Chi v. Social Security Administration, Commissioner
MEMORANDUM OPINION as more fully set out. Signed by Judge C Lynwood Smith, Jr on 08/09/18. (SPT )
2018 Aug-09 AM 11:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
DONNA MARIE CHI,
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Case No. 4:17-cv-1591-CLS
Claimant, Donna Chi, commenced this action on September 15, 2017, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
thereby denying her claim for supplemental security income benefits.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ: (1) failed to correctly assess the intensity and
persistence of her symptoms pursuant to Social Security Ruling 16-3p; (2) failed to
properly consider her obesity; and (3) rendered a decision that was not based upon
substantial evidence. She also asserts that the Appeals Council failed to appropriately
consider new evidence. Upon review of the record, the court concludes that these
contentions are without merit, and the Commissioner’s decision should be affirmed.
Social Security Ruling 16-3p
Claimant first asserts that the ALJ failed to correctly assess the intensity and
persistence of her symptoms pursuant to Social Security Ruling 16-3p, which became
effective on March 28, 2016.
Social Security Ruling 16-3p was intended to supersede former Ruling 96-7p,
and was enacted for the purpose of providing “guidance about how we evaluate
statements regarding the intensity, persistence, and limiting effects of symptoms in
disability claims under Titles II and XVI of the Social Security Act.” SSR 16-3p,
2016 WL 1119029 (March 16, 2013), at *1. Specifically, the Ruling
eliminat[ed] the use of the term “credibility” from [the Social Security
Administration’s] sub-regulatory policy, as our regulations do not use
this term. In doing so, we clarify that subjective symptom evaluation is
not an examination of an individual’s character. Instead, we will more
closely follow our regulatory language regarding symptom evaluation.
Consistent with our regulations, we instruct our adjudicators to
consider all of the evidence in an individual’s record when they evaluate
the intensity and persistence of symptoms after they find that the
individual has a medically determinable impairment(s) that could
reasonably be expected to produce those symptoms. We evaluate the
intensity and persistence of an individual’s symptoms so we can
determine how symptoms limit ability to perform work-related activities
for an adult . . . .
In evaluating an individual’s symptoms, our adjudicators will not
assess an individual’s overall character or truthfulness in the manner
typically used during an adversarial court litigation. The focus of the
evaluation of an individual’s symptoms should not be to determine
whether he or she is a truthful person. Rather, our adjudicators will
focus on whether the evidence establishes a medically determinable
impairment that could reasonably be expected to produce the
individual’s symptoms and given the adjudicator’s evaluation of the
individual’s symptoms, whether the intensity and persistence of the
symptoms limit the individual’s ability to perform work-related
activities or, for a child with a title XVI disability claim, limit the child’s
ability to function independently, appropriately, and effectively in an
Id. at *1-2, 10 (alterations and ellipses supplied).
In the present case, the ALJ found that claimant had medically determinable
impairments that could reasonably be expected to cause symptoms like those claimant
alleged, but that “claimant’s statements concerning her symptoms — including their
intensity, persistence, and limiting effects — are not entirely consistent with the
medical evidence and other evidence in the record for the reasons explained in this
decision.”1 Claimant asserts that the ALJ’s use of the phrase “not entirely consistent
with the medical evidence” does not satisfy the requirements of SSR 16-3p, and that
the ALJ’s decision lacked the analysis and specific findings required by that ruling.
Specifically, claimant asserts that the ALJ failed to discuss her “long history of
treatment for anxiety and depression,”2 and that the ALJ placed too much weight on
the lack of objective medical evidence to support claimant’s description of her
symptoms. Those arguments are not supported by the record. To the contrary, the
record reflects that the ALJ carefully considered whether all of the records relating
to claimant’s physical and mental health conditions — including carpal tunnel
syndrome, obstructive sleep apnea, knee popping, lower back pain, asthma, chronic
obstructive pulmonary disease, obesity, depression, anxiety, and post-traumatic stress
disorder — were consistent with claimant’s subjective complaints. The ALJ also
considered statements from the state agency medical and psychological consultants
who reviewed claimant’s file. She did not impermissibly assess claimant’s general,
or overall, character for truthfulness.
Claimant next contends that the ALJ improperly considered her obesity. The
ALJ was required to evaluate the effect of claimant’s obesity on her residual
Doc. no. 11 (Claimant’s Brief), at 20.
functional capacity in accordance with Social Security Ruling 02-1p, which states the
Obesity can cause limitation of function. The functions likely to
be limited depend on many factors, including where the excess weight
is carried. An individual may have limitations in any of the exertional
functions such as sitting, standing, walking, lifting, carrying, pushing,
and pulling. It may also affect ability to do postural functions, such as
climbing, balancing, stooping, and crouching. The ability to manipulate
may be affected by the presence of adipose (fatty) tissue in the hands
and fingers. The ability to tolerate extreme heat, humidity, or hazards
may also be affected.
The effects of obesity may not be obvious. For example, some
people with obesity also have sleep apnea. This can lead to drowsiness
and lack of mental clarity during the day. Obesity may also affect an
individual’s social functioning.
An assessment should also be made of the effect obesity has upon
the individual’s ability to perform routine movement and necessary
physical activity within the work environment. Individuals with obesity
may have problems with the ability to sustain a function over time. As
explained in SSR 96-8p (“Titles II and XVI: Assessing Residual
Functional Capacity in Initial Claims”), our RFC assessments must
consider an individual’s maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and continuing
basis. A “regular and continuing basis” means 8 hours a day, for 5 days
a week, or an equivalent work schedule. In cases involving obesity,
fatigue may affect the individual’s physical and mental ability to sustain
work activity. This may be particularly true in cases involving sleep
The combined effects of obesity with other impairments may be
greater than might be expected without obesity. For example, someone
with obesity and arthritis affecting a weight-bearing joint may have
more pain and limitation than might be expected from the arthritis alone.
For a child applying for benefits under title XVI, we may evaluate
the functional consequences of obesity (either alone or in combination
with other impairments) to decide if the child’s impairment(s)
functionally equals the listings. For example, the functional limitations
imposed by obesity, by itself or in combination with another
impairment(s), may establish an extreme limitation in one domain of
functioning (e.g., Moving about and manipulating objects) or marked
limitations in two domains (e.g., Moving about and manipulating objects
and Caring for yourself).
As with any other impairment, we will explain how we reached
our conclusions on whether obesity caused any physical or mental
SSR 02-1p, 2000 WL 628049, at *6-7.
The ALJ recognized that, at 64 to 65 inches tall and at least 400 pounds at all
times relevant to her current claim, claimant is morbidly obese,3 and she evaluated
claimant’s obesity at several stages of the administrative analysis. She included
morbid obesity as one of claimant’s severe impairments.4 She evaluated whether
claimant’s obesity was medically equivalent to one of the listing impairments,
concluding that it was not.5 She also included the following detailed analysis of the
effect of claimant’s obesity on her other impairments:
Obesity can cause limitation of function. The functions likely to be
limited depend on many factors, including where the excess weight is
carried. An individual may have limitations in any of the exertional
functions such as sitting, standing, walking, lifting, carrying, pushing,
and pulling. Obesity may also affect the ability to do postural functions
such as climbing, balancing, stooping, and crouching. The ability to
manipulate may be affected by the presence of fatty tissue in the hands
and fingers. The combined effects of obesity with other impairments
may be greater than might be expected without obesity. For example,
as Dr. Stewart alludes, someone with obesity may have more pain and
limitation than might be expected otherwise during weight-bearing
activities. The ability to tolerate extreme heat, humidity, or hazards may
also be affected.
The undersigned has considered the claimant’s obesity in crafting
the physical residual functional capacity assessment herein. In that
regard, there is little doubt that the claimant’s morbid obesity plays a
significant role in her lower back and lower extremity complaints,
including those involving her knees and left leg. On the other hand, as
set forth above, multiple examiners have found range of motion and
strength in her extremity joints and back to be full and normal with no
crepitus, pain, or arthritic deformities in any joint and no evidence of
muscle atrophy from disuse. Although the claimant has demonstrated
some paraspinal muscle spasms and decreased lumbar ROM on rare
occasions, straight leg raising has been negative bilaterally, and she
remains neurologically intact. The undersigned has also considered the
effects of the claimant’s obesity on her pulmonary function. In this
regard, it is well established that obesity affects the cardiovascular and
respiratory systems because of the increased workload the additional
body mass places on these systems. Obesity makes it harder for the
chest and lungs to expand which means the respiratory system has to
work harder to provide needed oxygen. This, in turn, makes the heart
work harder. Because the body is working harder at rest, its ability to
perform additional work is less than would otherwise be expected. The
undersigned has addressed the claimant’s medically determinable
musculoskeletal (as well as her left leg/knee complaints) and pulmonary
impairments and her obesity by limiting her to sedentary work with the
additional exertional, postural, and environmental limitations set forth
above. Although the claimant has alleged that she must change position
frequently, there is no objective evidence supporting that allegation. It
is also inconsistent with her report that she spends most of the day
This court concludes that the ALJ’s detailed explanation satisfies the
requirements of SSR 02-1p. Claimant may disagree with the ALJ’s conclusion about
how severely her obesity affects her functional limitations, but she has failed to
demonstrate that the ALJ’s decision is not supported by substantial evidence, or that
the record supports the imposition of more severe limitations than those assessed by
Claimant next asserts that the ALJ’s decision was not supported by substantial
evidence because the hypothetical question the ALJ presented to the vocational expert
during the administrative hearing did not include all of claimant’s limitations and
Specifically, the ALJ asked the vocational expert to assume a
hypothetical individual of claimant’s age, education, and work experience who
would be limited to sedentary work as that term is defined in the
regulations, could occasionally climb ramps and stairs, never climb
ladders, ropes or scaffolds, can occasionally balance, stoop and crouch,
but could never kneel or crawl. Further assume the individual could
have occasional exposure to humidity and wetness, extreme heat but no
exposure to dust, odors, fumes and pulmonary irritants, and no exposure
to unprotected heights and (INAUDIBLE), assume the individual can
occasionally push and pull with the left lower extremity, would be
limited to performing simple routine tasks. But should avoid quick
decision making and multiple demands, and not work in loud,
distracting, fast-paced, or strict quota-based work requirements.
Tr. 62. The vocational expert responded that such an individual would be able to
perform jobs — including document preparer, table worker, and loader — that exist
in significant numbers in the national and regional economies.6 The ALJ’s residual
functional capacity finding largely mirrored the hypothetical question,7 and the ALJ
relied upon that finding to conclude that claimant was not disabled.
Claimant first contends that the hypothetical question (and the corresponding
residual functional capacity finding) did not accurately state her limitations due to
obesity. That argument is not persuasive because, as discussed above, the ALJ
properly accounted for claimant’s obesity when determining her residual functional
Claimant also contends that the ALJ failed to account for her psychological
problems, but the ALJ addressed those issues by stating that claimant should avoid
quick decision making; multiple demands; loud, distracting, or fast-paced work
environments; and, strict quota-based work requirements.
Finally, claimant asserts that the ALJ improperly found her capable of
See Tr. 31 (“After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR
416.967(a) except as follows: She can occasionally climb ramps and stairs, balance, stoop, crouch,
and push/pull with the left lower extremity; but never kneel, crawl, or climb ladders, ropes, or
scaffolds. She can tolerate occasional exposure to extreme heat and humidity and wetness but no
exposure to dust, odors, fumes, pulmonary irritants, unprotected heights, and dangerous machinery.
She is limited to performing simple, routine tasks and should avoid quick decisionmaking and
multiple demands as well as loud, distracting, fast-paced, or strict quota-based work environments.”).
performing sedentary work. To support that assertion, she points to a general
summary of her entire medical history, without explaining how any particular piece
of evidence is inconsistent with sedentary work, or how any particular finding by the
ALJ is unsupported by substantial evidence.8 That is not sufficient to satisfy
claimant’s burden of demonstrating that the ALJ’s decision was improper. See
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (“[T]he claimant bears the
burden of proving that he is disabled, and, consequently, he is responsible for
producing evidence in support of his claim.”) (alteration supplied) (citing 20 C.F.R.
§§ 416.912(a), (c)). Moreover, the ALJ properly considered claimant’s subjective
symptoms, and the medical evidence she relied upon was sufficient to support a
residual functional capacity to perform a limited range of sedentary work. For
example, the ALJ pointed out that x-rays and an MRI revealed only mild to moderate
degenerative findings in claimant’s lumbar spine.9 Clinical examinations from
claimant’s primary care provider consistently revealed normal range of motion,
muscle strength, and stability in her extremities, even when claimant complained of
experiencing pain.10 Other than two acute exacerbations of bronchitis and pneumonia
See doc. no. 14 (Claimant’s Reply Brief), at 7 (“The medical evidence that Claimant cannot
work is reliable and convincing. Medical evidence of disability is summarized on pages 7-14 of the
Memorandum in Support of Disability (Doc. 11).”) (emphasis in original); doc. no. 11 (Claimant’s
Brief), at 7-14 (providing a general description of all of claimant’s medical history).
Tr. 32, 250-52, 446-50.
See Tr. 343, 351, 355, 361, 366, 381, 390, 400, 429, 487, 536, 543, 558, 570, 575.
that were adequately resolved,11 the medical records reflect that claimant’s asthma
was well controlled with medication.12 Additionally, Dr. Sathyan V. Iyer, the medical
consultative examiner, found that claimant’s gait was normal, even though she could
not squat or walk on her heels and toes. Claimant experienced tenderness and
decreased range of motion in her lumbar spine during the examination, but she had
full range of motion in her neck, shoulders, elbows, wrists, hips, knees, and ankles.
Her grip strength was 4/5 on both sides, and her muscle power and opposition
functions were normal with no muscle atrophy. Dr. Iyer assessed claimant with lower
back pain secondary to degenerative joint and disc disease in her lumbar spine, but
noted that her asthma was well controlled. He opined that claimant would have
“impairment of functions” with regard to bending, lifting, climbing, squatting,
working at heights, and working around moving machinery, but she would have no
impairment with regard to sitting, standing, handling, hearing, or speaking.13 All of
those findings are consistent with the ALJ’s decision that claimant could perform a
limited range of sedentary work activity.
Claimant’s final argument is that the Appeals Council failed to properly
See Tr. 460-69, 490-96, 514-29.
See Tr. 318, 329, 334, 339, 343, 351, 355, 361, 365, 381, 390, 400, 428, 536, 542, 549,
558, 564, 570, 575.
consider new evidence that was presented for the first time on appeal.
When a claimant submits new evidence to the AC [i.e., Appeals
Council], the district court must consider the entire record, including the
evidence submitted to the AC, to determine whether the denial of
benefits was erroneous. Ingram[ v. Commissioner of Social Security
Administration], 496 F.3d [1253,] 1262 [(11th Cir. 2007)]. Remand is
appropriate when a district court fails to consider the record as a whole,
including evidence submitted for the first time to the AC, in determining
whether the Commissioner’s final decision is supported by substantial
evidence. Id. at 1266-67. The new evidence must relate back to the
time period on or before the date of the ALJ’s decision. 20 C.F.R. §
Smith v. Astrue, 272 F. App’x 789, 802 (11th Cir. 2008) (alterations supplied).
In the present case, the ALJ’s decision was issued on September 14, 2016.14
Claimant appealed to the Appeals Council on October 10, 2016. She submitted an
October 7, 2016 letter from Carol James, CRNP, her primary care provider at Quality
of Life Health Services, Inc. Ms. James stated:
Ms. Donna Chi has been a patient in the Quality of Life Health
Services system since 2007. She suffers from moderate persistent
asthma, low back pain, and agoraphobia with panic attacks. She has not
been able to work secondary to her physical and mental health problems
in quite some time. It is my opinion that she is disabled.
Tr. 20. The Appeals Council entered an order on July 18, 2017, stating that it had
“found no reason under our rules to review the Administrative Law Judge’s decision,”
and that it was denying claimant’s request for review.15 The Appeals Council also
stated: “You submitted a letter from Carol James, CRNP dated October 7, 2016 (3
pages). We find this evidence does not show a reasonable probability that it would
change the outcome of the decision. We did not consider and exhibit this evidence.”16
Claimant asserts that the Appeals Council improperly failed to consider Ms.
James’s letter because the letter was dated after the Administrative Law Judge’s
decision. While it is true that evidence after the administrative decision can still
“relate back to the time period on or before” the date of the decision, the timeliness
of the evidence was not the basis of the Appeals Council’s decision here. Instead, the
Appeals Council found that there was no reasonable probability that the evidence
would change the administrative decision, and that finding was not in error. Ms.
James merely reiterated claimant’s diagnoses of asthma, low back pain, agoraphobia,
and panic attacks, but all of those conditions had already been discussed in claimant’s
other medical records. Additionally, Ms. James’s conclusory statement about
claimant’s ability to work is not entitled to any particular weight. The ALJ is not
required to accept a conclusory statement from a medical source, even a treating
source, that a claimant is unable to work, because the decision whether a claimant is
disabled is not a medical opinion, but is a decision “reserved to the Commissioner.”
20 C.F.R. § 416.927(d).
In summary, the court concludes the ALJ’s decision was based upon substantial
evidence and in accordance with applicable legal standards. Accordingly, the
decision of the Commissioner is due to be affirmed. A separate judgment consistent
with this memorandum opinion will be entered contemporaneously herewith.
DONE this 9th day of August, 2018.
United States District Judge
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