Hobson v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 9/19/2014. (AVC)

FILED
2014 Sep-19 PM 04:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
CHERYL VANITA HOBSON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Case No. 4:13-cv-00187-TMP

MEMORANDUM OPINION
I.

Introduction
The plaintiff, Cheryl Vanita Hobson, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
her application for Supplemental Security Income (“SSI”). Ms. Hobson timely
pursued and exhausted her administrative remedies and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Ms. Hobson was forty-one years old at the time of the hearing, she has a
ninth-grade education, and she is able to communicate in English. (Tr. at 31, 44).
She has no past relevant work experience. (Id.) Ms. Hobson claims that she
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became disabled on June 1, 2009, due to COPD, seizures, glaucoma, depression,
back pain, and slow blood flow to the brain. (Tr. at 155).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). If
he or she is, the claimant is not disabled and the evaluation stops. Id. If he or she is
not, the Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends on the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant’s impairments are not severe, the analysis stops. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
three, which is a determination of whether the claimant’s impairments meet or
equal the severity of an impairment listed in 20 C.F.R. pt. 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments fall within this category, he or she will be found disabled without
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further consideration. Id. If they do not, a determination of the claimant’s residual
functional capacity will be made and the analysis proceeds to the fourth step. 20
C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an
assessment, based on all relevant evidence, of a claimant’s remaining ability to do
work despite his or her impairments. 20 C.F.R. § 404.945(a)(1).
The fourth step requires a determination of whether the claimant’s
impairments prevent her from returning to past relevant work.

20 C.F.R.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant’s RFC, as well as the
claimant’s age, education, and past work experience, in order to determine if he or
she can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v) 416.920(a)(4)(v). If the
claimant can do other work, the claimant is not disabled. Id. The burden is on the
Commissioner to demonstrate that other jobs exist which the claimant can
perform; and, once that burden is met, the claimant must prove his or her inability
to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999).

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Applying this sequential evaluation process, the ALJ determined that Ms.
Hobson has not engaged in substantial gainful activity since July 15, 2009, the
application date. (Tr. at 24). According to the ALJ, Plaintiff’s impairments include
mild degenerative disc disease of the lumbar spine; seizure disorder; affective
disorder with anxiety; bipolar disorder; COPD secondary to chronic tobacco abuse;
and narcotic dependence, which were considered “severe” based on the
requirements set forth in the regulations. (Id.) He also determined that the
Plaintiff has impairments that are non-severe, which are: a previous hysterectomy
following evidence of early stage uterine cancer, GERD, migraine headaches,
tremor, glaucoma, and obesity. (Id.) However, he found that the impairments,
either individually or in combination, do not meet or medically equal any of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 25).
The ALJ did not find Ms. Hobson’s allegations to be totally credible, and he
determined that she has the residual functional capacity to perform “sedentary
work as defined in 20 CFR 416.967(a), except she must avoid concentrated
exposure to extreme heat, cold and pulmonary irritants; no driving commercial
vehicles; occasional stooping; no climbing ladders, ropes or scaffolds; understand,
remember and carry-out instructions sufficient to perform simple, routine,
repetitive tasks; can maintain concentration, persistence and pace for periods up to
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two hours sufficient to complete a regular workday with routine breaks; low stress
environment, defined as infrequent, gradually introduced changes in the work
setting; infrequent interaction with public; can be around employees throughout
the workday, but only occasional, casual conversation and interpersonal
interaction; only occasional, tactful, non-confrontational supervision; and deal with
things rather than people. (Tr. at 27-28).
According to the ALJ, Ms. Hobson has no prior relevant work, she is a
“younger individual,” and she has a “limited education,” as those terms are
defined by the regulations. (Tr. at 31). He determined that “[t]ransferability of job
skills is not an issue because the claimant does not have past relevant work.” (Id.)
The ALJ found that Ms. Hobson has the residual functional capacity to perform a
significant range of sedentary work. (Tr. at 32). Even though Plaintiff cannot
perform the full range of sedentary work, the ALJ relied upon the testimony of an
impartial vocational expert (“VE”) for finding that there are a significant number
of jobs in the national economy that she is capable of performing, such as inspector
of small parts, bonder in the semi-conductor industry, and document preparer. (Id.)
The ALJ concluded his findings by stating that Plaintiff “has not been under a
disability, as defined in the Social Security Act, since July 15, 2009, the date the
application was filed (20 CFR 416.920(g).” (Id.)
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II.

Standard of Review
This court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842
(1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The court
approaches the factual findings of the Commissioner with deference, but applies
close scrutiny to the legal conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th
Cir. 1996). The court may not decide facts, weigh evidence, or substitute its
judgment for that of the Commissioner. Id. “The substantial evidence standard
permits administrative decision makers to act with considerable latitude, and ‘the
possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial
evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J.,
dissenting) (quoting Consolo v. Federal Mar. Comm’n, 383 U.S. 607, 620, 86 S. Ct.
1018, 16 L. Ed. 2d 131 (1966)). Indeed, even if this court finds that the evidence
preponderates against the Commissioner’s decision, the court must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400. No decision
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is automatic, however, for “despite this deferential standard [for review of claims]
it is imperative that the court scrutinize the record in its entirety to determine the
reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th
Cir. 1987). Moreover, failure to apply the correct legal standards is grounds for
reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.”

20 C.F.R. §§ 404.1527(e), 416.927(d).

Whether the

plaintiff meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
disagree with the ALJ about the significance of certain facts, the court has no power
to reverse that finding as long as there is substantial evidence in the record
supporting it.

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III.

Discussion
Ms. Hobson alleges that the ALJ’s decision should be reversed and

remanded for two reasons. First, the Plaintiff argues that the ALJ’s determination
of her RFC is not supported by substantial evidence because the ALJ failed to
include as a limitation upon her ability to do sedentary work that she be limited to
working in a “well-spaced environment.” Second, the Plaintiff argues that the
ALJ’s determination that she has the ability to perform unskilled sedentary work is
not supported by substantial evidence because the ALJ did not take into account
that the Plaintiff’s impairments will result in more than one absence per month
from her job, which according to the VE, would make her unemployable.

A.

Well-Spaced Work Environment

At the oral hearing, the ALJ discussed, in his hypothetical questions to the
Vocational Expert (VE), Ms. Hobson’s possible need for a well-spaced work
environment for light work.

Q

Then I will ask you to consider the following. Let’s assume a
younger individual with limited education but literate. Let us
further assume that this individual could perform work at the
light exertional level but should avoid the following, . . . .

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This [hypothetical] person should deal with things rather than
people; could be around employees throughout the day, but
only occasional, casual conversations and interpersonal
interaction, and would benefit from a well-spaced work environment
with only occasional tactful and non-confrontational
supervision. Given that particular hypothetical for both the
exertional, the environmental, the postural limitations and the
mental aspects, would there be other work existing in the
national economy such an individual could perform?
A

Judge, when you say could benefit from a well-spaced work
environment, are you saying that she should have a well-spaced
work environment?

Q

Well-spaced work environment would be proper, yes, sir.

A

Judge, unskilled, light or sedentary work is not going to offer a
well-spaced work environment that I’m familiar with in
Alabama.

Q

Now if we were to take a look, then, at just sedentary work
without the issue of a well-spaced work environment . . . would
there be other work?

A

There would be, Judge. Examples would include working as an
inspector of small parts. . . . Such a person could function as a
bonder in the semiconductor industry. . . . Such a person could
function as a document preparer in the [INAUDIBLE]
industry, preparing documents for microfilming or for scanning
into a computer.

(Tr. at 75-77) (emphasis added).
The Plaintiff argues that the ALJ should have applied the well-spaced
environment parameter set forth in his first hypothetical to Ms. Hobson’s RFC
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determination. Had the ALJ done so, a finding that she is disabled arguably would
have been required due to absence of any jobs that could meet that accommodation.
The Plaintiff argues also that the ALJ should have analyzed her need for a wellspaced environment similarly to the court in Rosario v. Commissioner of Social
Security, 2011 WL 6024027 (M.D. Fla. Dec. 5, 2011), in which the ALJ determined
that the plaintiff’s impairments created a situation in which “third parties walking
in and out of her area” would cause distractions and that the plaintiff’s “work
environment would consist of a desk, cubicle or space, but not like a fast food
environment.” Id. at *3. Ms. Hobson argues that the ALJ in Rosario properly
considered the plaintiff’s need for limited distractions, and that the ALJ in the
instant case similarly should have considered Ms. Hobson’s need for limited
distractions.
The ALJ addressed the Plaintiff’s claim of an inability to concentrate in his
decision. He wrote, for example:
With regard to concentration, persistence or pace, the claimant has
mild to moderate difficulties. Her niece indicated in the Function
Report that the claimant can do several activities that require a certain
concentration, persistence or pace such as dealing with her children,
watching television, watching her son play football, playing computer
games and talking on the phone.
...
Page 10 of 22

In addition, Dr. Houston stated that the claimant was able to
“concentrate and was persistent” and can adapt well to changing
conditions; however, the undersigned found the claimant to be more
limited in these areas and addressed these in the above residual
functional capacity assessment. The undersigned found that the
claimant can maintain concentration, persistence and pace for periods
up to 2 hours sufficient to complete a regular workday with routine
breaks. . .
Great weight is given to the records of the claimant’s treating
physicians, Dr. Boswell, Dr. Miller and Dr. Twilley. They have
examined the claimant and have established a patient-physician
[relationship] [sic] with the claimant. They are familiar with her
limitations and abilities. None of them have given the claimant any
limitations or stated that she is unable to work due to her impairments.
...
Additionally, there is evidence of exaggeration. . . . She [] alleged she
can only concentrate for 15 minutes at a time; however, her Function
Reports show she is able to watch television all day, maintain an
checking/savings account and watch her son play football, without any
problems, all of which are activities that require longer than 15
minutes of concentration. In addition, all of this is inconsistent with
the findings of Dr. Houston in these areas (his findings are above).
(Tr. at 30-31). Along with claiming she has difficulty concentrating, the Plaintiff
testified in the oral hearing that she had difficulty getting along with co-workers at
her previous jobs. She did not, however, claim that co-workers or customers being
in her workspace was particularly distracting. Her testimony did not indicate that a
“cubicle” style working environment would improve her ability to concentrate.

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Ultimately, the Plaintiff is responsible for proving disability. Although the
burden is on the Commissioner to demonstrate that jobs exist which the claimant
can perform, once that burden is met, the plaintiff must prove her inability to
perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999). Beyond claiming that the ALJ “ignored” the possibility that
Ms. Hobson would be unable to work with the distraction of third parties walking
around in her workspace, the Plaintiff does not offer any evidence that Ms. Hobson
cannot do the jobs listed in the ALJ’s opinion or that the ALJ’s RFC determination
was not based on substantial evidence. The Plaintiff’s medical records do not
indicate that her treating physicians believed she was unable to work around people
or that she needed to be in a “well-spaced” environment in order to work or
function. The only evidence of the Plaintiff’s need for a well-spaced environment
is her own testimony, which the ALJ found only partially credible. As discussed,
infra, the ALJ adequately explained his reasoning for not finding Ms. Hobson’s
testimony fully credible.
The Court must always be aware of the fact that opinions such as whether a
claimant is disabled, the claimant’s residual functional capacity, and the application
of vocational factors “are . . . reserved to the Commissioner because they are
administrative findings that are dispositive of a case; i.e., that would direct the
Page 12 of 22

determination or decision of disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d).
The ALJ clearly explained his determination and supported it with substantial
evidence from the medical and non-medical records in the instant case.
Accordingly, the ALJ’s determination is due to be upheld.

B. Absences
The Plaintiff argues that her “impairments in combination would certainly
result in more than just one absence from work per month.” (Doc. 12, p. 12). The
VE testified that the employer of a person with Ms. Hobson’s education and work
history would not tolerate more than one absence from work per month. Based on
the Plaintiff’s impairments and the VE’s testimony, the Plaintiff argues that the
ALJ should have found Ms. Hobson disabled and his decision is “not supported by
substantial evidence and is due to be reversed.” (Id.)
The ALJ discussed possible absenteeism with the VE at the oral hearing.
Q

And in this case, if I were to conclude that such an individual
similarly situated to the claimant in this case were to - - could
be expected to miss two or more days per month due to chronic,
recurrent symptomatology, in this case, chronic pain, also the
effects of ongoing seizures and other symptomatology, the need
for medical intervention, in your opinion, what would that - what would be the vocational significance of such absenteeism?

A

It would preclude gainful activity.
Page 13 of 22

Q

All right. And if I were to find [] the claimant’s testimony to be
credible with respect to the intensity, the frequency and severity
of her symptomatology, here again, more importantly, chronic
pain syndrome and ongoing seizure activity along with the
effects of migraines, indicating that she suffers one to two per
week, if I found that all to be credible and supported by the
objective medical evidence of record, what vocational
significance, in your opinion, would that have?

A.

It would preclude gainful activity.

(Tr. at 78-79). Again, the Plaintiff argues that the parameters of the hypothetical
precluding gainful activity should have been used by the ALJ to determine the
Plaintiff’s vocational ability.

The Plaintiff states that her “impairments in

combination would certainly result in more than just one absence from work per
month. She has bipolar disorder or affective disorder with mixed anxiety, a seizure
disorder, history of migraine headaches, and degenerative joint disease of the
lumbar spine. . . . It is also undisputed that the claimant has kidney stones every
three months which cause her to miss a day or two whenever they happen.” (Doc.
12, p. 12).
The Plaintiff’s argument that her impairments “certainly” would result in
more than one absence from work per month is based solely on Ms. Hobson’s own
subjective allegations of the severity of her impairments.

Part of the ALJ’s

responsibility was to assess whether such subjective allegations are credible and
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supported by objective medical evidence. In the instant case, the ALJ found that
Ms. Hobson’s testimony was not completely credible and was not supported by
evidence in the medical and nonmedical record.
. . .[O]nce an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other
symptoms has been shown, the undersigned must evaluate the
intensity, persistence, and limiting effects of the claimant’s symptoms
to determine the extent to which they limit the claimant’s functioning.
For this purpose, whenever statements about the intensity,
persistence, or functionally limiting effects of pain or other symptoms
are not substantiated by objective medical evidence, the undersigned
must make a finding on the credibility of the statements based on a
consideration of the entire case record.
...
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent
with the above residual functional capacity assessment.
The claimant complains of chronic back pain all the time with a dull
pain in her legs. She rated her pain at a pain level 6, on a 1 – 10 scale.
She alleges that her pain is exacerbated by prolonged sitting and
walking. She does not walk with an assistive device. An MRI of the
lumbar spine done in 2006 showed no disc herniation, no disc
protrusion, no evidence of mechanical nerve root deformity or neural
forminal stenosis. She did have mild degenerative disc changes and
facet hypertrophy at L5-S1. She has been treated at the emergency
room for lower back pain; however, on her emergency room sign in
sheet she put that she was there because she was out of her pain
medication. An electrodiagnostic report performed on July 6, 2010
Page 15 of 22

showed positive findings suggesting lumbosacral plexopathy and
lumbar radiculopa[t]hy [sic].
The claimant has been treated
consistently for back pain. She has been prescribed a variety of
medications to relieve the pain and reported success with the
medication. At her various follow-up visits, she reported relief from
back pain, and, as recently as at her August 5, 2010 follow-up, she
reported reduced back pain. In addition, there is no recommendation
for surgery on her back (Exhibits 4F, 6F, 13F, 16F, 18F and 24F).
The claimant also has seizures. When the claimant first had seizures
she was prescribed Keppra but had to discontinue it, because it caused
her to have hallucinations and curse. She discontinued the medication
and the hallucinations and cur[s]ing [sic] stopped. The claimant was
then prescribed Depakote for her seizures, which was successful in
controlling her seizures. Her treating physician discontinued her
Depakote in October 2008 and she began having seizures. She was
then prescribed Lamictal, by her neurologist, Lorn S. Miller, D.C.,
M.D., which has since successfully controlled her seizures. However,
she experienced a seizure in March 2010 and June 2010 because []
[sic] the claimant ran out of her medication and, therefore, was not
taking it. At the hearing, the claimant testified that she currently has
3-4 seizures a month, because she is still not taking her medication. . . .
As long as the claimant is taking her seizure medication, her seizures
are controlled (Exhibits 4E, 4F, 5F, 14F and 15F).
The claimant also has COPD secondary to chronic tobacco use. . . . At
the hearing, she testified that she still smokes 5-6 cigarettes daily.
Although she is still smoking, the claimant stated at her January 18,
2011 office visit that she was getting some relief from the COPD
(Exhibits 2F, 6F, 13F and 22F 24F).
...
The claimant has bipolar disorder and anxiety. The claimant reported
being seen at a mental health center wherein she was diagnosed with
bipolar disorder. The claimant does have insurance so she could have
mental health treatment, but there is no evidence that she has formal
mental health treatment from anyone other than her regular treating
Page 16 of 22

physician, Dr. Boswell. He has prescribed her Seroquel and Xanex
[sic], which she testified makes her feel groggy, although there is no
evidence she reported this side effect. The claimant was evaluated by
Charles E. Houston, Sr., Ph.D., an evaluating psychologist. Dr.
Houston diagnosed her with bipolar disorder, possibly mixed type. . . .
Although he states that “her ability to relate to other[s] [sic] is
affected” the Function Reports indicate that she spends time with
family daily, i.e., daily going to her niece[’]s [sic] house; talks to
people daily; has a boyfriend and takes care of her children. There is
no evidence in the Function Reports that she has problems with
others, other than “sometimes.”
...
Great weight is given to the records of the claimant’s treating
physicians, Dr. Boswell, Dr. Miller and Dr. Twilley. They have
examined the claimant and have established a patient-physician
[relationship] [sic] with the claimant. They are familiar with her
limitations and abilities. None of them have given the claimant any
limitations or stated that she is unable to work due to her impairments.
...
At the hearing she stated that she does not like to leave the house and
cannot be around people (co-workers and family) because she cannot
get along with people; however, in both Function Reports (one from
the claimant[] [sic] and one from the claimant’s niece) it is indicated
that she goes to her niece’s house daily and spends time with her; has
a boyfriend; talks on the phone; goes to stores; lives with her 3
children, and watches her son play football. She also testified that she
needs help with cooking and cleaning, but the Function Reports
indicate otherwise, in that, both her [sic] and her niece indicate that
the claimant cleans, does the laundry, cares for her pet and cooks full
course meals daily. In fact, her niece stated that the claimant cleans
house a half day each day. There is no indication that she requires
help, other than the occasional help from her children.

Page 17 of 22

Additionally, there is evidence of exaggeration. At the hearing [s]he
[sic] testified that [she] [sic] needs help getting out of the bed in the
mornings; however, this has not been reported to any physician and
none of her Function Reports indicate[s] [sic] this. She testified that
she drives and goes to the grocery store maybe 2 times [per-month],
but her Function Reports show she goes shopping for food and clothes
more frequently than 2 times. She alleged that she cannot even
perform a sit down/sedentary job and she cannot do a whole lot of
lifting, carrying and sitting for long periods of time. However, her
Function Reports show that she [is] able [to] [sic] cook full course
meals, clean, dust, sweep, maintain her personal care, all with very
little help, if any. She also alleged she can only concentrate for 15
minutes at a time; however, her Function Reports show she is able to
watch television all day, maintain an checking/savings account and
watch her son play football, without any problems, all of which are
activities that require longer than 15 minutes of concentration. In
addition, all of this is inconsistent with the findings of Dr. Houston in
these areas. . .
After thorough review of the evidence of record, including the
claimant’s allegations and testimony, forms completed by the claimant
at the request of Social Security, the objective medical findings,
medical opinions, and other relevant evidence, the undersigned finds
the claimant capable of performing work consistent with the residual
functional capacity established in this decision.
(Tr. at 27-31). The ALJ found that the Plaintiff’s migraines “are controlled with
medication,” “have not increased in severity since June 2009,” and that none of
Ms. Hobson’s treating physicians “have stated that the claimant has any
limitations or disability due to [her migraines].” (Tr. at 24). Based on this
evidence, the ALJ determined that the Plaintiff’s migraines “constitute, at most,

Page 18 of 22

only slight abnormalities that cannot reasonably be expected to produce more than
minimal, if any, work-related limitations.” (Id.)
The ALJ did not, however, address the Plaintiff’s history of kidney stones in
his determination. The Plaintiff did not list her kidney stones as an ailment in her
Disability Report. (Tr. at 155, 190). Ms. Hobson’s medical records reflect a
history of kidney stones, and the ALJ acknowledged her kidney stones in the oral
hearing.

Q

Okay. And then you’re having kidney stones?

A

Yes, sir.

Q

And you’re seeing Dr. Brian Stone about that?

A

Yes, sir.

Q

How often do you have kidney stones?

A

Like every three months. I’ve had lithotripsies done, too.

Q

Okay. Does that take - - if you have a kidney stone, does that
take you out for a day or two?

A

Yes, sir.

Q

So you’re missing a day or two every three months?

A

Yes, sir.

Page 19 of 22

(Tr. at 59-60).
Although the ALJ did not specifically address the Plaintiff’s history of kidney
stones in his opinion, the Eleventh Circuit has held, “[t]here 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 court] to conclude that [the ALJ] considered her medical
condition as a whole.’” Dyer, 395 F.3d at 1211 (quoting Foote v. Charter, 67 F.3d
1553, 1561(11th Cir. 1995)). It is clear to the court that the ALJ thoughtfully and
thoroughly reviewed the record in the instant case and considered medical
evidence along with non-medical evidence such as the Plaintiff’s testimony. The
ALJ’s decision was not a broad-brush rejection and is due to be upheld.
However, even assuming that the ALJ erred in failing to specifically address
the Plaintiff’s history of kidney stones, such error was harmless. In Jordan v.
Astrue, the United States District Court for the Middle District of Florida discusses
the idea of “harmless error” in regard to ALJ determinations:
In Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.1989), the court found
no principle of administrative law or common sense requires remand
in quest of a perfect opinion unless there is reason to believe the
remand might lead to a different result. In Ward v. Commissioner of
Social Security, 211 F.3d 652, 656 (1st Cir.2000), the court held that
Page 20 of 22

while an error of law by the ALJ may necessitate a remand, a remand is
not essential if it will amount to no more than an empty exercise.
617 F. Supp. 2d 1154, 1164 (M.D. Fla. 2008).
In the instant case, the Plaintiff has presented no evidence that she is
disabled specifically due to her history with kidney stones. In the Plaintiff’s brief
she argues that it is “undisputed” that her condition will cause her to accrue more
than an average of one absence from work per-month, making her unable to do any
work the ALJ found her qualified for. However, the Plaintiff’s bald assertion that
she will have a kidney stone every three months and miss two-to-three days of work
each time does not indicate that the ALJ’s decision is not supported by substantial
evidence.

The medical records simply do not support the Furthermore, the

Plaintiff’s medical records, though they do indicate a history of kidney stones, do
not indicate that the plaintiff is fated to always suffer from kidney stones. Even if
the ALJ did err in failing to specifically discuss the Plaintiff’s history of kidney
stones in his determination, remanding the case for further analysis on that point
would not change the outcome of the case and would be an exercise in futility.
Accordingly, the ALJ’s determination is due to be affirmed.

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IV.

Conclusion
Upon review of the administrative record, and considering all of Ms.

Hobson’s arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered affirming the Commissioner’s determination.
DONE this 19th day of September, 2014.

________________________________

T. MICHAEL PUTNAM
U.S. MAGISTRATE JUDGE

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