Gray v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 6/17/2015. (AVC)

FILED
2015 Jun-17 PM 02:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHELLE MCMAHON GRAY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 2:14-cv-0948-JEO

MEMORANDUM OPINION
Plaintiff Michelle McMahon Gray 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 This 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 the disposition of the matter. (Doc. 9). 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 be affirmed.
I. PROCEDURAL HISTORY
Plaintiff filed her application for disability insurance benefits on July 13, 2011,

1

References herein to “Doc. ___” are to the electronic numbers at the top of each
pleading that are assigned by the Clerk of the Court.

alleging that she became disabled beginning July 15, 2010. (R. 28, 132-33).2 Her
application was initially denied. (R. 63-64). On November 29, 2012, following a
hearing, an Administrative Law Judge (“ALJ”) denied Plaintiff’s application for
disability benefits, concluding that she is not disabled under the Social Security Act.
(R. 37). The Appeals Council declined to grant review of the ALJ’s decision. (R. 13). Plaintiff then filed this action for judicial review pursuant to § 205(g) of the Social
Security Act, 42 U.S.C. § 405(g). (Doc. 1).
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is
a narrow one. “Our review of the Commissioner’s decision 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 plaintiff must demonstrate that the decision of the Commissioner is not
supported by substantial evidence. See, e.g., Allen v. Schweiker, 642 F.2d 799 (5th Cir.
1981). “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.

2

References herein to “R. ___” are to the administrative record located at Document 6
(Answer of the Commissioner). The page numbers are located at the lower-right hand corner of
each page.
2

Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and
citations omitted). 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 of the [Commissioner], rather [it] 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. 1982))(internal quotations
and other citations omitted); see also Dyer v. Barnhart, 395 F. 3d 1206, 1210 (11th
Cir. 2005). As noted above, conclusions of law made by the Commissioner are
reviewed de novo. Cornelius, 936 F.2d at 1145. Accordingly, “[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.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show “the inability to engage

in any substantial gainful activity by reason of any medically determinable 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

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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 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

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F. App’x at 524.
IV. DISCUSSION
A. Facts
Plaintiff was 45 years old at the time of the ALJ’s decision. (R. 37, 132). She
did not finish high school, but did obtain a GED. (R. 45, 180). She has previous work
experience as a daycare teacher in 2006 and 2007. (R. 47, 181 & 197).
Plaintiff alleged in her initial disability report that she was disabled and unable
to work due to lupus, arthritis, and right knee issues. (R. 180). At her administrative
hearing, she testified that she did not suffer from lupus, but she was diagnosed with
fibromyalgia due to joint swelling. (R. 48). She also complained of migraine
headaches and general chronic daily pain. (R. 49-50). She further testified that she
has custody of her two grandchildren, ages four and six, and she cares for them with
assistance from her husband and mother. (R. 48, 53-43).
Following Plaintiff’s hearing, the ALJ found that she had the severe
impairments of obesity, migraine headache disorder, polyarthritis multiple sites, mild
osteoarthritis of the right knee with pain, status post fracture of the right thumb, and
a history of sinusitis. (R. 31). Additionally, he found that she had the non-severe
symptom of fatigue, which was not an impairment. (Id.) He further found that
Plaintiff had “engaged in a form of substantial gainful activity” since her alleged onset

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date. (R. 30). Specifically, he found that she “has performed the job of child sitter for
her own [grand]children on a regular basis.” (Id.) He also noted, “The job of child
sitter is a very time-consuming and a very difficult job, even for a totally normal
healthy caregiver, and one that requires substantial and significant physical and mental
abilities and activities.” (Id.) He further found that she performed the activity “on a
virtual 24 hour a day, 7 day[s] a week basis,” which is in excess of the typical “8
hours a day 5 days a week.” (R. 31). Accordingly, he concluded, “She has performed
and is performing a form of substantial gainful activity, to wit the job of a child
sitter... This job ... constitutes a form of substantial gainful activity whether or not a
‘profit’ to her is considered to be realized.” (Id.)
After reviewing the foregoing, the ALJ found that Plaintiff retained the residual
functional capacity (RFC) to perform the full range of light work. (R. 31-32). He also
noted, “The record indicates that [Plaintiff] has performed the job of child sitter for
her own [grand]children on a regular sustained basis.” (R. 32). He also assessed the
effect obesity had upon her “ability to perform routine movement and necessary
physical activity within the work environment.” (Id.) He concluded that it was not
a disabling condition, but was due to be taken into consideration. (R.34). The ALJ
also considered her various medical records. Included in those items were treatment
records of Dr. Barry McCleney, who treated Plaintiff, inter alia, for sinusitis and right

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knee pain in 2007, a fracture to her thumb in 2008, migraine headaches in 2010, and
polyarthritis in 2009 and 2011. (R. 33, 236-53). Her right knee and chest x-rays were
negative during this period, and she was diagnosed with polyarthritis of multiple sites
and fatigue.

(R. 33, 237, 240, 251-52).

The ALJ also considered the 2011

consultative report of Dr. Hasmukh Jariwala, who examined Plaintiff’s physical
limitations. Dr. Jariwala found no swelling, no limitation of motion, and no deformity
of the joints. (R. 33, 255-58). Her right knee x-ray revealed mild osteoarthritis. Dr.
Jariwala opined that she suffered from minimal to mild impairment of her right knee.
(R. 257). The ALJ also considered the evaluation of Dr. Brent Ponce concerning
Plaintiff’s right knee pain. Dr. Ponce found that while she had tenderness in the knee,
but there was no evidence of instability and no malalignment. (R. 260). Finally, the
ALJ reviewed Plaintiff’s medical records and her hearing testimony concerning her
migraine headaches. (R. 34). He concluded that her headaches were severe, but not
a disabling impairment. He also found that despite her limitations, she was still able
to care for her grandchildren on a full-time basis and she could perform a full range
of light work. (R. 31-35).
Premised on the foregoing, the ALJ found that Plaintiff was able to perform her
past relevant work as a daycare worker. (R. 36). The vocational expert (VE) testified
that Plaintiff could perform as a daycare worker as the job was “actually and generally

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performed.” (Id.) The VE also noted that “whether or not the result of a form of
necessity, [Plaintiff] basically continues to perform this job in her home for her
grandchildren.” (Id.) The ALJ also found, based on Plaintiff’s age, education, work
experience, and RFC, that she could perform other jobs available in the national
economy, including inspector/hand packager, small products assembler, and
housekeeper/cleaner. (R. 36-37). He concluded that Plaintiff was not disabled during
the relevant period. (R. 37).
B. Plaintiff’s Claims
Plaintiff advances two claims for relief. First, she argues that the ALJ erred in
finding that caring for her grandchildren in her home constitutes a form of substantial
gainful activity. (Doc. 10 at 6). Second, she argues that the ALJ’s findings are not
based on substantial evidence. (Id. at 9). The Commissioner disagrees. (Doc. 12 at
6). Each matter will be addressed below.
1. Care for Her Grandchildren
Plaintiff initially asserts that the ALJ erroneously determined at step one of the
sequential analysis that she was engaged in “substantial gainful activity” (SGA) due
to the fact that she was caring for her grandchildren on a regular sustained basis. She
supports her contention by noting that the ALJ erroneously applied the SGA
regulations. (Doc. 10 at 6-8 (citing 20 C.F.R. §§ 404.1571, et seq.)). She also asserts

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that she “was not performing ‘work’ in the competitive sense for pay” and “she was
certainly not doing anything illegal....” (Id. at 6). She then notes that the ALJ
incorrectly referenced 20 C.F.R. § 404.15723 in concluding that her caring for her
grandchildren constituted SGA whether or not a profit is realized, because she was not
working as an employee and she was not self employed. (Id. at 6-7). Lastly, Plaintiff
states that to the extent it may be argued that the ALJ’s error may have been harmless
because the ALJ continued the sequential analysis, “it was not harmless from the
standpoint of the tenor of the remaining findings.” (Id. at 8). The Commissioner
retorts that “the ALJ’s step one determination is immaterial because the ALJ did not

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Section 404.1572 provides:

What we mean by substantial gainful activity.
Substantial gainful activity is work activity that is both substantial and gainful:
(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 (bold in original).
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conclude his findings with the [SGA] analysis, but proceeded through the rest of the
sequential evaluation process.” (Doc. 12 at 7).
It is undisputed that the ALJ determined at step one that Plaintiff had engaged
in SGA. It is also undisputed that the ALJ continued with the sequential evaluation
steps. The issue is whether his continuation of the process corrected the arguably
erroneous determination in step one. Plaintiff says it did not, while the Commissioner
argues it did.
As noted above, the ALJ found at step two that Plaintiff had multiple severe
impairments, including obesity, migraine headache disorder, polyarthritis at multiple
sites, mild osteoarthritis of the right knee with pain, status post fracture of the right
thumb, and a history of sinusitis. (R. 31). At step three, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that meets or medically
exceeds the severity of one of the listed impairments. (R. at 31). He then determined
Plaintiff’s RFC to perform a full range of light work premised on the entire record.
(Id.) At step four, he determined that Plaintiff could perform her past relevant work
as a day care worker. (R. 36). At step five, he determined that Plaintiff was also
capable of performing other jobs existing in significant numbers in the national
economy. (Id.)
The ALJ’s decision in this case to deny benefits was premised on his finding

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that Plaintiff had the RFC to perform “the full range of light work, considering
[Plaintiff’s] age, education, and work experience.” (R. 37). That decision is not
premised on an erroneous application of the SGA regulations in determining whether
she could perform her past relevant work as a daycare worker at step four in the
process. To the contrary, the ALJ noted that she had worked as a preschool worker
from September 2006 until September 2007 (R. 33)4 and that she “essentially
continues to perform childcare” full-time with her grandchildren (R. 34). The ALJ
also noted, “The vocational expert testified that [daycare worker] was the past relevant
work for [Plaintiff]. Additionally, in comparing [Plaintiff’s] residual functional
capacity with the physical and mental demands of this work, the undersigned [ALJ]
finds that [Plaintiff ] is able to perform it as actually and generally performed.” (R.
36). He further noted, “Additionally, whether or not the result of a form of necessity,
[Plaintiff] basically continues to perform this job in her home for her grandchildren.”
(Id.) These findings support the determination that Plaintiff was not disabled and not
entitled to any benefits. Accordingly, even if the ALJ erred in reaching the conclusion
he reached at step one, the error is harmless. See Diorio v. Heckler, 721 F.2d 726, 728
(11th Cir. 1983) (applying the harmless error doctrine in a Social Security appeal after
finding that an administrative law judge made “erroneous statements of fact”);

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This finding is not disputed. (See also R. 47-48, 57-58, 162-67, 181 & 197-98).
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Ostborg v. Comm’r Soc. Sec., — F. App’x ––, 2015 WL 3429099, *10 (11th Cir. May
29, 2015) (“The ALJ’s discussion of other inconsistent statements..., even if
erroneous, was harmless, since substantial evidence supports the ALJ’s credibility
finding”); Hunter v. Comm’r Soc. Sec., — F. App’x —, 2015 WL 1843050, *3 (11th
Cir. April 23, 2015) (“To the extent that an administrative law judge commits an error,
the error is harmless if it did not affect the judge’s ultimate determination.”); Himes
v. Comm’r of Soc. Sec., 585 F. App’x 758, 763 (11th Cir. 2014) (“Even assuming that
the ALJ erred at step two, any error is harmless because the ALJ’s conclusion that
Himes had any ‘severe’ impairments advanced his claim to step three, where the ALJ
had to consider all of Himes’s impairments whether severe or not.”).
2.

Insufficiency of the Evidence

Plaintiff next argues that the ALJ’s decision was not based on a complete record
and that he failed to adequately consider her obesity. (Doc. 10 at 9). The court will
examine these arguments in reverse order.
a.

Obesity

Specifically, Plaintiff argues that, while the ALJ determined obesity to be a
severe impairment,” he “failed to adequately factor this condition into his [RFC]
findings in combination with the other severe and non-severe impairments as required

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under SSR 02-1p[5] and under the regulations and rulings including SSR 96-8p[6]
requiring a function by function analysis...”

(Id.)

The Commissioner argues

otherwise. (Doc. 12 at 9).
The Eleventh Circuit Court of Appeals has found that an ALJ properly
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The relevant portions state:

“An assessment should also be made of the effect obesity has upon the
individual’s ability to perform routine movement and necessary physical activity
within the work environment ... As explained in SSR 96–8p ... our RFC
assessments must consider an individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and continuing
basis....
....
The combined effects of obesity with other impairments may be greater
than might be expected without obesity....
....
... When we identify obesity as a medically determinable impairment ...,
we will consider any functional limitations resulting from the obesity in the RFC
assessment, in addition to any limitations resulting from any other physical or
mental impairments we identify.”
67 Fed. Reg. 57859, 57862–63 (Sept. 12, 2002). See also Lewis v. Comm’r of Soc. Sec., 487 F.
App’x 481, 483 (11th Cir. 2012) (“ ‘[T]he ALJ is required to consider obesity in the analysis of a
claimant’s overall medical condition. See SSR 02–1p. Social Security Regulation 02–1p
provides that obesity shall be considered when determining if (1) a claimant has a medically
determinable impairment, (2) the impairment is severe, (3) the impairment meets or equals the
requirements of a listed impairment, and (4) the impairment bars claimant ‘from doing past
relevant work and other work that exists in significant numbers in the national economy.’ SSR
02–1p.”).
6

SSR 96-8p is located at 1996 WL 374184.
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considers a plaintiff’s obesity when he (1) considered the diagnosis, (2) specifically
referenced SSR 02-1p in his ruling, and (3) determined that the obesity was a severe
impairment. Castel v. Comm’r of Soc. Sec., 355 F. App’x 260 (11th Cir. 2009). In
this instance, the ALJ did that and more.
First, the ALJ recognized the obesity diagnosis in the medical evidence and
found it was one of Plaintiff’s severe impairments. (R. 31). Second, the ALJ in
determining the RFC stated, “Assessment is made of the effect obesity has upon the
individual’s ability to perform routine movement and necessary physical activity
within the work environment.” (R. 32). He specifically referenced SSR 02-1p, stating
that “someone with obesity and arthritis affecting a weight-bearing joint may have
more pain and limitation than might be expected from the arthritis alone....” (Id.)
Third, the ALJ noted that while “[Plaintiff] weighs 250 pounds and is five feet four
inches tall,” her obesity is not a “disabling condition, but is taken into consideration
in her [RFC].” (R. 34). The ALJ also noted the finding of Plaintiff’s orthopaedic
surgeon that the “single greatest improvement she could make [with regard to her right
knee pain] would be to lose weight.” (Id.) The ALJ concluded, stating that the RFC
assessment of Plaintiff was “supported by the records of evidence.”7 (R. 35). In sum,
the court finds that the ALJ more than adequately considered Plaintiff’s obesity.
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In yet another part of the opinion, the ALJ also stated, “Obesity has been fully
considered along with [Plaintiff’s] combination of other impairments.” (R. 32).
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b.

Completeness of the Record

In a brief, passing comment, Plaintiff asserts the ALJ’s decision was not based
on a complete record, lacking significant treating records from a rheumatologist (R.
268) that were submitted prior to the decision. (Doc. 10 at 9). The records Plaintiff
is referencing are the notes of Dr. Henry D. Townsend. (Id. at 5). The Commissioner
acknowledges that the ALJ did not specifically reference or discuss these records, but
she argues that was not required in this case where the ALJ noted that he considered
the entire record in making his determination. (Doc. 12 at 11).
Plaintiff was seen by Dr. Townsend for follow-up visits on August 23, 2011 and
September 6, 2011.

Her chief complaint was listed as “+ANA” (Antinuclear

antibodies) and “Joint Pains.” (R. 269, 271). She reported a history of “variable of
arthralgias” (joint pain) over the last thirty years, difuse myofascial pain, intermittent
right knee pain, moderate to severe intermittent left chest wall pain over the last two
months, and “significant generalized fatigue and frequent trouble with sleeping.” (R.
269 & 271). She weighed approximately 263 pounds and was about 5’ 5” tall with
a body mass index (BMI) of 44. It was also noted that “[s]he appears to have
Fibromyalgia.”

(R. 273).

Townsend’s overall impression, however, was that

“inflammatory CTD is unlikely but further w/u is warranted.” (Id.) Lastly, the notes
indicate that Plaintiff had normal range of motion, normal strength, no swelling, no

15

deformity, and a normal gait. (R. 270-72).
While it does appear that the ALJ did not specifically address this evidence,
there is no requirement that he discuss every record or note. Dyer, 395 F.3d at 1211
(“there is no rigid requirement that the ALJ specifically refer to every piece of
evidence in his decision, so long as the ALJ’s decision ... is not a broad rejection
which is ‘not enough to enable [the district court or this Court] to conclude that [the
ALJ] considered her medical condition as a whole’ ”).8 This is particularly true

8

In Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981), the Eleventh Circuit
concluded that
the ALJ had failed to discharge his special duty because he did not clearly
indicate the weight he accorded to the various testimony considered. Id. The
court explained that the ALJ’s decision did not allow proper judicial review.
The decision states only that the ALJ “has carefully considered all
of the testimony ... and exhibits ... and has given weight to each as
he feels should be properly accorded to it.” This statement tells us
nothing whatsoever—it goes without saying that the ALJ gave the
testimony the weight he believed should be accorded to it. What is
required is that the ALJ state specifically the weight accorded to
each item of evidence and why he reached that decision. In the
absence of such a statement, it is impossible for a reviewing court
to determine whether the ultimate decision on the merits of the
claim is rational and supported by substantial evidence.
Id.
In Cowart, the court was faced with an ALJ’s decision that conveyed
“nothing whatsoever” as to what evidence the ALJ relied on in reaching his
decision. Cases decided after Cowart have recognized that if the ALJ’s decision
contains sufficient discussion of the evidence to allow meaningful judicial review,
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where the ALJ specifically states that he considered all the record evidence. (See R.
35 (“All records of evidence have been considered in making a [RFC] assessment that
[Plaintiff] is capable of performing”)). Additionally, nothing about Dr. Townsend’s
notes or findings is significant. They do not support greater limitations than those
accommodated in the RFC finding limiting Plaintiff to a full range of light work. (See
R. 31). Plaintiff has not demonstrated how the records challenge the findings of the
ALJ or how they warrant further consideration. In sum, the substantial evidence in
the record supports the ALJ’s decision.
V. CONCLUSION
The Commissioner determined that Plaintiff was not disabled under the Social
Security Act.

For the reasons set forth above, the undersigned finds that the

Commissioner’s decision is due to be affirmed. There is no basis to support a remand
of this case to the Commissioner.

the ALJ’s decision need not refer to every piece of evidence. For example, in
Dyer v. Barnhart, the court observed that “there is no rigid requirement that the
ALJ specifically refer to every piece of evidence in his decision, so long as the
ALJ's decision ... is not a broad rejection which is ‘not enough to enable [the
district court or this Court] to conclude that [the ALJ] considered her medical
condition as a whole.’ ” 395 F.3d 1206, 1211 (11th Cir. 2005) (alterations in
original) (quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)).
Smith v. Colvin, 2014 WL 4187668, *5 (N.D. Ala. August 15, 2014).
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DATED, this the 17th day of June, 2015.

__________________________
JOHN E. OTT
Chief United States Magistrate Judge

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