Payton v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 7/2/15. (MRR )

FILED
2015 Jul-02 PM 04:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
CHRISTY NICOLE PAYTON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. 4:14-CV-1404-SLB

MEMORANDUM OPINION
Plaintiff Christy Nicole Payton brings this action pursuant to 42 U.S.C. § 405(g),1
seeking review of the Commissioner of Social Security’s final decision denying her
application for supplemental security income [“SSI”]. Upon review of the record, the
relevant law, and the parties’ briefs, the court is of the opinion that the Commissioner’s
decision is due to be affirmed.
I. PROCEDURAL HISTORY
Plaintiff filed an application for SSI on December 7, 2010, alleging disability
beginning on December 1, 2009. (R. 11, 53.)2 Her application was denied initially on May
2, 2011. (R. 62.) Thereafter, she requested a hearing before an Administrative Law Judge

1

The judicial review provisions for DIB claims, 42 U.S.C. § 405(g), apply to
claims for SSI. See 42 U.S.C. § 1383(c)(3).
2

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

[“ALJ”], which was held on September 24, 2012. (R. 26.) After the hearing, the ALJ found
that plaintiff was able to perform her “past relevant work as a cashier at a grocery store, fast
food worker and a breakfast manager at a fast food restaurant.” (R. 21.) In light of these
findings, the ALJ determined that plaintiff was not disabled and denied plaintiff’s request for
SSI on October 26, 2012. (Id.)
Plaintiff then requested review of the ALJ’s decision by the Appeals Council, (R. at
7), and on May 21, 2014, the Appeals Council denied plaintiff’s request for review, thereby
rendering the ALJ’s decision the final decision of the Commissioner of Social Security, (R.
1). Following denial of review by the Appeals Council, plaintiff filed an appeal in this court.
(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.
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

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supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cor.
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 supplemental security income. See 20 C.F.R.
§ 416.920(a)(1)-(2); see also Bowen v. City of New York, 476 U.S. 467, 470 (1986). “The
term ‘disability’ means – (A) [the] inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous period of not

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less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 416(i)(1). 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 activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations
define “substantial gainful activity” as “work activity that is both substantial and gainful.”3
20 C.F.R. § 416.972. 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. § 416.920(b).
“Under the first step, the claimant has the burden to show that she is not currently engaged

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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; 20 C.F.R. § 416.972.
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in substantial gainful activity.” Reynolds-Buckley v. Commissioner of Social Sec., 457 F.
App’x 862, 863 (11th Cir. 2012).4
The ALJ found that plaintiff had not engaged in substantial gainful activity since
December 7, 2010, the alleged onset date. (R. 13.)
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 the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. § 416.920(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, we will find that you do not have a severe impairment and
are, therefore, not disabled. We will not consider your age, education, and work experience.”
20 C.F.R. § 416.920(c). “An impairment can be 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

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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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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. §
416.921(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. § 416.923. A claimant has the burden to show
that she has a severe impairment or combination of impairments. Reynolds-Buckley, 457 F.
App’x at 863.
The ALJ found that plaintiff had the following severe impairments: fibromyalgia,
degenerative changes of the right knee status post three arthroscopic surgeries, and a history
of abdominal/pelvic pain. ( R.13.)
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
activity. 20 C.F.R. § 416.920(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 her age, education, and work experience. 20
C.F.R. § 416.920(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 F. App’x at 863.

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The ALJ found that plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix I. (R. 17.)
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. § 416.920(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 [the claimant’s] past relevant work. 20 C.F.R. § 416.960(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.
§ 416.960(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. § 416.920(e). The claimant bears the
burden of establishing that the impairment prevents her from performing past work.
Reynolds-Buckley, 457 F. App’x at 863.
The ALJ found that plaintiff had the RFC “to perform light work . . . except she
cannot work around unprotected heights, she cannot climb ladders, ropes or scaffolds and can
only occasionally push and pull foot or leg controls with her right lower extremity.” (R.18.)
The ALJ found that plaintiff’s RFC does not restrict her from performing her past relevant

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work as a cashier at a grocery store, a fast food worker, and a breakfast manager at a fast
food restaurant. (R.21.)
B. MS. PAYTON’S CLAIMS
Plaintiff argues that the ALJ erred by (1) finding that plaintiff’s testimony is not
credible, (Doc. 11 at 19); (2) finding that plaintiff’s non-severe impairments of major
depressive disorder and dysthymic disorder do not cause more than minimal limitation, (id.
at 24); (3) failing to apply proper legal standards and not relying on substantial evidence to
find that plaintiff can perform past relevant work , (id. at 11); and (4) relying on vocational
expert testimony after failing to fully state plaintiff’s impairments and limitations in a
hypothetical to the VE, (id. at 14). Having reviewed the entire record before the ALJ and
the parties’ briefs, the court finds that the Commissioner’s decision is due to be affirmed.
1. Credibility of Plaintiff’s Testimony
Plaintiff argues that the ALJ improperly discredited plaintiff’s testimony concerning
the severity of her pain and contends that plaintiff’s testimony “in addition to the medical
evidence clearly establishes [her] disability.” (Doc. 11 at 19, 23.) SSR 96-7p explains the
two step process set out in 20 C.F.R. § 416.929: “First, the adjudicator must consider
whether there is an underlying medically determinable physical or mental impairment— i.e.,
an impairment(s) that can be shown by medically acceptable clinical and laboratory
diagnostic techniques— that could reasonable be expected to produce the individual’s pain

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or other symptoms.” This determination does not consider the “intensity, persistence, or
functionally limiting effects of the individual’s symptoms.” SSR 96-7p.
If the ALJ finds that the plaintiff’s case survives the first step, then
the adjudicator must evaluate the intensity, persistence, and
limiting effects of the individual’s symptoms to determine the
extent to which the symptoms limit the individual’s ability to
do basic work activities. For this purpose, whenever the
individual’s statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the adjudicator
must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.
SSR 96-7p.
Plaintiff argues that “[t]he pain standard does not require objective proof of the pain
itself, (Doc. 11 at 20 (citing Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991)),
and that her subjective testimony of the severity of her pain is sufficient to support a finding
of disability, (Doc. 11 at 20). While the ALJ must consider a claimant’s subjective
testimony in determining the severity of her pain, the ALJ is also required to consider the
objective medical evidence. See 20 C.F.R. § 416.929(a) (“In evaluating the intensity and
persistence of your symptoms, including pain, we will consider all of the available evidence
. . . .”). “If the ALJ decides not to credit a claimant's testimony as to her pain, he must
articulate explicit and adequate reasons for doing so.” Foote v. Chater, 67 F.3d 1553,
1561-62 (11th Cir. 1995). “Although this circuit does not require an explicit finding as to
credibility, . . . the implication must be obvious to the reviewing court.” Dyer v. Barnhart,

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395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Foote, 67 F.3d at 1562) (internal quotations
omitted).
The ALJ found that “although the evidence establishes underlying medical
conditions capable of producing some pain and other limitations, the substantial evidence
does not support a conclusion that the objectively determined medical conditions are of
such severity that they could reasonably be expected to give rise to disabling pain and other
limitations as alleged by the claimant.” (R.20.) In making this determination, the ALJ relied
on medical evidence from the record:
Dr. Anderson, the medical expert, testified the patient has a generalized
pain syndrome with possible myalgia and possible fibromyalgia. Dr.
Anderson testified the claimant has spinal pain associated with her
generalized pain syndrome but an MRI of her thoracic spine and lumbar
spine were normal. Dr. Anderson noted that the claimant had chronic
knee pain but had good results with her arthroscopy surgery. . . . Dr.
Anderson opined that the claimant should be restricted to work at the light
exertional level.
(R. 19; see also R. 39-40.) The ALJ also noted that “[t]he record does not contain any
opinions from treating or examining physicians indicating that the claimant is disabled or
even has limitations greater than those determined in this decision.” (R. 20.) See Osborn
v. Barnhart, 194 F. App’x 654, 663 (11th Cir. 2006) (finding that the ALJ’s decision to
deny disability based on migraine headaches was supported by the lack of medical records
supporting the level of severity to which the plaintiff testified).
The ALJ also relied on inconsistent testimony regarding plaintiff’s abilities. Plaintiff
testified at the hearing that she did not leave the house, sometimes for a week at a time, (R.
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38-39), but in a Function Report, plaintiff stated that she attended church weekly, drove her
children to and from school, and her mother reported that plaintiff went outside “daily,” (R.
143, 146-47, 154). In a consultative examination, plaintiff again reported attending church
on a weekly basis and stated that she was a Girl Scout leader. (R. 346.)
The court finds that the ALJ based his decision to discredit plaintiff’s pain testimony
on substantial evidence and sufficiently articulated his rationale for doing so.
2. Major Depressive Disorder and Dysthymic Disorder
Plaintiff next contends that the ALJ erred in finding that plaintiff’s major depressive
disorder and dysthymic disorder were non-severe impairments. (Doc. 11 at 24.) Although
plaintiff does not cite any evidence from the record undermining the ALJ’s finding in her
Memorandum in Support of Disability, (Doc. 11), she argues in her Reply that the ALJ’s
finding is not supported by substantial evidence because it disregards December 2010 and
February 2011 medical records from C.E.D. Mental Health Center and two Quality of Life
records from September 2012, (Doc. 13 at 5).
The December 2010 record from C.E.D. Mental Health Center states that plaintiff
presented with complaints of “depression on and off for years,” that her depression has been
worse for the past two months, and that she was “tearful” and had “vague suicidal thoughts.”
(R. 310.) The February 2011 record contains notes of the examiner: “flat-affect, withdrawn,
poor appetite, . . . depression . . . , tearfulness often, nervous in crowds . . . , some good
days/“happy” some days, and tearful at points in interview.” (R. 313.) That record also

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contains diagnoses for major depressive disorder, noted to be “recurrent” and “moderate,”
and social phobia. (R. 317.) Regarding the C.E.D. Mental Health Center records, the ALJ
stated that “[i]n February 2011, the claimant was diagnosed with major depressive disorder
and social phobia at the C.E.D. Mental Health Center in Gadsden, Alabama. There is no
record of ongoing treatment at C.E.D. after the initial diagnosis.” (R. 15.)
The ALJ then discussed additional evidence regarding plaintiff’s depression, noting
that during a consultative examination, Dr. June Nichols diagnosed plaintiff with dysthymic
disorder and opined that plaintiff’s “ability to relate interpersonally and withstand the
pressures of everyday work [was] mildly compromised,” that plaintiff did not have “deficits
which would interfere with her ability to remember, understand and carry out work related
instructions,” and that she could “handle her own funds and live independently.” (R. 15,
347.) During the exam, plaintiff reported experiencing depression since her teenage years.
(344.) The ALJ also considered a report by Dr. Robert Estock, a state agency psychological
consultant, in which Dr. Estock opined that plaintiff suffered from major depressive disorder
and dysthymic disorder but had “only mild restriction of activities of daily living; no
difficulties in maintaining social functioning; no difficulties in maintaining concentration[,]
persistence and pace; and no episodes of decompensation” of an extended duration. (R. 15;
see R. 348, 351-53.)
While the ALJ did not explicitly address the December 2010 record, which noted that
plaintiff had “depression on and off for years,” the ALJ acknowledged this fact by noting

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that plaintiff had experienced depression since her teenage years and that this impairment
had not inhibited plaintiff’s ability “ to work after the alleged onset of her depression.” (R.
15.) Additionally, the ALJ adequately considered the February 2011 record, noting that
plaintiff was diagnosed with depression and social phobia during this time. (R. 15.)
The two Quality of Life records from September 2012, to which plaintiff points, each
contain an “assessment,” under which it was noted that plaintiff had chronic depression. (R.
437, 446.) One record also contains an additional note that plaintiff reported “functioning
as somewhat difficult.” (R. 443.) The record also states that the “patient presents with
difficulty falling asleep, difficulty staying asleep and restlessness but denies thoughts of
death or suicide. The depression is aggravated by conflict or stress, lack of sleep and social
interactions.” (Id.) While plaintiff is correct that the ALJ did not explicitly review these
Quality of Life records, these records are not inconsistent with the ALJ’s finding. The
records show that plaintiff had the impairment of depression, and one record notes
plaintiff’s subjective complaints regarding her depression. Those records, which are
consistent with the ALJ’s finding that plaintiff had major depressive disorder and dysthymic
disorder, do not undermine the ALJ’s findings regarding the severity of plaintiff’s
depression, and thus, the court finds that plaintiff has identified no reversible error.
3. Past Relevant Work
At step four, the ALJ determined that plaintiff could perform her past relevant work,
including work as a cashier at a grocery store, a fast food worker, and a breakfast manager

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at a fast food restaurant. (R. 21.) Plaintiff contends that the ALJ erred in reaching this
finding because “[t]he ALJ omitted any finding of fact as to the claimant’s residual
functional capacity, a finding of fact as to the physical and mental demands of the past
job/occupation, and a finding of fact that the claimant’s [RFC] would permit a return to the
past job or occupation.”5 (Doc. 11 at 11.)
The Regulations provide that the ALJ will use the RFC assessment at the fourth step
of the sequential evaluation process to determine if a claimant can perform her past relevant
work. 20 C.F.R. § 416.920(e). First, the ALJ must compare the RFC assessment with the
“physical and mental demands of [the claimant’s] past relevant work, and in doing so, the
ALJ may rely on vocational expert testimony. 20 C.F.R. § 416.960(b).
A vocational expert or specialist may offer relevant evidence within his or
her expertise or knowledge concerning the physical and mental demands
of a claimant's past relevant work, either as the claimant actually performed
it or as generally performed in the national economy. Such evidence may
be helpful in supplementing or evaluating the accuracy of the claimant's
description of his past work. In addition, a vocational expert or specialist
may offer expert opinion testimony in response to a hypothetical question
about whether a person with the physical and mental limitations imposed
by the claimant's medical impairment(s) can meet the demands of the
claimant's previous work, either as the claimant actually performed it or as
generally performed in the national economy.
20 C.F.R. § 416.960(b)(2).

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In her Reply, plaintiff admits that the ALJ “did make a finding of fact as to the
claimant’s [RFC]” but maintains that the ALJ failed to make a finding of fact regarding
(1) the physical and mental demands of plaintiff’s past work and (2) whether plaintiff’s
RFC would permit her to return to her past work. (Doc. 13 at 2.)
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At the hearing, the ALJ asked the VE the following hypothetical:
If I were to find the [c]laimant capable of performing work at the light
level of exertion, but I find that she would be precluded from work around
unprotected heights, she would be precluded from climbing ladders, ropes,
or scaffolds, she would be limited to no more than occasional pushing or
pulling of foot or leg controls with the right lower extremity, would she be
capable of performing any of the past work that you have identified?
(R. 42.) The VE responded that a claimant with this RFC could perform all of plaintiff’s
past relevant work. (Id.)
After the hearing, the ALJ found that plaintiff had the RFC to perform “light work
. . . except she cannot work around unprotected heights, she cannot climb ladders, ropes or
scaffolds and can only occasionally push and pull foot or leg controls with her right lower
extremity,” (R.18), and then determined that plaintiff could perform her past relevant work,
(R. 21). The ALJ relied on the VE’s testimony regarding plaintiff’s past work, including
testimony that the Dictionary of Occupational Titles (“DOT”) defines all of plaintiff’s past
work as work performed at the “light level of physical exertion.” (Id.) See Hernandez v.
Comm’r of Soc. Sec., 433 F. App’x 821, 823 (11th Cir. 2011) (“The ALJ was permitted to
rely on the DOT classifications to determine whether Hernandez's past relevant work was
light in exertion as it is generally performed in the national economy.”). The ALJ then
stated that, “[i]n comparing the claimant’s [RFC] with the physical and mental demands of
this work, I find that the claimant is able to perform it as actually and generally performed.”
(R. 21.)

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The court finds that the ALJ conducted an RFC assessment, properly evaluated the
physical and mental demands of plaintiff’s past relevant work based on the VE’s testimony
regarding the DOT classifications for plaintiff’s past work, and then relied on substantial
evidence in finding that plaintiff’s RFC permits her to return to her past work.
4. Vocational Expert Testimony
Plaintiff contends that “[t]he testimony of the VE was not substantial evidence
because the ALJ in his hypothetical did not consider [c]laimant’s depression, irritable bowel
syndrome, migraines, and fibromyalgia.” (Doc. 11 at 14.)
“In order for a VE’s testimony to constitute substantial evidence, the ALJ must pose
a hypothetical question which comprises all of the claimant’s impairments.” Jones v. Apfel
190 F.3d 1224, 1229 (11th Cir. 1999) (citing McSwain v. Bowen, 814 F.2d 617, 619-20
(11th Cir. 1987)). However, the ALJ is not required to include impairments in the
hypothetical that the ALJ finds the claimant does not have. See Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (An “ALJ [is] not required to include findings
in the hypothetical that the ALJ ha[s] properly rejected as unsupported.”); Loveless v.
Massanari, 136 F. Supp. 2d 1245, 1251 (M.D. Ala. 2001); McKay v. Apfel, No. Civ. A. 97C-1548-N, 1999 WL 1335578, at *7 (M.D. Ala. Dec. 9, 1999) (“[T]he [ALJ’s] hypothetical
need only include[] the impairments which the ALJ accepts as true.”) (citing Haynes v.
Shalala, 26 F.3d 812, 815 (8th Cir. 1994); Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir.
1990); Copeland v. Bowen, 861 F.2d 536, 540-41 (9th Cir. 1988)).

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The ALJ posed a hypothetical question to the VE that included every limitation the
ALJ identified in the RFC assessment. (See R. 42.) The ALJ was not required to include
limitations in the hypothetical resulting from impairments whose severity the ALJ properly
found to be unsupported by substantial evidence in the record. See Loveless v. Massanari,
136 F. Supp. 2d 1245, 1251 (M.D. Ala. 2001) (“Having reviewed the record, the court finds
that the ALJ's hypothetical questions posed to the VE were proper because they included
only the impairments that the ALJ found to have been severe. Because the court finds that
the ALJ's determination of non-severity was supported by substantial evidence, the court
concludes that the ALJ's hypothetical questions to the VE were sufficiently
comprehensive.”). The ALJ determined the evidence of record did not support a finding that
plaintiff’s irritable bowel syndrome (“IBS”) and migraines were severe, stating that little
evidence in the record supported the existence of those impairments6 and that those
impairments did not meet the durational requirements. (R. 13-14.) Additionally, regarding
plaintiff’s depression, the ALJ relied on substantial evidence in finding that this impairment
was non-severe, as discussed above.

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The ALJ incorrectly stated that “there is no objective medical evidence in the
record indicating that the claimant has sought or received treatment for IBS and there is
no diagnosis of IBS in the record,” (R. 14), as a Quality of Life record shows that
plaintiff was treated for “[i]rritable colon” on September 4, 2012 with medication. (R.
446.) When plaintiff returned to Quality of Life on September 18, 2012, plaintiff was
negative for IBS symptoms. (R. 435.) Plaintiff does not challenge the ALJ’s failure to
reference this evidence regarding plaintiff’s IBS impairment. Even considering this
evidence, the court finds that the ALJ’s opinion is supported by substantial evidence.
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Furthermore, the ALJ found plaintiff’s fibromyalgia to be a severe impairment but
determined that the objective medical evidence of record and plaintiff’s subjective selfassessments did “not support the extreme symptoms and limitations alleged by [plaintiff].”
(R. 19.) Dr. David McLain diagnosed plaintiff with fibromyalgia and noted that she had pain
in her hands, wrists, knees, and ankles and swelling in her fingers. (R. 19, 179, 181.) The
ALJ discussed plaintiff’s Functional Disability Report, stating that plaintiff “only had some
difficulty getting out of a car, bus, train or airplane,” and considered the following evidence:

Dr. McLain conducted X-rays of the claimant’s right and left hands
revealing no periarticular osteoporosis or erosions in either hand. An MRI
of the claimant’s lumbar and thoracic spine were found to be normal. In
a health assessment questionnaire from February 2012, the claimant
indicated she only had some difficulty getting out of bed, dressing herself,
tying her shoes and doing buttons. The claimant also stated she only had
some difficulty walking outdoors on flat ground or getting in and out of
a car. In Quality of life records from June 2011, it was noted the claimant
had normal range of motion for all four extremities for her age. In
February 2012, the claimant complained of joint pain but was noted to
have stability in all extremities with no pain on inspection.
(R. 19 (citations omitted).) Having relied on substantial evidence to determine that
plaintiff’s fibromyalgia was not as limiting as alleged, the ALJ stated that he “fully
accounted for [plaintiff’s] fibromyalgia by limiting her to light exertional level work.” (Id.)
The court finds that the ALJ properly accounted for plaintiff’s fibromyalgia in his
hypothetical to the VE. Therefore, the ALJ’s hypothetical question to the VE accurately
reflected plaintiff’s RFC and the limitations the ALJ found to be properly supported by
substantial evidence. The court finds no error.
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IV. CONCLUSION
For the reasons set forth above, the decision of the Commissioner is due to be
affirmed. An Order in accordance with this Memorandum Opinion will be entered
contemporaneously herewith.
DONE this the 2nd day of July, 2015.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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