Parker v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/23/2013. (JLC)

FILED
2013 Sep-23 PM 04:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
STEVEN PARKER,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

)
)
)
)
) Case No.: 4:12-CV-03560-VEH
)
)
)
)
)
)
)

MEMORANDUM OPINION1
Plaintiff Steven Parker (“Mr. Parker”) brings this action under 42 U.S.C.
§ 405(g) (2006), Section 205(g) of the Social Security Act. He seeks review of a final
adverse decision of the Commissioner of the Social Security Administration
(“Commissioner”), who denied his application for application for disability, disability

1

Carolyn W. Colvin was named the Acting Commissioner on February 14, 2013. See
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.”) (last accessed on September 16,
2013). Under 42 U.S.C. § 405(g), “[a]ny action instituted in accordance with this subsection shall
survive notwithstanding any change in the person occupying the office of Commissioner of Social
Security or any vacancy in such office.” Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule
25(d) of the Federal Rules of Civil Procedure, the court has substituted Carolyn W. Colvin for
Michael Astrue in the case caption above and HEREBY DIRECTS the clerk to do the same
party substitution on CM/ECF.

insurance benefits (“DIB”), and Supplemental Security Income (“SSI”).2 Mr. Parker
has timely pursued and exhausted his administrative remedies available before the
Commissioner. The case is thus ripe for review under 42 U.S.C. § 405(g).3
FACTUAL AND PROCEDURAL HISTORY
Mr. Parker was forty-one years old at the time of his alleged amended onset date,
forty-two years old on December 31, 2009, the date he was last insured for DIB, and
forty-three years old on the date of the decision of the Administrative Law Judge
(“ALJ”). (Tr. 22, 33). He claimed he became disabled on December 31, 2004 (Tr.
25), with an alleged amended onset date of December 5, 2008. (Id.) His last period
of work ended on December 5, 2008. (Tr. 27).
On August 8, 2008, Mr. Parker protectively filed a Title II application for a
period of disability and DIB, and also protectively filed a Title XVI application for SSI.
(Tr. 25). In both applications, he alleged disability beginning December 31, 2004. On
January 5, 2009, these claims were initially denied. (Id.). On February 10, 2009, Mr.
Parker filed a written request for hearing. (Id.). He appeared and testified at a hearing
2

In general, the legal standards applied are the same regardless of whether a claimant seeks
DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims.
Therefore, citations in this opinion should be considered to refer to the appropriate parallel
provision as context dictates. The same applies to citations of statutes or regulations found in
quoted court decisions.
3

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
2

held on May 4, 2010. (Id.) Julia A. Russell, Ph.D., vocational expert (“VE”), also
appeared at the hearing. (Id.) Mr. Parker’s representative, Don Bevill, Esq., moved,
on Mr. Parker’s behalf, to amend the alleged onset date to December 5, 2008, and the
ALJ granted this motion. (Id.).
On January 14, 2011, the ALJ issued his opinion concluding Mr. Parker was not
disabled and denying him benefits. (Tr. 22). Mr. Parker timely petitioned the Appeals
Council to review the decision. (Tr. B4B). On August 17, 2012, the Appeals Council
issued a denial of review on his claim. (Tr. 1-7).
Mr. Parker filed a Complaint with this court on October 10, 2012, seeking
review of the Commissioner’s determination. (Doc. 1). On January 22, 2013, the
Commissioner filed an Answer. (Doc. 6). On April 8, 2013, Mr. Parker filed his brief.
(Doc. 9). On May 7, 2013, the Commissioner filed her brief. (Doc. 10). With the
parties having now fully briefed the matter, the court has carefully considered the
record and affirms the Commissioner’s decision.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner is
supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
3

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.
This 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).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a period
of disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.4 The Regulations define “disabled” as “the

4

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
4

inability to do 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 (12)
months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to disability benefits,
a claimant must provide evidence about a “physical or mental impairment” which “must
result from anatomical, physiological, or psychological abnormalities which can be
shown by medically acceptable clinical and laboratory diagnostic techniques.” 20
C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
5

Once the claimant has satisfied steps One and Two, she will automatically
be found disabled if she suffers from a listed impairment. If the claimant
does not have a listed impairment but cannot perform her work, the
burden shifts to the [Commissioner] to show that the claimant can perform
some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
An ALJ may make this determination by posing hypothetical questions to a VE. See
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir.2011); 20 C.F.R. §
404.1520(a)(4)(v). The Commissioner must further show that such work exists in the
national economy in significant numbers. Id. An ALJ may rely solely on the testimony
of a VE in making this determination. Jones v. Apfel, 190 F.3d 1224, 1230 (11th
Cir.1999), cert. denied, 120 S. Ct. 1723 (2000). For the testimony of a VE to
constitute substantial evidence, the ALJ must pose a hypothetical that comprises all of
the claimant’s impairments that significantly affect a claimant’s ability to work. Wilson
v. Barnhart, 284 F.3d at 1227 (citing Jones v. Apfel, 190 F.3d at 1229). Once the
Commissioner has done so, the claimant has the burden to show that he cannot perform
the identified work. Jones v. Apfel, 190 F.3d at 1228 (“If the Commissioner can
demonstrate that there are jobs the claimant can perform, the claimant must prove she
is unable to perform those jobs in order to be found disabled.”). If the claimant does
not do so, the claimant is not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(v) and (g).

6

FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ found that Mr. Parker met the insured status requirements of the Social
Security Act through December 31, 2009. (Tr. 27). The ALJ then found that Mr.
Parker had not engaged in substantial gainful activity since December 5, 2008, the
alleged amended onset date of his disability. (Id.). He further concluded that Mr.
Parker had the following severe impairments: chronic episodic inflamed varicose veins,
panic disorder, chronic obstructive pulmonary disease, bipolar I disorder, and mild
hypertrophic facet arthritic changes of lumbar spine. (Id.). The ALJ then held that
these medically determinable impairments, in combination, did not meet or medically
equal one of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the
Regulations. (Tr. 29).
After considering the entire record, the ALJ found that Mr. Parker had the
residual functional capacity (“RFC”) to perform “sedentary work” as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b). (Tr. 31). He further found that Mr. Parker
“has moderate restriction in the following areas: understanding, carrying out, and
remembering simple instructions; using judgment; responding appropriately to
supervision, co-workers and usual work situations; dealing with changes in a routine
work setting; and responding to customary work pressures. He would miss no more
than one and half days [sic] of work per month.” (Id.).
7

The ALJ then found that Mr. Parker was unable to perform his past relevant
work as a dump truck driver and a truck driver. (Tr. 33). He determined that Mr.
Parker “has a limited education and is able to communicate in English.” (Id.). He
further found that transferability of job skills is not an issue in this case because Mr.
Parker’s past relevant work is unskilled. (Tr. 34).
The ALJ found Mr. Parker’s ability to perform all or substantially all of the
requirements of sedentary work was impeded by additional limitations.

(Id.)

Accordingly, the ALJ asked the VE whether jobs exist in the national economy for an
individual with Mr. Parker’s age, education, work experience, and residual functional
capacity. (Id.). The VE testified that, given all of these factors, Mr. Parker would be
able to perform the requirements of representative sedentary unskilled occupations such
as assembler, tester, sorter, and sampler. (Id.). In his decision, the ALJ wrote,
“[p]ursuant to SSR 00-4p, the [ALJ] accepts the [VE’s] testimony is consistent with
the information contained in the Dictionary of Occupational Titles.” (Id.). Based on
the VE’s testimony, the ALJ “conclud[d] that, considering [Mr. Parker’s] age,
education, work experience, and residual functional capacity, [Mr. Parker] is capable
of making a successful adjustment to other work that exists in significant numbers in
the national economy.” (Id.). The ALJ therefore issued a finding of “not disabled.”
(Tr. 34, 35).
8

ANALYSIS
I.

INTRODUCTION
The court may reverse a finding of the Commissioner if it is not supported by

substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).5

However, the court “abstains from reweighing the evidence or

substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
II.

GROUNDS RAISED IN APPEAL
In his brief, Mr. Parker urges this court to reverse the Commissioner’s decision

on three grounds: (1) Mr. Parker is illiterate and the ALJ neither explored the conflict
between Mr. Parker’s illiteracy and the reading requirements for the jobs identified by
the VE, nor did he set out a reasonable explanation supporting his decision that Mr.
Parker could perform such work; (2) the ALJ’s hypothetical question was incomplete
in that it failed to include Mr. Parker’s severe breathing impairments; and (3) the ALJ’s
hypothetical questions were incomplete in that they did not mention any of the work

5

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
9

restrictions resulting from that condition. For the reasons set out below, the court
rejects each of these grounds.
A.

The Burden Is on Mr. Parker To Show that He Cannot Perform the
Jobs Identified by the VE

Step five (or step four in cases where the ALJ decides a claimant can
perform her past work) is generally where the rubber meets the road. At
that point, the ALJ formulates the all-important residual functional
capacity. Even where one or more severe impairments are established, the
claimant must show that she cannot perform work within that residual
functional capacity. The ALJ establishes residual functional capacity,
utilizing the impairments identified at step two, by interpretation of (1) the
medical evidence, and (2) the claimant's subjective complaints (generally
complaints of pain). Residual functional capacity is then used by the ALJ
to make the ultimate vocational determination required by step five.
Perdue v. Astrue, 2012 WL 967629, *6 (N.D.Fla., 2012).
As stated above, at step three, the ALJ found that Mr. Parker’s RFC was
“sedentary work” as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with
additional “moderate restriction in the following areas: understanding, carrying out, and
remembering simple instructions; using judgment; responding appropriately to
supervision, co-workers and usual work situations; dealing with changes in a routine
work setting; and responding to customary work pressures. He would miss no more
than one and half days [sic] of work per month.” (Tr. 31). Thus, the ALJ found that
Mr. Parker had both exertional and nonexertional limitations on his ability to meet the
demands of jobs and properly included those additional limitations in his RFC and in
10

his hypothetical questions to the VE.6
Mr. Parker argues that he could not perform the jobs identified by the VE
because Mr. Parker was illiterate. The burden, however, is on Mr. Parker to prove that
he can not do the jobs identified by the VE, based on his RFC, because a claimant who
can make an adjustment to other work is not disabled. See 20 CFR §§
404.1520(a)(4)(v) and (g)(1). Mr. Parker argues that, according to the DOT, the jobs
identified by the VE all require that the claimant be literate, and that it therefore was

6

§ 220.135 Exertional and nonexertional limitations.

(a) General. The claimant's impairment(s) and related symptoms, such as pain, may cause
limitations of function or restrictions which limit the claimant's ability to meet certain
demands of jobs. These limitations may be exertional, nonexertional, or a combination of
both. Limitations are classified as exertional if they affect the claimant's ability to meet the
strength demands of jobs.... Limitations or restrictions which affect the claimant's ability to
meet the demands of jobs other than the strength demands, that is, demands other than
sitting, standing, walking, lifting, carrying, pushing or pulling, are considered
nonexertional....
***
(d) Combined exertional and nonexertional limitations. When the limitations and
restrictions imposed by the claimant's impairment(s) and related symptoms, such as pain,
affect the claimant's ability to meet both the strength and demands of jobs other than the
strength demands, the Board considers that the claimant has a combination of exertional
and nonexertional limitations or restrictions. If the claimant's impairment(s) and related
symptoms, such as pain, affect the claimant's ability to meet both the strength and
demands of jobs other than the strength demands, the Board will not directly apply the
rules in appendix 2 unless there is a rule that directs a conclusion that the claimant is
disabled based upon the claimant's strength limitations; otherwise the rules provide a
framework to guide the Board's decision.
20 CFR § 220.135
11

error for the ALJ to neither explore that conflict nor set out a reasonable explanation
supporting his decision that Mr. Parker could perform such work. Even assuming that
such a conflict exists, however, this argument fails because it puts upon the
Commissioner the burden to prove that Mr. Parker can perform such work (that is, to
prove that he is literate).
As pointed out by Mr. Parker, the ALJ acknowledged his testimony that Mr.
Parker could read and write “only small words” (Tr. 32) and that the ALJ “did not
discredit it.” (Doc. 9, p. 11). However, the ALJ’s inclusion of that testimony in his
determination of Mr. Parker’s residual functional capacity and his failure to list
“illiteracy” as an additional limitation does not show that the ALJ was erroneous in the
limitations he listed in that RFC determination or in his hypothetical questions to the
VE. In fact, it is uncontroverted that Mr. Parker can read and write - he is just limited
to “small words.” Further, the VE was present for the entire hearing, and thus heard
all of the testimony, including the testimony about Mr. Parker’s limited ability to read.7
Taken together with Mr. Parker’s “limited” education, which the VE accurately

7

Thus, in this case, a more detailed description of Mr. Parker’s reading limitation did not
need to be explicitly included in the question to the VE. Cf. Brunson v. Astrue, 850 F. Supp. 2d
1293 (M.D. Fla. 2011) (“Nor does the hypothetical implicitly account for Plaintiff's mental
limitations because there was no further description or reference to Plaintiff's mental
abilities or limitations during the hearing” (emphasis supplied).
12

summarized,8 substantial evidence supports the ALJ’s RFC (which did not include a
limitation for illiteracy, as that term is defined in 20 CFR § 404.1564.)9 Thus, the

8

[Question by ALJ to VE:] “Okay, do you have sufficient information about his
education, in your opinion?”
[VE response:] “My understanding, from review of the record, is that he at least went into
the ninth grade. I’m not sure whether or not he completed it, but he has a history of Special
Education.”
[ALJ question:] “okay. Any disagreement with what [VE] Dr. Russell said?”
[Mrs. Parker’s response:] “No.”
[Mr. Parker’s response:] “No.”
(Tr. 72).
9

20 CFR § 404.1564 is set out in its entirety below.

20CFR § 404.1564 Your education as a vocational factor.
(a) General. Education is primarily used to mean formal schooling or other training
which contributes to your ability to meet vocational requirements, for example,
reasoning ability, communication skills, and arithmetical ability. However, if you
do not have formal schooling, this does not necessarily mean that you are
uneducated or lack these abilities. Past work experience and the kinds of
responsibilities you had when you were working may show that you have
intellectual abilities, although you may have little formal education. Your daily
activities, hobbies, or the results of testing may also show that you have significant
intellectual ability that can be used to work.
(b) How we evaluate your education. The importance of your educational
background may depend upon how much time has passed between the completion
of your formal education and the beginning of your physical or mental
impairment(s) and by what you have done with your education in a work or other
setting. Formal education that you completed many years before your impairment
began, or unused skills and knowledge that were a part of your formal education,
may no longer be useful or meaningful in terms of your ability to work. Therefore,
the numerical grade level that you completed in school may not represent your
actual educational abilities. These may be higher or lower. However, if there is no
other evidence to contradict it, we will use your numerical grade level to determine
your educational abilities. The term education also includes how well you are able
to communicate in English since this ability is often acquired or improved by
education. In evaluating your educational level, we use the following categories:
13

ALJ’s decision was not in error.

(1) Illiteracy. Illiteracy means the inability to read or write. We consider
someone illiterate if the person cannot read or write a simple message such as
instructions or inventory lists even though the person can sign his or her
name. Generally, an illiterate person has had little or no formal schooling.
(2) Marginal education. Marginal education means ability in reasoning, arithmetic,
and language skills which are needed to do simple, unskilled types of jobs. We
generally consider that formal schooling at a 6th grade level or less is a marginal
education.
(3) Limited education. Limited education means ability in reasoning,
arithmetic, and language skills, but not enough to allow a person with these
educational qualifications to do most of the more complex job duties needed
in semi-skilled or skilled jobs. We generally consider that a 7th grade
through the 11th grade level of formal education is a limited education.
(4) High school education and above. High school education and above means
abilities in reasoning, arithmetic, and language skills acquired through formal
schooling at a 12th grade level or above. We generally consider that someone with
these educational abilities can do semi-skilled through skilled work.
(5) Inability to communicate in English. Since the ability to speak, read and
understand English is generally learned or increased at school, we may consider
this an educational factor. Because English is the dominant language of the
country, it may be difficult for someone who doesn't speak and understand English
to do a job, regardless of the amount of education the person may have in another
language. Therefore, we consider a person's ability to communicate in English
when we evaluate what work, if any, he or she can do. It generally doesn't matter
what other language a person may be fluent in.
(6) Information about your education. We will ask you how long you attended
school and whether you are able to speak, understand, read and write in English
and do at least simple calculations in arithmetic. We will also consider other
information about how much formal or informal education you may have had
through your previous work, community projects, hobbies, and any other activities
which might help you to work.
20 C. F. R. § 404.1564 (emphasis supplied).
14

B.

The ALJ’s Hypothetical Question Was Complete

Mr. Parker next alleges error because the ALJ did not include Mr. Parker’s
“severe breathing impairments” in the hypothetical questions to the VE and failed to
include “some mention of the work restrictions resulting from that condition.” (Doc.
9, p.15). The court agrees that the ALJ must pose a hypothetical that comprises all of
the claimant’s impairments that significantly affect a claimant’s ability to work. Wilson
v. Barnhart, 284 F.3d at 1227 (citing Jones v. Apfel, 190 F.3d at 1229).
The hypothetical questions to the VE included all of Mr. Parker’s significant
work limitations, as determined by the ALJ in his RFC. Additionally and appropriately,
it included Mr. Parker’s age, education, and past relevant work. Specifically, the ALJ
told the VE to assume that: Mr. Parker at least went into the ninth grade, but had a
history of Special Education; Mr. Parker’s age; his past relevant work was as a dump
truck driver and a truck driver; he would be able to lift occasionally ten pounds, five
pounds frequently; sit two hours at a time, eight hours during an eight-hour day; walk
two hours at a time and two hours during an eight-hour day; he would be able to do
fingering and handling constantly bilaterally; a borderline range intellectually, 71 to 84;
would have not more than moderate limitations in mental basic work activities of
understanding, remembering and carrying out simple instructions, use of judgment,
responding appropriately to supervision, co-workers and usual work situations, dealing
15

with changes in a routine work setting and responding to customary work pressures;
he would miss no more than one-and-a-half days of work per month; he has diminished
hearing in the right ear, apparently little, if any, functional deficit; and would not be
able to do his past work due to the exertional differences. (Tr. 72-73).
“The RFC assessment only considers functional limitations and restrictions that
result from an individual's medically determinable impairment or combination of
impairments, including the impact of any related symptoms." SSR 96–8p.
Nonexertional limitations affect a claimant's ability to meet the demands of jobs, other
than strength demands. 20 C.F.R. § 404.1569a(c). For example, a claimant has a
nonexertional limitation if he has “difficulty tolerating some physical feature(s) of
certain work settings, e.g., [he] cannot tolerate dust or fumes.”

20 C.F.R. §

404.1569a(c)(5). “In the disability programs, a nonexertional impairment is one which
is medically determinable and causes a nonexertional limitation of function or an
environmental restriction. Nonexertional impairments may or may not significantly
narrow the range of work a person can do.” Social Security Ruling 83–14, 1983 WL
31254 at *1 (S.S.A.1983) (emphasis supplied). “If a claimant has nonexertional
impairments that significantly limit the ability to do basic work activities ... the grid
regulations do not apply.” Sryock v. Heckler, 764 F.2d at 836 (internal citations
omitted; emphasis added).
16

Mr. Parker accurately points out that,
At the end of the hearing[,] the ALJ did mention [Mr. Parker’s] diagnosis
of COPD, asthma, and mild obstructive pulmonary impairment with
particular involvement of the intermediate airway levels responsive to
bronchodilator therapy. [Mrs. Parker] told the ALJ that [Mr. Parker] is
still prescribed medicine for his COPD and alleged lung fibrosis. (T77).
However, the ALJ did not include any of these conditions in any
hypothetical question to the VE. (T74-76).”
(Doc. 9, p. 14). Although posed as an error in the hypothetical questions asked of the
VE, in essence, Mr. Parker is saying that substantial evidence does not support the
failure to include his pulmonary conditions or environmental limitations in the RFC.
This argument also fails. As to Mr. Parker’s pulmonary issues, the ALJ
specifically reviewed and addressed the medical opinions and records of treating
physician Craig Young, M.D. (Tr. 27). He also, in assessing RFC, considered Mr.
Parker’s subjective allegations of his symptoms, and appropriately applied what is
referred to as the “pain standard.”10 (Tr. 31-32). He found Mr. Parker’s allegations

10

Although often referred to as the “pain standard,” the Eleventh Circuit standard used to
assess subjective complaints is applicable to all subjective complaints, and not just to symptoms of
pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). (“This court has established a three
part ‘pain standard’ that applies when a claimant attempts to establish disability through his or her
own testimony of pain or other subjective symptoms. The pain standard requires (1) evidence of
an underlying medical condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the objectively determined
medical condition is of such a severity that it can be reasonably expected to give rise to the
alleged pain. The standard also applies to complaints of subjective conditions other than
pain.”)(internal citations omitted; emphasis supplied).

17

of severity of symptoms and limitations “not fully supported by the evidence of
record.” (Tr. 32).
[Mr. Parker] alleged during the hearing that he becomes short of breath
quickly. He stated he has used a nebulizer for the past four or five years.
***
The evidence does not satisfy Social Security regulations 20 C.F.R. §§
404.1529(c) and/or 416.929(c), SSR 96-7p, and the Eleventh Circuit law
on the assessment of subjective complaints of pain and other symptoms,
It does not establish an underlying medical condition, which is of such
severity that it can reasonably be expected to give rise to the symptoms
alleged by [Mr. Parker].
In terms of the severity of symptoms and limitations as alleged by [Mr.
Parker], the administrative law judge finds that they are not fully
supported by the evidence of record....
Additionally, the objective medical evidence fails to establish an
impairment, which is disabling in nature. Dr. Young noted [Mr. Parker’s]
obstructive pulmonary impairment was only mild in nature and was
responsive to bronchodilator therapy. (Exhibit B2F). Additionally, [Mr.
Parker] testified that, although he had reduced his smoking from two and
a half packs of cigarettes per day to a half a pack per day, he continued
to smoke, which indicates this issue is not as severe as alleged.”
***
Clearly, [Mr. Parker’s] impairments affect his ability to perform some of
the physical requirements of work. However, there is no evidence that
[his] impairments preclude him from performing work at the sedentary
level of exertion, as this level of work activity would minimize the impact
Holt v. Sullivan 921 F.2d 1221, 1223 (C.A.11 (Fla.),1991)
18

on this extremities and other body systems. Additionally, this exertional
level appears consistent with [Mr. Parker’s] current admitted abilities.
[He] testified that he could stand and walk for approximately two hours
during a normal workday.
As for the opinion evidence, ... [t]he administrative law judge affords no
weight to the State Agency’s opinions related to [Mr. Parker’s] physical
abilities and limitations (Exhibit B6F). These opinions were not
submitted from a medical professional and the combined impact of [Mr.
Parker’s] impairments would reasonably have greater exertional
limitations.
(Tr. 32-33).
Thus, the ALJ correctly applied the “pain standard” to Mr. Parker’s breathing
problems and found evidence of an underlying medical condition (COPD) but also
found neither objective medical evidence that confirms the severity of the alleged
limitations arising from that condition nor that the objectively determined medical
condition is of such a severity that it can be reasonably expected to give rise to the
alleged limitations.
Further, the ALJ was not required to include in his hypothetical questions to the
VE impairments which he had correctly determined did not significantly impair Mr.
Parker’s ability to work. McSwain v. Bowen, 814 F.2d 617, 620 n. 1 (11th Cir. 1987);
Graham v. Bowen, 790 F.2d 1572, 1576 (11th Cir. 1986) (ALJ did not err in failing to
include in hypothetical question limitations that did not significantly effect the level of
work the claimant can do); Smith v. Commissioner of Social Sec., 422 Fed.Appx. 855
19

(11th Cir. 2011) (ALJ was not required to consider additional impairments named by
claimant in determining her eligibility for Social Security disability benefits, where the
additional impairments did not affect claimant's ability to work, were not severe, and
did not impact the severity of the combination of impairments considered by the ALJ.).
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the ALJ applied proper legal standards
in reaching his decision and that his decision was supported by substantial evidence.
Accordingly, the decision will be affirmed by separate order.
DONE and ORDERED this 23rd day of September, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

20