Jones v. Social Security Administration, Commissioner

Filing 22

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/28/2013. (AHI )

FILED
2013 Jan-28 AM 09:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SHERRY A. JONES,
Claimant,
vs.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.

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Civil Action No. CV-11-S-3772-NE

MEMORANDUM OPINION AND ORDER
Claimant Sherry Jones commenced this action on October 28, 2011, 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 a period of disability, disability insurance, and
supplemental security income benefits. For the reasons stated herein, the court finds
that the Commissioner’s ruling is due to be affirmed.
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 improperly evaluated her obesity, that the ALJ’s
credibility finding was not based on substantial evidence, and that the ALJ
improperly failed to consider certain medical source opinions and their effect on her
residual functional capacity. Upon review of the record, the court concludes these
contentions are without merit.
A.

Obesity
Claimant first contends that the ALJ failed to consider her obesity as a severe

impairment, as claimant alleges was required by Social Security Ruling 02-01p.
There appears to be no dispute that claimant is obese. Thus, the ALJ was
required to evaluate the effect of claimant’s obesity on her residual functional
capacity in accordance with Social Security Ruling 02-1p, which states the following:
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.
2

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
apnea.
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
3

limitations.
SSR 02-1P, 2000 WL 628049, at *6-7. That ruling does not require, as claimant
suggests, that anytime a person is obese, her obesity must be considered a severe
impairment. Instead, the ruling only requires that the effects of obesity be considered
in combination with claimant’s other impairments. An impairment will be considered
“severe” only if it “significantly limits [a claimant’s] physical or mental ability to do
basic work activities.” 20 C.F.R. § 404.1520(c).
The administrative decision is internally inconsistent with regard to the ALJ’s
treatment of claimant’s obesity. When listing claimant’s severe impairments, the ALJ
included only pulmonary hypertension and diabetes mellitus, not obesity. The ALJ
did not even list obesity as one of claimant’s “non-severe” impairments.1 Even so,
later in the decision, the ALJ stated:
The record shows the claimant is obese, with a weight of 193
pounds reported in July 2010. While the claimant has this severe
impairment, the record is inconsistent with showing it has impacted on
her musculoskeletal system or general health as to cause her treating
physicians to diagnose her with impairments secondary to or in
combination with obesity. Moreover, at the hearing, the claimant did
not allege functional limitations due to her weight (SSR 02-01p).2
The ALJ also stated, “Based on the record as a whole, the undersigned finds that even
1

Tr. 18 (“The claimant has the following severe impairments: pulmonary hypertension and
diabetes mellitus. (20 CFR 404.1520(c) and 416.920(c)). The undersigned determines that the
claimant’s alleged hearing loss, sleep apnea, depression and back pain are non severe impairments.”).
2

Tr. 24 (emphasis supplied).

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considering the combined effects of the claimant’s impairments with resulting pain
and limitations, she retains the ability to perform a reduced range of light work with
the limitations previously noted.”3 It is therefore unclear whether the ALJ considered
claimant’s obesity to be a severe impairment.
Even if the ALJ did not consider claimant’s obesity to be a separate severe
impairment, his failure to do so would not alone warrant reversal of the administrative
decision. The Eleventh Circuit has stated the following with regard to an ALJ’s
obligations under Step 2 of the sequential process for evaluating Social Security
disability claims:
At step two the ALJ must determine if the claimant has any severe
impairment. This step acts as a filter; if no severe impairment is shown
the claim is denied, but the finding of any severe impairment, whether
or not it qualifies as a disability and whether or not it results from a
single severe impairment or a combination of impairments that together
qualify as severe, is enough to satisfy the requirement of step two. See,
e.g., Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also
Cantrell v. Bowen, 804 F.2d 1571, 1573 (11th Cir. 1986); McDaniel,
800 F.2d at 1031.
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (emphasis supplied). See also
Heatly v. Commissioner of Social Sec., 382 F. App’x 823, 825 (11th Cir. 2010)
(“Nothing requires that the ALJ must identify, at step two, all of the impairments that
should be considered severe.”). The ALJ satisfied his duty at Step Two of identifying

3

Tr. 24-25 (emphasis supplied).

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two severe impairments, pulmonary hypertension and diabetes mellitus.
The next question, therefore, is whether the ALJ met his obligation, at Step
Three of the sequential evaluation process, to “demonstrate that [he] has considered
all of the claimant’s impairments, whether severe or not, in combination.” Heatley,
382 F. App’x at 825 (citations omitted) (alteration supplied). Social Security
regulations state the following with regard to the Commissioner’s duty in evaluating
multiple impairments:
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard
to whether any such impairment, if considered separately, would be of
sufficient severity. If we do find a medically severe combination of
impairments, the combined impact of the impairments will be considered
throughout the disability determination process. If we do not find that
you have a medically severe combination of impairments, we will
determine that you are not disabled.
20 C.F.R. § 1523. See also 20 C.F.R. §§ 404.1545(e), 416.945(e) (stating that, when
the claimant has any severe impairment, the ALJ is required to assess the limiting
effects of all of the claimant’s impairments — including those that are not severe —
in determining the claimant’s residual functional capacity).
Here, the ALJ explicitly discussed claimant’s obesity, finding that there was
no indication that it had impacted her musculoskeletal system or general health

6

sufficiently to cause functional impairments.4 The ALJ also made other statements
indicating that he had considered the combined effect of all of claimant’s
impairments. He stated that claimant did not have an impairment or combination of
impairments that met or equaled one of the listings.5 He also stated that, “[b]ased on
the record as a whole, the undersigned finds that even considering the combined
effects of the claimant’s impairments with resulting pain and limitations, she retains
the ability to perform a reduced range of work at the light level of exertion with the
limitations previously noted.”6 Those statements are sufficient to indicate that the
ALJ properly considered all of claimant’s impairments. See Wilson v. Barnhart, 284
F.3d 1219, 1224 (11th Cir. 2002); Jones v. Dept. of Health and Human Services, 941
F.2d 1529, 1533 (11th Cir. 1991). A review of the decision itself indicates that the
ALJ discussed claimant’s back pain, depression, and anxiety, not just her respiratory
problems and diabetes. Moreover, the ALJ’s statements indicate that he followed
SSR 02-1P by considering the combined effect of claimant’s obesity and other
impairments on her ability to perform work-related activities.
B.

Credibility
Next, claimant asserts that the ALJ’s findings about the credibility of her
4

Tr. 24.

5

Tr. 19.

6

Tr. 24-25 (alteration supplied).

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subjective statements about her limitations were not supported by substantial
evidence. To demonstrate that pain or another subjective symptom renders her
disabled, a claimant must “produce ‘evidence of an underlying medical condition and
(1) objective medical evidence that confirms the severity of the alleged pain arising
from that condition or (2) that the objectively determined medical condition is of such
severity that it can be reasonably expected to give rise to the alleged pain.’” Edwards
v. Sullivan, 937 F. 2d 580, 584 (11th Cir. 1991) (quoting Landry v. Heckler, 782 F.2d
1551, 1553 (11th Cir. 1986)). “After considering a claimant’s complaints of pain, the
ALJ may reject them as not creditable, and that determination will be reviewed for
substantial evidence.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citing
Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984)). If an ALJ discredits
subjective testimony on pain, “he must articulate explicit and adequate reasons.”
Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Jones v. Bowen, 810
F.2d 1001, 1004 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th
Cir. 1986)).
Here, the ALJ found that claimant’s medically determinable impairments could
reasonably be expected to cause the symptoms she alleged, but that claimant’s
statements concerning the intensity, persistence and limiting effects of her symptoms
were not credible to the extent they were inconsistent with a residual functional
8

capacity to perform a limited range of light work.7 The ALJ adequately articulated
the reasons for that decision by stating that claimant’s allegations were inconsistent
with her reported daily activities and unsupported by the medical evidence of record.
Even so, claimant asserts that the ALJ erred in evaluating the daily activities claimant
reported in her February 2009 Function Report.

Those activities included

transporting her daughter to and from school, cleaning, doing laundry, preparing
meals, shopping for food and clothes, paying bills, reading, working in the yard,
spending time with others, attending church, and caring for her father.8 Even though
Social Security regulations expressly provide that daily activities should be
considered in evaluating credibility, see 20 C.F.R. § 404.1529(c)(3)(i) (listing “daily
activities” first among the factors the Social Security Administration will consider in
evaluating a claimant’s pain), claimant challenges the ALJ’s findings under the
Eleventh Circuit’s decision in Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997).
There, the Eleventh Circuit disavowed the notion that “participation in everyday
activities of short duration, such as housework or fishing, disqualifies a claimant from
disability.” Id. at 1441. Here, the ALJ did not rely solely on claimant’s daily
activities to determine her disability status. Instead, he properly evaluated those

7

Tr. 20.

8

Id.

9

activities in evaluating claimant’s credibility. See Hennes v. Commissioner of Social
Security Administration, 130 F. App’x 343, 348-49 (11th Cir. 2005) (holding that
“the degree of Hennes’s complaints also were belied by her testimony that she could
shop for groceries and cook meals with her husband, put clothing in the washing
machine, fold and hang clothing, and crochet”) (citing Macia v. Bowen, 829 F.2d
1009, 1012 (11th Cir.1987)).9 Substantial evidence supports the ALJ’s findings.
The ALJ also properly relied upon the medical evidence of record in evaluating
claimant’s credibility. 20 C.F.R. § 404.1529(c)(1)-(2). He described medical records
that generally reflected multiple complaints but only mild to moderate clinical
findings and little indication of functional limitations.10 The ALJ’s conclusions are
supported by substantial evidence of record. Furthermore, contrary to claimant’s
assertion, the ALJ did not fail to address her use of supplemental oxygen.11
In summary, the ALJ properly evaluated claimant’s credibility, and his

9

Claimant also asserts that the ALJ improperly relied solely upon the activities she reported
in February 2009. See doc. no. 18 (claimant’s brief), at 20 (“The ALJ based his credibility finding
[on] Ms. Jones’ statements of her daily activities contained in her Function Report-Adult which was
completed on February 6, 2009. (R. 181-91). However, her Function Report Adult predated the
more severe findings of her pulmonary arterial hypertension such as using supplemental oxygen.”)
(alteration supplied). The record simply does not support that argument. To the contrary, the ALJ
stated in the administrative decision that, even after the February 2009 Function Report, claimant
“continued to report a significant level of activities, which were previously noted and are
inconsistent with disabling limitations.” Tr. 24.
10

Tr. 20-24.

11

See Tr. 22 (noting claimant’s oxygen use).

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conclusions about credibility were supported by substantial evidence.
C.

Medical Source Opinions
Claimant also asserts that the ALJ erred in failing to consider the Medical

Source Opinion from Dr. Jose Tallaj, one of claimant’s treating physicians. On an
unspecified date, Dr. Tallaj completed a form entitled “Physical Charity Care
Application Physician Disability Confirmation.”12 The letter submitted with that form
explains that the form was completed as part of claimant’s application to participate
in a free medical care program at the University of Alabama in Birmingham.13 The
instructions on the form stated:
Only complete this form if:
You are pending or have been denied disability benefits but are
reporting you are unable to work due to an illness or injury, or if you are
temporarily unable to work due to an illness or injury.
Please have your physician answer the following questions in
order for us to properly evaluate your charity care application based on
your medical condition. We will need specific information about each
of the illnesses, injuries or medical conditions that keep you from
working. . . .14
Dr. Tallaj responded to the question “What is the major illness, injury, or condition

12

Tr. 251.

13

Tr. 250.

14

Tr. 251.

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that keeps the patient from working” with “Pulmonary arterial hypertension.”15 He
responded to the question “What is the estimated time frame that you expect the
patient to be unable to work?” with “Lifetime.”16 He did not provide any further
explanation of claimant’s limitations. Claimant’s attorney also referenced a June 19,
2009 letter from Dr. Tallaj during the administrative hearing. There does not appear
to be a copy of that letter in the record, but claimant attached a copy to her brief. Dr.
Tallaj stated:
Ms. Jones has been our patient since April of 2004. Ms. Jones
suffers from a devastating disease called pulmonary arterial
hypertension, likely familial. She is currently stable on medical therapy;
however, this is a progressive and often lethal disease. She is quite
limited and not physically able to do community service given her
cardiopulmonary condition.17
The ALJ did not discuss the June 19 letter in his administrative decision.
The Commissioner disputes whether Dr. Tallaj was a treating physician or a
one-time examiner, but regardless of that distinction, the ALJ did not err in failing to
consider either document from Dr. Tallaj. Both documents amount to nothing more
than the doctor’s conclusory assertion that claimant is unable to work and/or do
community service because of certain medical conditions. The ALJ is not required

15

Id.

16

Id.

17

Doc. no. 18, at Exhibit D.

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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(e).18 Such opinions carry little to no weight in the disability determination
process, and the ALJ’s failure to discuss them in his administrative opinion was, if
anything, harmless error.19
Finally, claimant asserts that the ALJ “failed to evaluate the testimony about
frequency of Ms. Jones[’] medical appointments.”20 Claimant asserts that the ALJ’s
failure to discuss claimant’s potential absences for medical appointments was error
because the “vocational expert was of the opinion that two or more absences from

18

Claimant acknowledges that Dr. Tallaj’s statements “could be considered statements
regarding issues reserved to the Commissioner,” but she nonetheless asserts that “the ALJ is still
required to evaluate and consider the medical findings underlying those statements.” Doc. no. 18,
at 30. There is no support for the latter part of claimant’s assertion.
19

This conclusion holds true for both the undated Charity Care Application form and the June
19, 2009 letter. Technically, whether the June 19 letter should be considered is governed by the
standards for remand for consideration of new evidence under Sentence Six of 42 U.S.C. § 405(g),
because that evidence was not made a part of the record at any point during the administrative
proceedings. Sentence Six remands require a showing that “(1) new, non-cumulative evidence
exists; (2) the evidence is material such that a reasonable possibility exists that the new evidence
would change the administrative result; and (3) good cause exists for the claimant’s failure to submit
the evidence at the appropriate administrative level.” Carson v. Commissioner of Social Security,
373 F. App’x 986, 988 (11th Cir. 2010) (citing Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.
1986)). Because the June 19 letter contains only conclusory statements about claimant’s ability to
perform community service activities, there is no reasonable possibility that it would change the
administrative result.
20

Doc. no. 18, at 28 (alteration supplied).

13

work each month would preclude work.”21 The court disagrees with claimant because
there is no evidence that claimant would miss more than two days of work each
month for medical appointments. According to claimant’s count, she attended fortythree medical appointments during the 28-month period between January 15, 2009
and April 21, 2011.22 That equates to an average of only 1.53 appointments each
month. Moreover, there is no evidence about the duration of each of claimant’s
appointments. Some may have lasted all day; others may have taken much shorter
periods of time. Therefore, the court is not persuaded that the ALJ improperly failed
to consider the effect on claimant’s potential absences on her ability to perform
substantial gainful activity.
D.

Conclusion
In accordance with all of the foregoing, the court concludes that the ALJ’s

decision was supported by substantial evidence and in accordance with applicable
legal standards. Accordingly, the decision of the Commissioner is AFFIRMED.
Costs are taxed against claimant. The Clerk is directed to close this file.
DONE this 28th day of January, 2013.

______________________________
21

Id. at 29.

22

See id. at 28-29.

14

United States District Judge

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