lumbosacral spine or any of the peripheral
joints ....” (R. 486). He noted that Greene’s gait was “normal,” that her “[m]otor
and sensory system as well as [her] deep tendon reflexes [were] intact,” and that
she was “able to walk on her heels and toes” and “squat and arise without
difficulty or assistance.” (Id.)
Greene does not challenge any of Dr. Heilpern’s conclusions (or any of Dr.
Jariwala’s findings), but instead argues that the ALJ erred in giving significant
weight to Dr. Heilpern’s opinion because it was not based on a “complete record.”
(Doc. 9 at 10). Specifically, Greene notes “EMG findings on May 19, 2011 of L5
radiculopathy”9 and “surgery for recurrent periumbilical and vental hernias on
March 21, 2012 ....” (Id.) While Greene is correct that Dr. Heilpern issued his
9

Radiculopathy is “a pinched nerve in the spine. It occurs when surrounding bones,
cartilage, muscle, or tendons deteriorate or are injured. The trauma causes these tissues to
change position so that they exert extra pressure on the nerve roots in the spinal cord.”
http://www.healthline.com/health/radiculopathy#Overview1 (last visited June 30, 2015).

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opinion before these subsequent developments occurred and that the ALJ did not
seek a follow-up medical source statement or order a consultative exam, the ALJ
reviewed the evidence regarding Greene’s radiculopathy and hernias and factored
in both conditions in making his RFC finding. With respect to Greene’s
radiculopathy, the ALJ stated:
In May 2011, the claimant was treated for radiculopathy, which her
provider considered linked to her abdominal pain. Test results
confirmed radiculopathy. ... Notably, despite her various
musculoskeletal complaints, the claimant presented with normal gait
and full range of motion on exam in July 2011. Moreover, an MRI
revealed no indication of any degenerative disc disease. In August
2011, the claimant was treated for radiculopathy, cervicalgia and
myalgias. The undersigned observed that the claimant had mentioned
fibromyalgia to her provider, yet no diagnosis of this condition was
documented. The claimant continued to have active diagnoses of
radiculopathy, cervicalgia and myalgias as of September. Insomnia
was added.
...
... [T]he claimant was documented to suffer from cervicalgia,
myalgias, radiculopathy and insomnia, which merited some work
restrictions. Taking into consideration the claimant’s subjective
complaints and her admitted activities of daily living, the undersigned
found the claimant capable of light work .... In sum, despite the
claimant’s subjective allegations, her underlying objective findings
and her admitted activities of daily living simply did not full[y]
support her allegations of disabling musculoskeletal impairment.
(R. 30-31) (exhibit citations omitted).
With respect to Greene’s hernia surgery, the ALJ noted:
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In March 2012, the claimant’s hernia issues reemerged and it was
indicated that she required another hernia repair. The claimant
underwent another hernia repair in late March and also had colon
lesions removed. As of 2012, the claimant’s provider suspected that
her abdominal pain, post hernia repair, related to her pelvic adhesive
disease. The claimant testified that in June 2012, she had undergone
two hernia repairs in the past several months leading up to her
hearing. Overall, the undersigned recognized that the claimant’s
recurrent hernia issues and pelvic adhesive disease merited some
work restrictions. ... Still, given the claimant’s admitted activities of
daily living indicative of considerable exertional abilities, at least
when motivated, and as the claimant continued to present with
essentially normal physical exam findings throughout the record, the
undersigned considered the claimant capable of light work .... In
sum, while the undersigned found the claimant’s testimony as to her
hernia/abdominal problems genuine, the underlying objective
evidence in combination with the claimant’s admitted activities of
daily living simply did not fully support her allegations.
(R. 31-32) (exhibit citations omitted).
In evaluating whether it is necessary to remand a disability determination
for further consideration by the Commissioner, a reviewing court is “guided by
‘whether the record reveals evidentiary gaps which result in unfairness or clear
prejudice.’ ” Couch v. Astrue, 267 F. App’x 853, 855 (11th Cir. 2008) (quoting
Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (quotations and citations
omitted)). Here, the record reveals no such evidentiary gaps, notwithstanding the
absence of a follow-up medical source statement or consultative examination. It
appears that the ALJ was in possession of all of Greene’s medical records
pertaining to her radiculopathy and her March 2012 hernia surgery, and he
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considered that evidence in the context of the evidence in the record as a whole.
The evidence in the record was “complete and detailed enough” for the ALJ to
make his RFC finding and determine that Greene was not disabled. 20 C.F.R. §
404.1513(e). Substantial evidence supports the ALJ’s decision.
B.

The ALJ’s Findings Comport with a Light Work RFC

As discussed above, the ALJ found that Greene had the RFC to perform
light work, subject to a number of exertional, postural, and environmental
limitations.10 Without referencing any specific evidence, Greene argues in
conclusory fashion that the ALJ’s RFC findings “would better comport with a
sedentary RFC at best,” in which case she would be considered disabled under the
Medical-Vocational Guidelines.11 (Doc. 9 at 7). She asserts that “the effect of
[her] obesity in combination with the severe and non severe impairments of record
would reduce the RFC below the exertional requirements of light [work].” (Doc. 9
at 9).
The court first notes that the ALJ found Greene’s obesity to be a non-severe
impairment. (R. 22). He observed that “the claimant’s obesity has not resulted in

10

Light work involves “lifting no more that 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
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Sedentary work involves “lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a).
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any uncontrolled hypertension or diabetes” and determined that the obesity did not
cause more than “minimal interference with the claimant’s ability to perform
work-related functions.” (R. 22). Significantly, Greene does not challenge the
ALJ’s finding that her obesity is a non-severe impairment. Rather, citing Social
Security Ruling 02-1p, she argues generally that obesity can cause limitations in
all exertional and postural functions and can affect an individual’s ability to
sustain routine movement and work activity.12 (Doc. 9 at 8). As the
Commissioner correctly observes, however, Greene does not show (or even
attempt to show) how “her obesity, or her condition in general, caused limitations
beyond the limitations the ALJ found in assessing [her] with a RFC to do a range
of light work.” (Doc. 10 at 12-13) (emphasis added). In this regard, SSR 02-1p
cautions that the agency “will not make assumptions about the severity or
functional effects of obesity combined with other impairments. Obesity with
another impairment may or may not increase the functional limitations of the other
impairment. We will evaluate each case based on the information in the case
record.” SSR 02-1p, 2002 WL 34686281 at *6. Here, the information in the case
record comports with the ALJ’s finding that Greene could perform light work

12

Social Security Ruling 02-1p “provide[s] guidance on SSA policy concerning the
evaluation of obesity in disability claims ....” SSR 02-1p, 2002 WL 34686281 (Sept. 12, 2002).
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subject to the noted limitations.
Moreover, premised on the testimony of the VE, the ALJ found that
Greene could perform her past relevant work as a convenience store manager as
such work is generally performed. (R. 33). Therefore, the ALJ did not err in
failing to apply the Medical-Vocational Guidelines; the Guidelines apply only
where a claimant is unable to perform “his or her vocationally relevant past work.”
20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(a); see Macia v. Bowen, 829 F.2d
1009, 1012 (11th Cir. 1987). Furthermore, because substantial evidence supports
the ALJ’s finding that Greene had the RFC to perform a limited range of light
work (as opposed to sedentary work), the Guidelines would direct a finding of
“not disabled” even if they applied. See 20 C.F.R. pt. 404, subpt. P, app. 2, §
202.00 Table 2, Rules 202.10-202.12.
VI. CONCLUSION
The Commissioner determined that Greene was not disabled under the
Social Security Act. For the reasons set forth above, the undersigned concludes
that the Commissioner’s decision is due to be AFFIRMED.

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DONE, this the 1st day of July, 2015.

______________________________
JOHN E. OTT
Chief United States Magistrate Judge

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