Cunningham v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 2/23/16. (SMH)

FILED
2016 Feb-23 AM 10:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TERONA FAYE CUNNINGHAM,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. 2:14-CV-1927-SLB

MEMORANDUM OPINION
Plaintiff Terona Faye Cunningham brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the Commissioner of Social Security’s final decision denying her
application for a period of disability and disability insurance benefits [DIB]. Upon review
of the record and the relevant law, the court is of the opinion that the Commissioner’s
decision is due to be affirmed.
I. PROCEDURAL HISTORY
On August 15, 2011, Ms. Cunningham protectively filed a Title II application for a
period of disability and DIB, alleging that she became unable to work on February 1, 2011.
(Doc. 7-3 at R.21; doc. 7-6 at R.141.)1 She reported that was unable to work because of

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Reference to a document number, [“Doc.”], refers to the number assigned to each
document as it is filed in the court’s record. Reference to a page numbers in the
Commissioner’s record, [“R.”], refers to the page number assigned to the record by the
Commissioner.

“bursitis in hips causing pain in [her] back and legs pain,” “tendini[tis] in [her] hands and
arms,” and “arthritis/gout in feet.” (Doc. 7-7 at R.171.)
The Social Security Administration denied her application initially, and Ms.
Cunningham requested a hearing before an Administrative Law Judge [ALJ]. (Doc. 7-4 at
R.74; doc. 7-5 at R.91.) The hearing before the ALJ was held on April 16, 2013. (Doc. 7-3
at R.21.)
After the hearing, the ALJ issued an unfavorable decision on May 10, 2013. (Doc.
7-3 at 21-29.) Ms. Cunningham asked the Appeals Council to review the ALJ’s decision.
(Id. at R.15.) The Appeals Council denied Ms. Cunningham’s request for review of the ALJ
decision, stating that it “found no reason under [its] rules to review the [ALJ’s] decision.”
(Id. at 1.) Therefore, “the [ALJ’s] decision is the final decision of the Commissioner of
Social Security in [Ms. Cunningham’s] case.” (Id.)
Ms. Cunningham filed an appeal in this court on October 9, 2014. (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 court
gives deference to factual findings and reviews questions of law de novo. Cornelius v.

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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.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 v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990); 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. Commissioner of
Social 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. “No . . . 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 DIB. See 20 C.F.R. § 404.1520; see also
Bowen v. City of New York, 476 U.S. 467, 470 (1986). “[A]n individual shall be considered
to be disabled for purposes of [determining eligibility for DIB benefits] if he is unable to

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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 twelve months.” 42 U.S.C. §
1382c(a)(3)(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 employment.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The
regulations define “substantial gainful activity” as “work activity that is both substantial and
gainful.”2 20 C.F.R. § 404.1572. If the claimant is working and that work is substantial
gainful activity, the Commissioner will find that the claimant is not disabled, regardless of
the claimant’s medical condition or her age, education, and work experience. 20 C.F.R. §

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The regulation provides:

(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(a)-(c).
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404.1520(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. Commissioner of
Social Sec., 457 Fed. Appx. 862, 863 (11th Cir. 2012).3
The ALJ found that Ms. Cunningham had not engaged in substantial gainful activity
during the period from her alleged onset date of February 1, 2011, through her date last
insured of December 31, 2011. (Doc. 7-3 at R.23.)
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 her physical or mental ability to do basic work activities.
20 C.F.R. § 404.1520(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. § 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, [the Commissioner] will find that you do not have a severe impairment
and are, therefore, not disabled.” 20 C.F.R. § 404.1520(c). “An impairment can be

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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).
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considered as not severe only if it 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.” Brady v. Heckler, 724 F.2d 914, 920
(11th Cir. 1984); see also 20 C.F.R. § 404.1521(a). A claimant may be found disabled based
on a combination of impairments even though none of the individual impairments alone are
disabling. Walker v. Brown, 826 F.2d 996, 1001 (11th Cir. 1985); see also 20 C.F.R. §
404.1523. A claimant has the burden to show that she has a severe impairment or
combination of impairments. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Ms. Cunningham had severe impairments of “obesity, gout, mild
lumbar degenerative disc disease, trochanteric bursitis, and iliotibial band tendinitis.” (Doc.
7-3 at R.23). Also, the ALJ found Ms. Cunningham had non-severe impairments of
hypertension and migraine headaches; lupus was “not a severe medically determinable
impairment during the period at issue,” and “chronic pain syndrome [was] not a medically
determinable impairment,” but it was an apparent symptom of her severe impairments. (Id.
at R.23-24).
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets the durational requirement and whether it is
equivalent to any one of the listed impairments, which are impairments that are so severe as
to prevent an individual with the described impairment from performing substantial gainful

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activity. 20 C.F.R. § 404.1520(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). 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 Ms. Cunningham “did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1.” (Doc. 7-3 at R.24.)
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). At step four, the Commissioner “will first compare [her]
assessment of [the claimant’s] residual functional capacity [RFC] with the physical and
mental demands of [her] past relevant work. 20 C.F.R. § 404.1560(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).
If the claimant is capable of performing her past relevant work, the Commissioner will find
she is not disabled. 20 C.F.R. § 404.1520(e). The claimant bears the burden of establishing

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that her impairment prevents her from performing past work. Reynolds-Buckley, 457 Fed.
Appx. at 863.
The ALJ found:
[T]hrough the date last insured, the claimant had the residual functional
capacity to perform light work as defined in 20 C.F.R. 404.1567(b), except the
claimant is limited to standing/walking four hours in an eight-hour workday
and sitting four hours in an eight-hour workday. She can occasionally balance,
stoop, kneel, crouch, crawl, and climb ramps and stairs, but [she can] never
climb ladders, ropes, or scaffolds. Additionally, she must avoid concentrated
exposure to vibration.
(Doc. 7-3 at R.24.) Based on his finding regarding her RFC and the testimony of a
vocational expert [VE], the ALJ found that Ms. Cunningham was unable to perform her past
relevant work as a warehouse worker-store laborer. (Id. at R.27-28.)
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 Fed. Appx. at 863; see also 20 C.F.R. §
404.1520(c)(1). The regulations provide:
(1) 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, as appropriate in your case. . . . 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).
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(2) In order to support a finding that you are not disabled at this fifth step of
the sequential evaluation process, we are responsible for providing evidence
that demonstrates that other work exists in significant numbers in the national
economy that you can do, given your residual functional capacity and
vocational factors. We are not responsible for providing additional evidence
about your residual functional capacity because we will use the same residual
functional capacity assessment that we used to determine if you can do your
past relevant work.
Id. (c)(1)-(2).

If the claimant is not capable of performing such other work, the

Commissioner must find the claimant is disabled. 20 C.F.R. § 404.1520(g).
The ALJ found that Ms. Cunningham, who was born in 1962, was a “younger
individual” on the date last insured, and that she had at least a high school education and
could communicate in English. (Doc. 7-3 at R.28.) The ALJ consulted a VE; the VE
testified that an individual with Ms. Cunningham’s RFC and vocational factors could
perform the jobs of cashier, sales attendant, and marker, and these jobs existed in significant
numbers in the national economy. (Id. at R.28-29.) Based on this testimony, the ALJ found
Ms. Cunningham could perform other work. (Id. at 29.)
Therefore, the ALJ found that Ms. Cunningham had not been under a disability at any
time from February 1, 2011, the alleged onset date, through December 31, 2011, the date last
insured. (Id.)
B. ISSUES ON APPEAL
Ms. Cunningham states her issue on appeal as follows:
Whether the Final Decision of the Commissioner of the Social Security
Administration denying benefits to plaintiff is supported by substantial
evidence and whether improper legal standards were applied –
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specifically, the ALJ erred in failing to develop the record to obtain a medical
opinion; and the record including the ALJ’s own RFC findings support a
finding of disabled under the MVR.
(Doc. 1 at 1.) For the reasons set forth below, the court finds that the decision to deny Ms.
Cunningham’s claim for a period of disability and DIB will be affirmed.
1. Medical Vocational Rules – “The Grids”
Ms. Cunningham contends that “The record including the ALJ’s own RFC findings
support a finding of [‘]disabled[‘] under the medical vocational rules.” (Doc. 11 at 8.) She
argues:
The ALJ recognized the RFC did not represent a full range of light
work (R. 28). The four hour sitting and stand/walk restrictions do not comport
with the exertional requirements of light work, requiring six hours
stand/walking, or for that matter even with sedentary work requiring six hours
sitting pursuant to 20 C.F.R. 404.1567 and SSR 83-10.
With further reduction of postural functioning to occasional (R. 24), the
ALJ’s RFC findings would better comport with sedentary work.
Limited to even the full range of sedentary work, for an individual of
closely approaching advanced age, with a high school education, unable to
perform unskilled past work the “grid” rules, namely Rule 201.14 would have
applied non mechanically at the [date last insured].
Pursuant to 20 C.F.R. 404.1563(b), SSA “will not apply the age
categories mechanically … if you are within a few days to a few months of
reaching an older category …”
Appeals Council Interpretation II-5-302 (effective Mar. 16, 1979)
stating that “[g]enerally, establishing an onset date up to six months prior to
attainment of the specified age would be reasonable.”

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(Id. at 8-9.) As the court understands this argument, Ms. Cunningham contends the ALJ
erred in not applying the grid rule for individuals of closely-approaching advanced age who
are limited to sedentary work.
With regard to the grids, the Supreme Court held:
Prior to 1978, the Secretary relied on vocational experts to establish the
existence of suitable jobs in the national economy. After a claimant’s
limitations and abilities had been determined at a hearing, a vocational expert
ordinarily would testify whether work existed that the claimant could perform.
Although this testimony often was based on standardized guides, see 43 Fed.
Reg. 9286 (1978), vocational experts frequently were criticized for their
inconsistent treatment of similarly situated claimants. See Santise v.
Schweiker, 676 F.2d 925, 930 (CA3 1982); J. Mashaw et al., Social Security
Hearings and Appeals 78-79 (1978). To improve both the uniformity and
efficiency of this determination, the Secretary promulgated medical-vocational
guidelines as part of the 1978 regulations. See 20 C.F.R. pt. 404, subpt. P,
app. 2 (1982).
These guidelines relieve the Secretary of the need to rely on vocational
experts by establishing through rulemaking the types and numbers of jobs that
exist in the national economy. They consist of a matrix of the four factors
identified by Congress – physical ability, age, education, and work experience
– and set forth rules that identify whether jobs requiring specific combinations
of these factors exist in significant numbers in the national economy. Where
a claimant’s qualifications correspond to the job requirements identified by a
rule, [footnote] the guidelines direct a conclusion as to whether work exists
that the claimant could perform. If such work exists, the claimant is not
considered disabled.
Footnote: The regulations recognize that the rules only describe “major
functional and vocational patterns.” 20 C.F.R. pt. 404, subpt. P, app.
2, § 200.00(a). If an individual’s capabilities are not described
accurately by a rule, the regulations make clear that the individual’s
particular limitations must be considered. See app. 2, §§ 200.00(a), (d).
Additionally, the regulations declare that the Administrative Law Judge
will not apply the age categories “mechanically in a borderline
situation,” 20 C.F.R. § 404.1563(a), and recognize that some claimants
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may possess limitations that are not factored into the guidelines, see
app. 2, § 200.00(e). Thus, the regulations provide that the rules will be
applied only when they describe a claimant’s abilities and limitations
accurately.
Heckler v. Campbell, 461 U.S. 458, 461-62 and n.5 (1983)(other footnotes omitted).
For the reasons set forth below, the court finds use of the grids was not proper in this
case and the ALJ’s determinations, that Ms. Cunningham was able to perform a limited range
of light work and that she was a younger individual on the date last insured, are due to be
affirmed.
a. Exertional Limits
As set forth above, Ms. Cunningham contends that the RFC, as determined by the
ALJ, “better comport[s] with sedentary work.” (Doc. 11 at 8.) The court disagrees.
The regulations provide:
. . . In making disability determinations under this subpart, [the
Commissioner] use[s] the following definitions:
(a) Sedentary work. 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. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
(b) Light work. Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you must
have the ability to do substantially all of these activities. . . .
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20 C.F.R. § 404.1567(a)-(b).
The ALJ stated, “I conclude that the claimant can at least perform work activities at
the light exertional level based on her relatively normal upper and lower extremity strength
and range of motion.” (Doc. 7-3 at R.26.) He found Ms. Cunningham –
should only stand/walk for four hours in an eight-hour workday and sit four
hours in an eight-hour workday in order to avoid exacerbation of her hip and
back pain. Any changes of position are accommodated by normal breaks and
appropriate alternation during the workday. Additionally, the claimant should
avoid concentrated exposure to vibration because vibration can exacerbate the
claimant’s hip and gouty arthritis. Moreover, due to her impairments, she
should only perform occasional balancing, stooping, kneeling, crouching,
crawling, and climbing ramps and stairs.
(Id. at R.26.) These findings are supported by substantial evidence. Contrary to Ms.
Cunningham’s assertion, the court does not find that these limitations “better comport” with
work at a sedentary level; rather given the lack of limitation on her ability to lift and to carry,
the court finds that the exertional limitation falls somewhere between light and sedentary.
A Commissioner’s Ruling provides:
2. If the exertional level falls between two [grids] rules which direct opposite
conclusions, i.e., “Not disabled” at the higher exertional level and “Disabled”
at the lower exertional level, consider as follows:
a. An exertional capacity that is only slightly reduced in terms of the
regulatory criteria could indicate a sufficient remaining occupational base to
satisfy the minimal requirements for a finding of “Not disabled.”
b. On the other hand, if the exertional capacity is significantly reduced
in terms of the regulatory definition, it could indicate little more than the
occupational base for the lower rule and could justify a finding of “Disabled.”

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c. In situations where the rules would direct different conclusions, and
the individual’s exertional limitations are somewhere “in the middle” in terms
of the regulatory criteria for exertional ranges of work, more difficult
judgments are involved as to the sufficiency of the remaining occupational
base to support a conclusion as to disability. Accordingly, VS [vocational
specialist] assistance is advisable for these types of cases.
SSR 83-12, 1983 WL 31253, *2-3.
In this case, because the RFC, as determined by the ALJ, fell somewhere between
light and sedentary work, the use of a VE or VS to determine the occupational base was
required. Use of the Medical-Vocational Rules based on Ms. Cunningham’s ability to
perform a full range of sedentary work would not have been appropriate.
b. Age as a Vocational Factor
Ms. Cunningham contends that the ALJ should have considered she was “closely
approaching advanced age” because the date last insured was within a few months of her
fiftieth birthday. (Doc. 11 at 4, 9.) In this Circuit, a claimant arguing to be treated at a
different level than her chronological age, “must proffer evidence tending to establish that
fact.” Miller v. Comm’r of Soc. Sec., 241 Fed. Appx. 631, 635 36 (11th Cir. 2007)(citing
Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984). Simply arguing that she should be
treated differently because of her imminent birthday is insufficient. Id. (citing Patterson v.
Bowen, 799 F.2d 1455, 1458-59 (11th Cir. 1986)). Nothing in Ms. Cunningham’s brief
“suggests that [her] ability to adapt to new work environments was less than the level
established under the grids for persons [her] age.” Id.

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Therefore, the court finds no error in the ALJ’s determination that Ms. Cunningham
was a younger individual on the date last insured.
c. Vocational Expert
The ALJ’s determination that Ms. Cunningham was not disabled was based in part of
the testimony of a VE. The VE testified as follows:
Q. So Dr. Green, I’d ask you to consider the following hypothetical.
Assume I had a younger individual with a high school education and the past
relevant work experience we’ve just identified. And further assume that
individual was limited to the full range of light work; however they should
never climb ladders, ropes or scaffolds; and the remaining posturals, to include
balance, are occasional. Further assume they should avoid concentrated
exposure to vibration. Would such a hypothetical person be able to do any of
the past relevant work?
A. No.
Q. Would there be other jobs for such a person?
A. There are light and unskilled jobs consistent with the hypothetical.
Cashier, light, SVP: 2, the DOT code is 211.462-010. 16,000 jobs in Alabama;
800,000 nationally. There are sales attendant jobs that are light and unskilled,
SVP: 2. [DOT code] 299.677-010. 2,500 jobs in Alabama; 190,000
nationally. And there are assembler jobs, such as electrical assembler. [DOT
code] 729.687-010. There are 1,500 jobs in Alabama; and 60,000 nationally.
All of those are light, SVP: 2.
Q. And if I assume as a second hypothetical the exact same
hypothetical individual, the same past relevant work and high school
education, but I assume the maximum they can stand and walk in a given day
is four hours. They can sit for the remaining four hours of the day. They can
lift and carry at the light rate. So it’s a reduced range of light in that they’re
limited to four and four for standing and walking and sitting. Does that change
your answer with regards to those jobs?
A. It does.
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Q. Everything else remains the same. So with regards to the jobs you
just identified, do they remain?
A. I would give reduced numbers for the cashier job. 1,500 jobs in
Alabama; 40,000 nationally. And those are cashier jobs in confined settings
where a person can actually perform them standing or sitting. There, and I
would reduce the sales attendant job to 800 jobs in Alabama; 60,000
nationally. And those are jobs at kiosk and places where a person could
occasionally, could occasionally sit. And I would, I would say that there are
marker jobs [DOT code 209.587-034] that are light, SVP: 2, that enable a
person to sit part of the day. And this is a reduced number, less than 25
percent. That would leave 1,000 in Alabama; 70,000 nationally.
(Doc. 7-3 at R.61-62.) The ALJ relied on this testimony to determine that there were a
significant number of jobs that Ms. Cunningham could still perform despite her limitations.
The court agrees with the Commissioner in that the ALJ properly relied on the grids
as only a framework for decision-making and on the VE’s testimony to find at step five that
Ms. Cunningham was not disabled because a person with her same characteristics could
perform a significant number of jobs in the national economy, and substantial evidence
supports that finding.
Therefore, the court will affirm the decision of the Commissioner on this ground.
2. Medical Expert
Ms. Cunningham contends, “The sole issue before the ALJ was whether disability
could be established prior to the expiry of claimant’s DLI [date last insured] on December
31, 2011. The ALJ could have utilized a medical expert (ME) pursuant to SSR 83-20 in this
endeavor.” (Doc. 1 at 5 [emphasis added].) The court notes that the decision of the
Commissioner will not be reversed simply because a claimant contends the ALJ could have
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done something different or something more. In order to reverse the Commissioner’s
decision, this court must find either (1) the decision is not supported by substantial evidence
or (2) the ALJ applied an incorrect legal standard. See Wilson, 284 F.3d at 1221. In this
case, the court finds no reason to reverse the Commissioner’s decision.
The ALJ found that Ms. Cunningham was not disabled prior to the date last insured.
In making this finding, the ALJ considered Ms. Cunningham’s medical record for the
relevant period. These records showed limited treatment and good results from medication
and other treatment. (Doc. 7-3 at R.25-26; see also doc. 7-8 at R.215, R.234-37, R.245-47,
R.251, R.254-55.) The ALJ also considered Ms. Cunningham’s statements and testimony
regarding her limitations during this period. He found she “provided extreme limitations of
her activities of daily living and functional abilities,” – including the fact that she asserted
“her disabled husband, who is in considerable pain,” did all the household chores – that were
not supported by the record. (Doc. 7-3 at 26 [emphasis deleted].) Therefore, the ALJ found
“the credibility of the claimant’s allegations [of disabling pain was] substantially weakened
through exaggeration and inconsistency.” (Id. at R.27.) These findings are supported by
substantial evidence.
The ALJ found that Ms. Cunningham retained the ability to perform a limited range
of light work during the period between her alleged onset date and the date last insured. He
presented these limitations and Ms. Cunningham’s vocational factors to the VE, who testified
that an individual with Ms. Cunningham’s RFC and vocational factors could perform the jobs

17

of cashier, sales attendant, and marker. Therefore, the ALJ determined that Ms. Cunningham
was not disabled during the period February 2011 through December 2011.
Contrary to plaintiff’s contention, SSR 83-20 does not, as a matter of law, require the
use of a Medical Expert in this case because the ALJ found that Ms. Cunningham was not
disabled before the date she was last insured. In an unpublished opinion, the Eleventh
Circuit held, “The plain language of SSR 83-20 indicates that it is applicable only after there
has been a finding of disability and it is then necessary to determine when the disability
began.” Caces v. Commissioner of Social Security, 560 Fed. Appx. 936, 939 (2014).
Because the ALJ found that Ms. Cunningham was not disabled between February and
December 2011, and because that finding is supported by substantial evidence, the court
finds the ALJ did not commit legal error by failing to use a Medical Expert to determine an
onset date.
Ms. Cunningham also argues that the ALJ could have used a Medical Expert to show
that certain signs and symptoms were attributable to lupus, which was diagnosed after the
date last insured, and to explain how her obesity caused or contributed to exertional
limitations. (Doc. 11 at 7-8.) No doubt the ALJ could have used a Medical Expert in these
and many other ways; nevertheless, his failure to call upon a Medical Expert in this case was
not an error of law. See Fancher v. Astrue, Case No. CV-11-S-4173-W, 2012 WL 4737136,
*3 (N.D. Ala. Sept. 27, 2012). The ALJ’s decision regarding Ms. Cunningham’s limitations
on her ability to work during the relevant time period – February 2011 to December 2011 –

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is supported by substantial evidence and his failure to utilize a Medical Expert was not an
error of law.
Therefore, the court finds no reason to reverse the decision of the Commissioner on
the basis that the ALJ did not utilize a Medical Expert.
CONCLUSION
For the reasons set forth above, the decision of the Commissioner is due to be
affirmed. An Order affirming the decision of the Commissioner will be entered
contemporaneously with this Memorandum Opinion.
DONE this 23rd day of February, 2016.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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