Moten v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 8/29/2018. (KAM)

FILED
2018 Aug-29 PM 04:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
TIFFANY SONTRICA MOTEN,
Plaintiff,
v.
NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. 4:17-cv-00848-JEO

MEMORANDUM OPINION
Plaintiff Tiffany Sontrica Moten brings this action pursuant to 42 U.S.C. §
405(g), seeking review of the final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying her supplemental security income (“SSI”)
benefits. (Doc. 1).1 The case has been assigned to the undersigned United States
Magistrate Judge pursuant to this court’s general order of reference. The parties
have consented to the jurisdiction of this court for disposition of the matter. See
28 U.S.C. § 636(c), FED. R. CIV. P. 73(a). Upon review of the record and the
relevant law, the undersigned finds that the Commissioner’s decision is due to be
affirmed.

1

References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of
the Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.

I. PROCEDURAL HISTORY
Plaintiff filed her application for SSI benefits in April 2014, alleging she
became disabled beginning August 17, 2013. A hearing was conducted on June
17, 2014. Plaintiff requested at the hearing that her onset date be amended to her
filing date of April 7, 2014. Her application was initially denied by an
administrative law judge (“ALJ”). The Appeals Council (“AC”) denied Plaintiff’s
request for review. (R. 1).2
II. FACTS
Plaintiff was 33 years old at the time of the ALJ’s decision. (R. 23). She
has not had substantial gainful activity at any time. (R. 21, 29, 47, 156, 160). She
alleges disability due to her back condition from a car wreck, osteoarthritis,
degnerative joint disease in her knees and legs, bursitis in her knees and legs, and
depression. (R. 159).
Following Plaintiff’s hearing, the ALJ found that she had the medically
determinable severe impairments of obesity, osteoarthritis, enthesopathy of the
knees, a history of pes bursitis, and heel spurs. (R. 21). He also found that
Plaintiff did not have an impairment or combination of impairments that met or

2

References herein to “R. __” are to the administrative record found at Docs. 6-1 through
6-12 in the court’s record.
2

equaled the severity of a listed impairment. (R. 22). He further found that
Plaintiff had the residual functional capacity (“RFC”) to perform sedentary3 work
with limitations. (R. 22-28). He determined that Plaintiff had no past relevant
work. (R. 29). He further found that based on Plaintiff’s age, education, work
experience, RFC, and the testimony of a vocational expert (“VE”), Plaintiff could
work as an charge account clerk, toy stuffer, and button reclaimer. (R. 29-30).
The ALJ concluded that Plaintiff was not disabled. (R. 30).
III. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the
Commissioner’s decision is supported by substantial evidence and whether proper
legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct.
1420, 1422 (1971); Mitchell v. Comm’r Soc. Sec., 771 F.3d 780, 782 (11th Cir.

3

Section 404.1567 defines “sedentary” work as follows:

(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.
20 C.F.R. § 404.1567.

3

2015, Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The 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.
The 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. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). The court must affirm the
ALJ’s decision if substantial evidence supports it, even if other “evidence
preponderates against the Commissioner’s findings.” See Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir.1990)).

4

IV. STATUTORY AND REGULATORY FRAMEWORK
To qualify for benefits, a claimant must show her 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 less than 12 months.” 42
U.S.C. § 1382c(a)(3)(A). 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).
Determination of disability under the Social Security Act requires a five
step analysis. 20 C.F.R. § 416.920(a). Specifically, the Commissioner must
determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014).4 The

4

Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
5

plaintiff bears the burden of proving that she was disabled within the meaning of
the Social Security Act. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005); see also 20 C.F.R. § 416.920(a) (“[The applicable] regulations place a very
heavy burden on the claimant to demonstrate both a qualifying disability and an
inability to perform past relevant work.”).
V. DISCUSSION
Plaintiff asserts that the ALJ erred in that he failed to (1) properly assess the
medical opinion of her treating physician, Dr. Dolores Victoria; (2) properly
consider her obesity pursuant to Social Security Ruling (“SSR”) 02-01; and (3)
determine that she met Listing 1.02A–major joint dysfunction. (Doc. 10 at 2).
The Commissioner responds that substantial evidence supports the ALJ’s
determinations and Plaintiff has failed to meet her burden of proving her
impairments met or equaled Listing 1.02A. (Doc. 11 at 4-19).
A.

Dr. Victoria’s Medical Opinion
1.

Guiding Principles

As noted above, Plaintiff bears the burden of proving that she is disabled
within the meaning of the Social Security Act. See 20 C.F.R. § 416.920(a);
Moore, 405 F.3d at 1211; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
Specifically, Plaintiff must provide evidence of an underlying medical condition
6

and objective medical evidence confirming either the severity of the alleged
symptoms or that the medical condition could be reasonably expected to give rise
to the alleged symptoms. See 20 C.F.R. § 419.929(a); Dyer v. Barnhart, 359 F.3d
1206, 1210 (11th Cir. 2005); Wilson, 284 F.3d at 1225-26; Edwards v. Sullivan,
937 F.2d 580, 584 (11th Cir. 1991). In analyzing the evidence, the focus is on
how an impairment affects Plaintiff’s ability to work, and not on the impairment
itself. See 20 C.F.R. § 416.929(c)(1); McCruter v. Bowen, 791 F.2d 1544, 1547
(11th Cir. 1986) (“severity of [impairments] must be measured in terms of [their]
effect upon the ability to work ... not from purely medical standards of bodily
perfection or normality”).
In assessing the weight to afford a doctor’s opinion, an ALJ may consider
numerous factors, including whether the doctor treated or examined the claimant,
the evidence presented to support her opinion, whether the doctor’s opinion is
consistent with the record as a whole, and the doctor’s specialty. See 20 C.F.R. §
416.927(c). A treating doctor’s opinion generally is entitled to more weight, and
an ALJ must show “good cause” for discounting a treating doctor’s opinion. See
20 C.F.R. § 416.927(c)(2); see also Phillips v. Barnhart, 357 F.3d 1232, 1240
(11th Cir. 2003); Mace v. Comm’r, Soc. Sec. Admin, 605 F. App’x 837, 841 (11th
Cir. 2015). However, an ALJ has discretion to give a treating physician’s opinion
7

less than controlling weight if the medical evidence does not support it or it is
inconsistent with other substantial evidence in the case record. See 20 C.F.R. §
416.927(c)(2)-(4); SSR 96-2p, 1996 WL 374188, at *2; see also Mace, 605 F.
App’x at 641. Opinions on some issues, however, such as whether Plaintiff is
unable to work, 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. § 416.927(d); see Bell v. Bowen, 796 F.2d 1350, 1353-54
(11th Cir. 1986); Lee v. Comm’r, Soc. Sec. Admin., 551 F. App’x 539, 542 (11th
Cir. 2014). Opinions on issues reserved to the Commissioner, even when offered
by a treating physician, are not entitled to controlling weight or special
significance. See 20 C.F.R. § 416.927(d)(3).
2.

Background

Plaintiff initially argues that the ALJ failed to accord proper weight to Dr.
Victoria’s opinion as a treating physician and the ALJ failed to show good cause
for affording her opinion only partial weight. The record demonstrates that Dr.
Victoria is a treating physician with Quality of Life Health Services (“Quality of
Life”). She has been treating Plaintiff since March 2010 for various issues,
including low back pain, morbid obesity, knee pain, and hypertension. (R. 506-07,
8

626). In December 2013, Plaintiff reported hurting her left knee when she fell
down stairs in June 2013. (R. 427). She also reported that she had been to the
emergency room several times. X-rays were taken and showed inflammation of
the left knee. Dr. Victoria treated the injury with ibuprofen and Mobic, but that
did not provide Plaintiff with any relief. (Id.) She complained of swelling and
difficulty walking. (Id.) Her physical examination showed left knee swelling, a
reduced range of motion, and tenderness. (R. 429).
Plaintiff had an MRI performed on her knees on January 22, 2014. The
MRI showed “underlying degnerative changes in both knees, slightly more
prominent on the left with minor marginal osteophytic spurring and tibial plateau
sclerosis.” (R. 444). There was “[n]o distinct additional acute bony or soft tissue
pathology ... evident.” (Id.)
Plaintiff was also examined initially by Dr. Daniel R. Sparks on February
12, 2014, due to complaints of left knee pain. She reported that her pain began in
February 2013, when she fell off her porch. (R. 460). Dr. Sparks’s examination
determined that there was no swelling, bruising, or effusion. Plaintiff had normal
range of motion and no instability. (Id.) X-rays showed mild arthritis and “varus
with mild narrowing and small osteophytes.” (Id.) He administered an injection
of Celestone and Marcaine. (R. 461). Plaintiff was diagnosed with “arthritis9

[degnerative joint disease] of the knee.” (Id.) She was seen by Dr. Sparks one
week later. She complained that the injection did not relieve her pain, but made
her “knee numb.” (R. 459). Dr. Sparks recommended Lodine and physical
therapy. (R. 308, 459). He also recommended that she have an apartment on the
ground floor for easy accessibility. (R. 376).
Plaintiff attended physical therapy on February 26, 2014. During her initial
session, Plaintiff ambulated without assistance and exhibited a limp. (R. 310).
She reported pain at a level of 8/10. Her left lower extremity strength was “3+/5”
and her right strength was “4/5.” (R. 310-11). She asked the therapist if a cane
would help. She was told that a rolling walker would be better because it would
redistribute her weight to her hands. (R. 310, 317). She was also told that weight
loss was important in decreasing her knee pain. (R. 311, 318). She participated in
physical therapy on February 27. She reported a pain level of 7/10. (R. 321). Due
to the death of her mother, her next therapy session was not until March 24. She
reported a pain level of 6/10 during that session. (R. 323). She also stated that she
intended to ask Dr. Sparks for a prescription for a cane. (Id.)
Dr. Sparks saw Plaintiff on March 25, 2014. He wrote her a prescription for
a cane. (R. 377). Plaintiff returned to Dr. Sparks on April 2, 2014, complaining
that she fell at the previous appointment and hurt her left knee. Dr. Sparks’s
10

examination of Plaintiff revealed no swelling, bruising, or instability. (R. 458).
He also noted a normal range of motion in her left knee. (Id.) He diagnosed
Plaintiff with pes bursitis. (Id.) He wrote a prescription for a patellar stabilization
brace on April 9. (R. 378).
Plaintiff was also seen by Dr. Victoria on April 3. Plaintiff complained of
knee and leg pain. Dr. Victoria’s examination revealed right knee tenderness with
a moderately reduced range of motion and left knee swelling with moderate pain
on motion. (R. 438). Plaintiff was diagnosed with left leg joint pain, enthesopathy
of the knee, chronic morbid obesity, and lumbago. (Id.) Dr. Victoria completed
an “Application for Disability Access Parking Privileges” form for Plaintiff during
this visit, stating that she cannot walk two hundred feet without stopping, she
cannot walk without the use of assistance, and she is severely limited in her ability
to walk due to an arthritic, neurological, or orthopedic condition. (R. 379). Dr.
Victoria completed a Physical Residual Functional Capacity Assessment form on
April 10, 2014, in which she diagnosed Plaintiff with osteoarthritis, degenerative
joint disease, and pes bursitis. She assessed that Plaintiff would be able to lift and
carry ten pounds occasionally and less than ten pounds frequently; stand and/or
walk less than two hours in an eight-hour day and must periodically alternate
sitting and standing to relieve pain or discomfort; limited pushing and or pulling

11

with her lower extremities; never climbing, balancing, stooping, kneeling,
crouching, or crawling; limited reaching due to use of a cane; and limited gross
manipulation. She also stated Plaintiff has bone spurs with bone-on-bone
dysfunction; and should avoid moderate exposure to extremes of temperature,
wetness, humidity, noise, and vibration; and avoid all exposure to pulmonary
irritants and hazards. (R. 380-87).
Plaintiff was seen at Quality of Life on April 14, 2014, with complaints of
bilateral leg pain. (R. 440). She stated she was going to physical therapy and that
she was trying to avoid surgery on both knees. She was walking with a cane and
stated that she could not work due to pain. (Id.) She was instructed to continue
her physical therapy. (R. 442). Plaintiff saw Dr. Sparks on April 16, 2014, after
she was told by the physical therapist that she “was too swollen and having too
much pain.” (R. 457). Dr Sparks recommended “quad strengthening exercises.”
(Id.)
Plaintiff continued her physical therapy through April 30, 2014. (R. 46793). On April 23, 2014, the therapy notes state that Plaintiff “should be able to
achieve the long term goal of ambulating further distances with a rolling walker.”
(R. 490). Accordingly, a prescription for a walker was requested from her
physician. (Id.)
12

Plaintiff was seen by Dr. Victoria on May 8, 2014, for a monthly checkup
on her knees. Plaintiff complained of bilateral knee pain. (R. 509). The record
also shows that a legal assistant requested a letter concerning Plaintiff’s disability
from Dr. Victoria. (Id.) Dr. Victoria prepared a “To whom it may concern” letter,
stating, in pertinent part, that Plaintiff
was evaluated and treated by an Orthopedics [sic] and was diagnosed
with severe Osteoarthritis of both knees and Degenerative Disc
Disease of the low back. She is in constant pain and extremely
limited in walking and performing household chores. She is also
unable to return to her usual job and for this reason please assist her
to obtain her disability benefit as soon as possible.
(R. 505).
Plaintiff continued her treatment at Quality of Life. On June 23, 2014, she
was seen for her monthly checkup. She exhibited bilateral knee swelling;
moderately reduced range of motion of the right knee; and moderate pain with
motion on the left, with no sensory loss and preserved and symmetric reflexes. (R.
521). The notes also reflect that Plaintiff had been “seen by orthopedics but was
told no surgical intervention was advised.” (R. 519). Plaintiff again was told of
the need for a weight-loss program. She stated she would “try to obtain info for
bariatric surgery. (Id.) She returned to the clinic on September 9, 2014, with
complaints of a cold. A visual overview of all four of her extremities showed they
were normal with no edema. (R. 531). On September 25, 2014, she returned for a
13

checkup concerning her chronic pain. (R. 534). During the visit, she exhibited
moderate bilateral pain. She stated it occurred constantly and was worsening.
(Id.) During her November 3, 2014 visit, she presented with right leg pain. (R.
541). She had good range of motion of the right knee, with tender joints, slightly
swollen, and no heat or discoloration. (R. 548). Her right knee x-rays on
November 6, 2014, were negative. (R. 27). On December 8, 2014, and February
18, 2015, a visual overview of her extremities indicated no abnormalities and no
edema.5 (R. 558, 566). She denied experiencing pain in December 2014 and
alleged level-two pain during her February 2015 visit. (R. 556, 564). During her
March 19, 2015 monthly visit, her knees were “swelling” with a mildly reduced
range of motion. (R. 577). On April 30, 2015, she presented for a follow-up visit
for musculosketal pain. (R. 594). During the examination, she denied
experiencing any pain. (R. 598). In June 2015, she complained of joint pain, but
her musculoskeletal and neurological findings were normal. (R. 610). Plaintiff’s
September 21, 2015 three-month check-up revealed normal extremities. (R. 612,
616). She did complain, however, that her knee pain was worse over the past two
days. (R. 612).

5

These visits involved complaints of a cough or cold. (R. 552, 560).
14

3.

Analysis

The issue is whether the ALJ afforded proper weight to Dr. Victoria’s
opinions. The court finds that he did.
It is undisputed that the ALJ considered Dr. Victoria’s opinions in assessing
Plaintiff’s RFC. The dispute concerns the weight afforded those opinions. Dr.
Victoria completed a disability parking application and physical RFC assessment
in April 2014. (R. 26, 379-87). She stated in the parking application that Plaintiff
could not walk 200 feet without stopping and could not walk without the use of an
assistive device. (R. 26, 379). In the RFC assessment, she asserted that Plaintiff
could not work at all. She also stated that she did not recommend sedentary work
due to Plaintiff’s loss of flexibility in her legs and knees. (R. 385). Dr. Victoria
further stated that Plaintiff “has bone spurs, bone on bone dysfunction and this
situation causes her severe pain due to all [the] pressure and causes her to be stiff
and lose[] all motion due to her joints.” (R. 382).
As noted, the ALJ gave Dr. Victoria’s opinions partial weight. (R. 27). He
determined that the medical evidence was not fully consistent with the foregoing
opinions. The court agrees. The evidence shows only mild to moderate left knee
changes, and even less severe findings in her right knee. The record does not
support a finding of “bone on bone dysfunction.” (Id.) The ALJ also found that
15

the more recent treatment notes show improved physical functioning after Plaintiff
had lost some weight. (R. 27). Plaintiff has failed to adequately challenge this
finding. Her pain was controlled for the most part by pain medication. (R. 438,
509-12, 526-49, 552-59). Her most recent pain score summary from her medical
records does not demonstrate constant disabling pain.6 Additionally, while
Plaintiff uses a cane and a walker, and experiences some pain and swelling, there

6

Plaintiff’s June 2015 summary shows the following:
Date

Pain Score

4/30/2015
4/21/2015
2/18/2015
12/08/2014
10/23/2014
9/25/2014
6/23/2014
5/08/2014
4/14/2014
4/03/2014
12/19/2013
12/18/2013
10/29/2013
10/14/2013
2/15/2013
1/10/2013
1/03/2013
11/07/2012
10/31/2012
9/14/2012
4/09/2010
3/24/2010

0/10
0/10
2/10
0/10
7/10
7/10
3/10
9/10
4/10
10/10
2/10
3/10
2/10
2/10
0/10
2/10
0/10
3/10
2/10
0/10
1/10
2/10

(R. 609-10). Plaintiff’s pain levels were not recorded during her June and September 2015 visits.
(R. 607-17).
16

is no evidence in her more recent records that she cannot perform sedentary work
with the limitations proposed by the RFC. To the contrary, her treatment has been
conservative, her MRI and x-rays indicate only mild to moderate findings, her
more recent visits show mostly normal findings.7 The ALJ’s opinion is further
supported by the opinion of consultative examiner Dr. Morton S. Rickless who
examined Plaintiff on November 23, 2015. The ALJ articulated his evaluation as
follows:
Examination revealed no deformity or tenderness of the cervical or
dorsolumbar spine with normal range of motion of the cervical spine.
Upper and lower extremity strength was 5/5 with normal range of
motion. Sensation, circulation, and reflexes were normal. She
exhibited an antalgic gait and repo1ied she was unable to walk
without a walker. Dr. Rickless wrote, “The necessity of this is
difficult to ascertain, certainly I have seen people ambulate with far
worse looking knees than she has.” Straight leg raising was negative,
and there was no atrophy of significance in the lower extremities.
X-rays of the left knee revealed osteophytes with medial joint space
and patella femoral problems. X-rays of the right knee revealed
minimal involvement of the medial joint space with a1ihritis. Dr.
Rickless diagnosed mild to moderate arthritis in the left knee. He
concluded that, based on her presentation, she could sit; would
require an assistive device for ambulation; and that she can handle
while sitting....
(R. 27).
The ALJ fully performed his responsibilities in evaluating Dr. Victoria’s

7

The record does indicate that Plaintiff may need a knee replacement in the future. (R.
57-58). However, that does not demonstrate disability at this juncture.
17

opinions. He considered her opinions along with the other medical evidence of
record. He evaluated all the evidence in determining Plaintiff’s RFC. Plaintiff has
not adequately challenged that finding via the medical evidence. In sum, the court
cannot find, under the record, that Plaintiff is entitled to any relief. Substantial
evidence supports the ALJ’s decision.8
B.

Obesity

Plaintiff next asserts that the ALJ failed to give her obesity proper
consideration pursuant to SSR 02-01. (Doc. 10 at 22; Doc. 12-10). Specifically,
she argues that the ALJ “did not adequately explain how her gross weight would
affect her ability to function in a work setting.” (Doc. 10 at 23; Doc. 22-10). The
Commissioner counters that the ALJ adequately considered and evaluated
Plaintiff’s obesity. (Doc. 11 at 18-19).
It is undisputed that Plaintiff suffers from obesity. The ALJ acknowledged
this in his opinion. (R. 21, 24, 27). The ALJ noted that “there are exhortations to
[Plaintiff] from medical professionals that she lose weight.” (R. 27). He also
noted, that “it appears that the later exhibits in her file do show some measure of
weight loss and, unsurprisingly, corresponding improvement in function or
8

To the extent Plaintiff challenges the fact that the ALJ noted Dr. Victoria “veer[ed] into
a position of advocacy,” in her May 2014 letter when she stated, someone “please assist
[Plaintiff] to obtain her disability benefit as soon as possible,” the court finds no error under the
circumstances. (R. 27, 505).
18

reduction of pain.” (Id.) He further noted that there is evidence of Plaintiff’s
“arthritic changes of the knee, obesity, bursitis - all affecting her physical
abilities.” (Id.) He concluded “that those limitations are [not] in the nature of
utterly disabling injuries.” (Id.) In assessing Plaintiff’s RFC, the ALJ noted, “The
undersigned credits [Plaintiff’s] obesity and history of bursitis and heel spurs in
her feet as complicating factors with respect to mobility. Therefore, giving
[Plaintiff] the benefit of the doubt, the undersigned has limited her to total
standing and walking between one to two hours over the course of a day.” (R. 2829). In support of this conclusion, he states, “She has managed to attend her
doctors’ appointments and examinations either unassisted or with the use of an
assisted device. She can ambulate sufficiently to get herself to the workplace and
to her work station. The employment for which she is fit would be, given the
foregoing, ‘sit-down’ types of jobs. She would need to be able to sit at her work
station and perform activities requiring little exertion.” (R. 29).
Thus, the ALJ specifically accounted for Plaintiff’s obesity in his RFC
evaluation as he is required to do. Plaintiff has failed to demonstrate how her
obesity warranted further restrictions than those found by the ALJ. See 42 U.S.C.
§ 423(d)(5); Dougherty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (“The
burden is primarily on the claimant to prove that he is disabled, and therefore
19

entitled to receive Social Security disability benefits.”). Because the ALJ did
consider Plaintiff’s obesity and because that decision is supported by substantial
evidence, this court cannot “decide the facts anew, reweigh the evidence, or
substitute [its] judgment for that of the [Commissioner].” Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990). Plaintiff, therefore, is entitled to no relief on
this claim.
C.

Listing 1.02A

Plaintiff next contends that the ALJ should have found her impairments met
Listing 1.02A. (Doc. 10 at 23-24). The Commissioner argues that Plaintiff has
failed to demonstrate that her impairments meet or equal a listing. (Doc. 11 at 411). The court agrees with the Commissioner.
As already stated, Plaintiff bears the responsibility of proving her
impairments meet or equal a listing.
To “meet” a Listing, a claimant must have a diagnosis included in the
Listings and must provide medical reports documenting that the
conditions meet the specific criteria of the Listings and the duration
requirement.... To “equal” a Listing, the medical findings must be “at
least equal in severity and duration to the listed findings.” ....
Wilson, 284 F.3d at 1224 (citations omitted). The United States Supreme Court
has held, “For a claimant to show that his impairment matches a listing, it must
meet all of the specified medical criteria. An impairment that manifests only some
20

of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley,
493 U.S. 521, 530 (1990). The Court further stated, “For a claimant to qualify for
benefits by showing that his unlisted impairment, or combination of impairments,
is ‘equivalent’ to a listed impairment, he must present medical findings equal in
severity to all the criteria for the one most similar impairment.” Id. at 531. “A
claimant cannot qualify for benefits under the ‘equivalence’ step by showing that
the overall functional impact of his unlisted impairment or combination of
impairments is as severe as that of a listed impairment.” Id.
Listing 1.02A provides:
Major dysfunction of a joint(s) (due to any cause): Characterized by
gross anatomical deformity (e.g., subluxation, contracture, bony or
fibrous ankylosis, instability) and chronic joint pain and stiffness with
signs of limitation of motion or other abnormal motion of the affected
joint(s), and findings on appropriate medically acceptable imaging of
joint space narrowing, bony destruction, or ankylosis of the affected
joint(s). With:
A. Involvement of one major peripheral
weight-bearing joint (i.e., hip, knee, or ankle), resulting
in inability to ambulate effectively, as defined in
1.00B2b....
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02A. An inability to ambulate effectively is
defined as follows:
an extreme limitation of the ability to walk; i.e., an impairment(s) that
interferes very seriously with the individual’s ability to independently
initiate, sustain, or complete activities. Ineffective ambulation is
21

defined generally as having insufficient lower extremity functioning
(see 1.00J) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper
extremities.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2b(1).
To ambulate effectively, individuals must be capable of sustaining a
reasonable walking pace over a sufficient distance to be able to carry
out activities of daily living. They must have the ability to travel
without companion assistance to and from a place of employment or
school. Therefore, examples of ineffective ambulation include, but
are not limited to, the inability to walk without the use of a walker,
two crutches or two canes, the inability to walk a block at a
reasonable pace on rough or uneven surfaces, the inability to use
standard public transportation, the inability to carry out routine
ambulatory activities, such as shopping and banking, and the inability
to climb a few steps at a reasonable pace with the use of a single hand
rail. The ability to walk independently about one’s home without the
use of assistive devices does not, in and of itself, constitute effective
ambulation.
Id. § 1.00B2b(2).
In this instance, the ALJ expressly considered whether Plaintiff met Listing
1.02. (R. 22). He determined Plaintiff did not meet the criteria of “findings on
appropriate medically acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint(s) with inability to ambulate
effectively for weight-bearing joints.” (Id.) The ALJ discussed the relevant
medical evidence, including that Plaintiff used a cane and received a
recommendation for a walker. He correctly concluded, however, that the medical
22

evidence failed to show she was unable to ambulate effectively, as this term is
defined in the Listings, for a continuous period of twelve months. See 20 C.F.R.
pt. 404, subpt. P, app. 1, §§ 1.00B2b, 1.00J, 1.00H.
Plaintiff initially argues that because she “is on a rolling walker, it appears
obvious that she cannot ambulate effectively” for purposes of the Listing. (Doc.
10 at 23). In support of this argument, she cites to her January 2014 MRI report.
(Id. (citing R. 375, 444)9). The court finds that this evidence is not sufficient to
challenge the ALJ’s determination.
Concerning the MRI, the report indicates, at most, minor to moderate
changes in her knees. Contrary to Plaintiff’s conclusory assertion, it is not
obvious from the MRI or other evidence that she cannot ambulate effectively as
discussed in the Listing. The MRI does not suggest a major dysfunction of her
knees.
Regarding her use of a cane, the evidence shows that in February 2014,
Plaintiff mentioned the use of a cane to the therapist. The therapist told her that a
rolling walker would be better because it would allow her to better distribute her
weight. (R. 310). Plaintiff stated that her insurance would not pay for any
assistance devices. (Id.) Plaintiff was prescribed a cane on March 25, 2014. This

9

The court notes that the cites are to a single MRI report dated January 22, 2014.
23

evidence is not enough to demonstrate that she meets or equals Listing 1.02A.
Regarding the walker, the evidence shows that the physical therapy
department recommended on April 17, 2014, that Plaintiff receive a walker. (R.
466, 590). A prescription for a walker was written after she fell at the doctor’s
office. (R. 55, 628). On April 28, 2014, the treatment notes reflect that Plaintiff
entered the therapy facility on a walker. Plaintiff reported that it was “helping
some.” (R. 492). She stated that “it’s taking pressure off my knees.” (Id.)
However, the record of her next visit on April 30, 2014, does not reflect that she
was still using the walker. (R. 466, 486-95).
As noted above, Plaintiff continued receiving treatment from Dr. Victoria
for her complaints of knee pain throughout 2014. (R. 26-27, 509-12, 519-23,
526-49, 552-59). Dr. Victoria’s treatment notes showed some reduced knee range
of motion and knee swelling upon examination, and Plaintiff was observed to be
using a cane once during a November 2014 visit. (R. 509-12, 519-23, 526-49,
552-59). Nothing in these treatment records, however, indicates Plaintiff required
a walker or other assistive device to ambulate in a manner that limited the
functioning of both her upper extremities. (Id.)
Plaintiff’s February 2015 visit to Quality of Life for cold symptoms did not
show any ambulation complaints in the review of symptoms and showed
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unremarkable musculoskeletal and neurological findings upon examination. (R.
27, 560-66). Plaintiff reported some joint problems and had some reduced lower
extremity range of motion upon examination in a follow-up in March 2015, but
she was not observed to be using any assistive device. (R. 571-77). In an April
2015 follow-up for her knee condition, Plaintiff rated her pain 0/10. (R. 27,
594-98). Plaintiff’s remaining visits to Quality of Life in June and September 2015
showed complaints of joint pain but normal musculoskeletal and neurological
findings upon examination. Treatment notes from these visits fail to include any
observations that Plaintiff was using any assistive device that limited functioning
of both upper extremities. (R. 27, 607, 610, 612, 616).
The Commissioner argues that Plaintiff’s assertions in support of her claim
that she meets Listing 1.02A based upon her use of a walker are insufficient.
(Doc. 11 at 6-7). Specifically, the Commissioner argues that she simply asserts
“that she ‘is on a rolling walker’” and she has not shown that she has needed the
walker for a continuous period of twelve months. (Id. at 7).
Concerning the first contention, the Commissioner correctly notes that the
conclusory statement that Plaintiff is on a walker provides the court with very little
evidence with which to work. This is particularly true where the medical record
shows no consistency in its use over an extended period. Additionally, nothing in
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the therapy treatment notes reflects that Plaintiff could not perform sedentary work
with the use of an assistive device for ambulation as found by the ALJ. (R. 22,
28). Still further, there is nothing that indicates that such a device would limit the
functioning of her upper extremities while she was doing sedentary work.
Finally, Plaintiff asserts that her impairments equal Listing 1.02A. (Doc. 10
at 24). In support of this argument, she references Program Operations Manual
System (“POMS”) DI 24505.015, First Example. In that example, it was
explained that a claimant’s condition that included documented evidence of
“difficulty walking, chronic pain, and limitation of motion in the left knee” and
shortness of breath when considered in conjunction with her obesity, “is at least of
equal medical significance to the required findings in listing 1.02A.” (R. 258-59).
In response, the Commissioner initially asserts that Plaintiff fails to develop this
argument beyond referencing a brief she submitted to the ALJ in December 2015
and a cursory reference to the claim in her brief to this court. (Doc. 11 at 9 (citing
R. 251-52)). Accordingly, the Commissioner concludes that by failing to
adequately develop this argument, Plaintiff has waived it. (Id. (citing N.L.R.B. v.
McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in
a perfunctory manner, without supporting arguments and citation to authorities,
are generally deemed to be waived.”) and Outlaw v. Barnhart, 197 F. App’x 825,
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828 n.3 (11th Cir. 2006) (noting claimant waived issue because he did not
elaborate on claim or provide citation to authority regarding claim). The court
finds that Plaintiff arguably has adequately raised this argument.10 Accordingly,
the court will address the Commissioner’s second argument – that Plaintiff’s brief
to the ALJ and the POMS reference do not establish that her impairments equal
Listing 1.02A. (Doc. 11 at 9).
Plaintiff’s initial brief in this court and her December 2015 brief to the ALJ
do not specify how her specific impairments equal Listing 1.02A other than to
assert that POMS DI 24505.015 identifies an example similar to Plaintiff’s
circumstance. (Doc. 10 at 24). The Commissioner asserts that this section no
longer exists. (Doc. 11 at 9-10 (citing SSA’s Policy Information Site – POMS,
https://secure.ssa. gov/ apps10/poms.nsf/subchapterlist!openview&
restricttocategory=04245)).11 She further argues that this obsolete section does not
establish medical equivalence for Plaintiff. (Doc. 11 at 10). The court agrees for a
number of reasons.
First, even assuming this POMS section is relevant here, it does not

10

Plaintiff does offer some argument and evidentiary cites in support of her contention in
her reply brief. (Doc. 12 at 11).
11

Plaintiff does not challenge this contention. It appears from a review of the POMS that
DI 24508.10 (“Impairment or Combination of Impairments Equaling a Listing – Medical
Equivalence”) is the correct reference in this case.
27

establish medical equivalence for Plaintiff. This POMS section, in pertinent part,
discusses how to determine whether a claimant’s impairment or impairments
medically equal a Listing. (See R. 256-58). It also provides rationale examples
for medical equivalence determinations. As noted above, it includes an example
that a claimant’s impairments equaled Listing 1.02A where the record evidence
included observations from a field office claims representative and a social worker
that the claimant used a walker and could walk only a few steps at a time before
needing to stop due to shortness of breath. (R. 258-59). This example, however,
is not dispositive of the issue. The facts in this case must be specifically
examined. When the facts from the present record are reviewed, as discussed
previously herein, the court finds that they do not support Plaintiff’s conclusion
that her circumstances equal Listing 1.02A. Second, the current POMS – DI
24508.010 – no longer includes the example cited by Plaintiff and states that the
examples are “of cases listed in other sections of the ... POMS in which medical
equivalence may be appropriate.” (See SSA – POMS: DI 24508.010 at § F
(http://policy.ssa .gov/ poms.nsf/lnx/ 0424508010) (last revised Feb. 13, 2018)
(italics added)). The court finds that the ALJ did not err in finding that Listing
1.02A was met or equaled.
While Plaintiff has issues associated with her knees, there is substantial
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evidence to support the ALJ’s RFC determination regarding Listing 1.02. Thus
Plaintiff failed to show she met all the criteria required to meet or equal Listing
1.02A.
VI. CONCLUSION
For the reasons set forth above, the undersigned concludes that the decision
of the Commissioner is due to be affirmed. An appropriate order will be entered
separately.
DONE, this the 29th day of August, 2018.

______________________________
JOHN E. OTT
Chief United States Magistrate Judge

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