Logan v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 8/6/2014. (KAM, )

FILED
2014 Aug-06 AM 11:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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4:13-cv-1013-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Sandra Logan, appeals from the decision of the Commissioner of

the Social Security Administration (“Commissioner”) denying her application for a
period of disability and Disability Insurance Benefits (“DIB”). Ms. Logan 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. Logan was forty-eight years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and she has a high school education. (Tr. at 27.) Her past
work experiences include employment as machine operator and packer. (Tr. at 26.)
Ms. Logan claims that she became disabled on January 4, 2010, due to chronic

obstructive pulmonary disease, bronchitis, asthma, osteoarthritis left shoulder,
fibromyalgia, obesity, and rheumatoid arthritis. (Tr. at 22.)
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). 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). 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). 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). If the claimant’s impairments fall within this category,
he or she will be found disabled without further consideration. Id. If they do not, a

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determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§
404.1520(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). If the claimant can do other work, the claimant is not disabled.
Id.
Applying the sequential evaluation process, the ALJ found that Ms. Logan
meets the nondisability requirements for a period of disability and DIB and was
insured through the date of his decision. (Tr. at 22.) He further determined that Ms.
Logan has not engaged in substantial gainful activity since the alleged onset of her
disability. (Id.) According to the ALJ, Plaintiff’s chronic obstructive pulmonary
disease, bronchitis, asthma, osteoarthritis left shoulder, fibromyalgia, obesity, and
rheumatoid arthritis are considered “severe” based on the requirements set forth in

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the regulations. (Id.) However, he found that these impairments neither meet nor
medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Id.) The ALJ did not find Ms. Logan’s allegations to be totally credible,
and he determined that she has the following residual functional capacity: to perform
light work with the following additional restrictions: to sit, stand, and/or walk for a
cumulative total of 6 hours in a 8-hour day; she has no limitations with the upper right
extremity; she can only do occasional climbing, balancing, kneeling, or crawling; she
cannot work in extreme heat, cold, fumes, or gases; and she cannot work around
unprotected heights or hazardous machinery. (Tr. at 23.)
According to the ALJ, Ms. Logan is able to perform her past relevant work. (Tr.
at 26.) She was a “younger individual” on the onset date of the alleged disability,
however, she is now “closely approaching advanced age” as both of those terms are
defined in the regulations. (Tr. at 27.) She has a high school education. (Tr. at 144.)
The ALJ determined the transferability of Plaintiff’s skills was not at issue because
Plaintiff’s past relevant work was unskilled. (Tr. at 27.) Even though Plaintiff cannot
perform the full range of light work, the ALJ used Medical-Vocation Rules 202.20 and
202.13 and a vocational expert’s (“VE’s”) opinion as guidelines for finding that there
are also a significant number of jobs in the national economy that she is capable of

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performing, such as ticket seller, shipping and receiving warehouse weigher, and
garment sorter. (Tr. at 27-28.) The ALJ concluded his findings by stating that Plaintiff
has not been under a ‘disability,’ as defined in the Social Security Act” from the date
of the alleged onset through the date of his decision. (Id.)
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 (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.

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1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (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 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).
III.

Discussion
Ms. Logan alleges that the ALJ’s decision should be reversed and remanded for

three reasons. First, she identifies what she believes to be inconsistencies and
ambiguities in the ALJ’s RFC assessment. (Doc. 10 at 1.) Second, Plaintiff contends
that the effects of obesity, when combined with other ailments identified by the ALJ,
“better comport with a sedentary RFC.” (Id.) Third, Plaintiff argues that the ALJ did
not fulfill his duty to develop the record. (Id.)
A.

RFC Assessment

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Plaintiff first contends that the ALJ’s assessment that Plaintiff can “sit, stand,
and/or walk for a cumulative total of 6 hours in an 8-hour day” is ambiguous. (Doc.
10 at 7). She claims it is facially unclear whether the ALJ meant that the three
activities could be performed for six hours each or whether the combined total for all
three activities is six hours during an eight-hour workday. (Id.)
The ALJ is responsible for assessing a claimant’s RFC. See 20 C.F.R. §
404.1546(c). Defects in an ALJ’s opinion are not grounds for modifying an otherwise
appropriate ruling unless the defects cause the ruling to be “inconsistent with
substantial justice.” See 20 C.F.R. § 498.224. The Court should apply a harmless
error analysis when evaluating defects in Social Security rulings. See Diorio v. Heckler,
721 F.2d 726, 728 (11th Cir. 1983). The burden for showing whether a defect is
harmful normally falls with the party challenging the agency’s determination. See
Shinseki v. Sanders, 556 U.S. 396, 409 (2009.)
A review of the record as a whole shows that the ALJ’s statement on Plaintiff’s
ability to sit, stand, and/or walk meant that Plaintiff could sit for six hours and stand
and/or walk for six hours, thereby allowing Plaintiff to work an eight-hour workday.
(See tr. at 48.) In speaking to the VE, the ALJ stated, “. . . I find that [Plaintiff] has
capability to stand and walk a cumulative total of six out of eight hours per day and to

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sit for a cumulative total of six out of eight hours per day . . .” (See Tr. at 176.)
Although the ALJ’s statement in Finding 5 could have been worded more concisely,
the record as a whole clears the ambiguity and thus renders harmless any error thereby
caused.
Plaintiff also avers that the ALJ’s ruling is inconsistent because the restrictions
included in the ALJ’s hypothetical to the VE were different from the restrictions in
his RFC assessment. Inconsistencies are also subject to the harmless error standard.
Diorio, 721 F.2d at 728. When the ALJ questioned the VE about Plaintiff’s
employment opportunities, the ALJ used a hypothetical that included every restriction
that he would later include in his RFC assessment. (See Tr. at 23, 48.) The ALJ also
included the additional restrictions of only occasional stooping and crouching and no
exposure to odors and poor ventilation, which had been opined by the state agency
non-examining physician, Dr. Heilpern, after he reviewed Plaintiff’s medical records
in June 2010. The VE responded that Plaintiff would still be able to perform her past
work, along with other light, unskilled jobs with an SVP of 2. (Id.) Although the ALJ’s
hypothetical also included additional restrictions not later incorporated into his RFC
assessment, this is a harmless inconsistency because the VE testified that Plaintiff
could perform her past relevant work with these additional limitations.

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Plaintiff further identifies an inconsistency based on the ALJ’s exclusion of her
knee ailments in his RFC assessment. (Doc. 10 at 7-8.) Plaintiff claims that although
the ALJ acknowledged her August 2009 ACL tear and joint effusions, along with Dr.
Heilpern’s finding in June 2010 that she had crepitus in both knees, he failed to find
that her knee impairment was “severe” at step two of the sequential evaluation.
(Doc. 10 at 7.)
The ALJ has the duty of weighing inconsistencies in the record to determine
whether a claim is credible. See 20 C.F.R. § 404.1520b. The ALJ took into account
Plaintiff’s knee problems, but he remarked that her medical records were silent on the
knee injury for the twelve months following her August 19, 2009, magnetic resonance
imaging (“MRI”) scan. (Tr. at 24.) He also considered the report of Dr. Tenchavez,
the one-time examining physician, whose May 2010 musculoskeletal evaluation did
not reveal any “pain, restriction, or swelling on review of the joints.” (Tr. at 173.) He
also reviewed a pain questionnaire filled out by Plaintiff in April 2010 in which she
failed to specifically identify knee pain. (Tr. at 133-34) (claiming that her pain is
located “all over her body,” feels similar to “the flu,” and causes her legs to
“tingle”). The foregoing evidence supports the ALJ’s decision not to categorize
Plaintiff’s knee pain a severe impairment. Nevertheless, “[e]ven if the ALJ erred in

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not indicating whether [a condition] was a severe impairment, the error was harmless
becuse the ALJ concluded that [the claimant] had a severe impairment; and that
finding is all that step two requires.” Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823,
824-25 (11th Cir. 2010). The ALJ found other severe impairments in this case,
satisfying his burden under step two. The relevant question is the extent to which
Plaintiff’s impairments limit her ability to work. See Moore v. Barnhart, 405 F.3d 1208,
1213 n.6 (11th Cir. 2005). After reviewing and discussing the evidence, including
evidence related to Plaintiff’s knees, the ALJ found Plaintiff could perform a range of
light work. (Tr. at 20-28.) The ALJ properly considered the Plaintiff’s knee pain
claim and issued an opinion supported by substantial evidence.
In sum, none of Plaintiff’s inconsistency claims are sufficient grounds to
reverse, remand, or otherwise modify the ALJ’s decision.
B. Plaintiff’s Obesity and the Light Work Assessment
Plaintiff argues that on its face the ALJ’s RFC assessment “would better
comport with sedentary work” presumably because the ALJ noted that all of
Plaintiff’s postural functions were limited to “occasional.” 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

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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.” See 20
C.F.R. § 404.1567(b). An individual can still perform light work with occasional
postural limitations. As stated above, the VE testified that an individual with
Plaintiff’s RFC and additional limitations of occasional stooping and crouching, and
no exposure to odors and poor ventilation, could perform past work as a machine
operator and a packer. (Tr. 47-48).
Plaintiff also claims that her obesity better comports with a sedentary RFC, thus
making the ALJ’s light work RFC erroneous. (Doc. 10 at 9-10.) She claims that her
obesity, when combined with her pulmonary impairments, “would reasonably reduce
to RFC to below the exertional requirements of light.” (Id.)
Obesity is not a listed impairment for the purposes of disability; however, Social
Security Regulation 02-1p requires ALJs to consider obesity in the context of a
claimant’s overall condition. See SSR 02-1p. This is because obesity is considered an
exacerbating factor for other impairments that may affect a claimant’s ability to
function in a work environment. See id. ALJs must“consider any additional and
cumulative effects of obesity.” See 20 C.F.R. § 404, Subp. P, App. 1. Here, the ALJ
classified Plaintiff’s obesity as a “severe” impairment, but he did not find that her

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obesity was medically equivalent to any of the listed impairments. (Tr. at 22.) To the
extent that Plaintiff’s pulmonary impairments equated a listing-level medical issue,
“pulmonary function testing is required to assess the severity of the respiratory
impairment once a disease process is established by appropriate clinical and laboratory
findings.” See 20 C.F.R. 404, Subp. P, App. 1, 3.00A. Plaintiff’s medical record
indicates a history of COPD, asthma, shortness of breath, and chronic bronchitis. (Tr.
at 149-54, 171.) Her pulmonary function test, however, revealed “essentially a normal
pulmonary function study without appreciable obstructive or restrictive pulmonary
disease.” (Tr. at 185.) Although Plaintiff’s subjective testimony was that she
sometimes has difficulty breathing, the ALJ concluded that her pulmonary
impairments, in consideration with the exacerbating effects of obesity, were
insufficient to render a disabled verdict. (Tr. at 24-26.) Because the ALJ balanced all
relevant evidence, properly considered the exacerbating effects of obesity, and
supported his finding with the results from the pulmonary function test, his decision
was proper. See Lewis v. Comm’r of Soc. Sec., 487 F. App’x 481, 483 (11th Cir. 2012)
(upholding and giving deference to ALJ’s finding that obese, arthritic claimant had
RFC to perform light work due to ALJ’s substantiation with medical evidence.)
Plaintiff has failed to show how her obesity or her condition in general caused

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limitations beyond the limitations found by the ALJ. See Moore, 405 F.3d at 1213 n.6
(“the mere existence of these impairments does not reveal the extent to which they
limit her ability to work or undermine the ALJ’s determination in that regard”).
C. Development of the Record
Ms. Logan also argues that the ALJ failed to develop the record regarding her
pulmonary impairments. Specifically, Plaintiff argues that the ALJ should have
obtained a medical expert opinion or ordered a second consultative examination. She
also argues that the ALJ should have recontacted Dr. Tenchavez, the one-time
examining physician, for clarification of his opinion.
The ALJ has a duty to develop the facts fully and fairly and to probe
conscientiously for all of the relevant information. Ware v. Schwieker, 651 F.2d 408,
414 (5th Cir. 1981). However, in all social security disability cases, the claimant bears
the ultimate burden of proving disability, and is responsible for furnishing or
identifying medical and other evidence regarding her impairments. See Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987); Doughty, 245 F.3d. at 1278; 42 U.S.C. §
423(d)(5). Furthermore, social security regulations provide that “when the evidence
[on record] . . . is inadequate for us to determine whether you are disabled, [the ALJ]
will need additional information to reach a determination or a decision.” 20 C.F.R.

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§§ 404.1512(e), 416.912(e) (emphasis added). Therefore, where the ALJ’s findings
are supported by evidence sufficient for a decision, the ALJ is not obligated to seek
additional medical testimony. See Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir.
1999). An ALJ has many options, but no affirmative requirements, for settling an
inconsistency or insufficiency in a claimant’s medical record. See 20 C.F.R. §
404.1520b. He has the option to contact the treating physician, ask the claimant for
addition records, request a consultative examination, or ask the claimant and/or others
for more information. Id. The ALJ may exercise all or none of these potential
remedies. Id. He is not required to take any of those steps if he determines that
weighing the available evidence will be sufficient. Id.
Furthermore, Plaintiff must make a “clear showing of prejudice before it is
found that the [plaintiff’s] right to due process has been violated to such a degree that
the case must be remanded to the [ALJ] for further development of the record.”
Graham v. Apfel, 129 F.2d 1420, 1422 (11th Cir. 1997). Thus, Plaintiff must show that
the lack of a record created an evidentiary gap, resulting in unfairness or clear
prejudice. See Edwards v. Sullivan, 937 F.2d 580, 586 (11th Cir. 1991) (finding that
plaintiff was not prejudiced by a lack of representation because record did not contain
any discernible evidentiary gaps).

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Here, as noted, the only pulmonary function testing in the record was
essentially normal without appreciable obstructive or restricted pulmonary disease.
(Tr. 25, 185). Plaintiff reported that since 2000, she has constant pain all over her
body, but there is no mention of these symptoms at her follow-up presentations to her
treating physicians. (Tr. 25, 134). During the May 2010 consultative examination with
Dr. Tenchavez, Plaintiff could heel, toe, tandem walk, stoop, and rise on her knees;
and her straight leg raising test was negative in the sitting and supine position. (Tr. 24,
173). Plaintiff had no pain, restriction, or swelling on review on the joints; and she had
normal breath sounds. (Tr. 24, 173). Plaintiff failed to show that the testimony of a
medical expert or a second consultative examination was required for the ALJ to make
an informed decision, and Plaintiff failed to show that she was prejudiced regarding
the development of the record. To the contrary, substantial evidence supports the
ALJ’s conclusion that Plaintiff was not disabled.
The ALJ was also not required to recontact Dr. Tenchavez. Dr. Tenchavez
examined Plaintiff on May 26, 2010.

Plaintiff mentions inconsistencies and

ambiguities, but she has not identified anything inconsistent or ambiguous in Dr.
Tenchavez’s opinion. Dr. Tenchavez did not assess specific functional limitations in
his report; however, Dr. Heilpern reviewed the record—including Dr. Tenchavez’s

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opinion—and opined that Plaintiff could perform a range of light work. (Tr. 24,
175-82). Plaintiff had not demonstrated prejudice to the extent that the ALJ was
required to further develop the record in any way.
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms. Logan’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.
Done this 6th day of August 2014.

L. Scott Coogler
United States District Judge
[160704]

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