Rich v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 11/25/2013. (MSN)
2013 Nov-25 PM 01:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of the Social
) Civil Action No.: 5:12-cv-00654-LSC
Plaintiff Claudette Rich (“Plaintiff”) brings this action pursuant to Title II of Section 205(g)
and Title XVI of Section 1631(c)(3) of the Social Security Act (the “Act”), seeking review of the
decision by the Commissioner of the Social Security Administration1 (“Commissioner”) denying her
claims for a period of disability and disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). See also 42 U.S.C. §§ 405(g), 1383(c). After careful review, the court finds that the
decision of the Commissioner is due to be affirmed.
Plaintiff applied for DIB on November 9, 2008. [R. 106-109]. Plaintiff also applied for SSI
on December 15, 2008. [R. 103-106]. In both applications, Plaintiff alleged disability beginning on
October 26, 2007 [R. 103; 106] due to allergies, asthma, and arthritis. [R. 126]. The Social Security
Administration denied Plaintiff’s claims on March 31, 2009. [R. 80-84]. Plaintiff requested [R. 86-
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Therefore,
she should be substituted for Commissioner Michael J. Astrue as Defendant in this suit. See Fed. R. Civ. P. 25(d) (“An
action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold
office while the action is pending. Later proceedings should be in the substituted party’s name, but any misnomer not
affecting the parties’ substantial rights must be disregarded.”).
87] and received a hearing before an administrative law judge (“ALJ”) on August 4, 2010. [R. 5072]. The ALJ issued a decision on November 5, 2010 denying Plaintiff’s applications. [R. 24-40].
On December 27, 2011, the Appeals Council denied Plaintiff’s request for review [R. 1-6], making
the Commissioner’s decision final and a proper subject of this court’s judicial review. See 42 U.S.C.
§§ 405(g), 1383(c).
At the time of the hearing, Plaintiff was 50 years old and had an associates degree from a
technical college. [R. 54-55]. Plaintiff last worked as a pharmacy technician on October 26, 2007.
[R. 56; 58]. She alleged she was unable to return from five months of sick leave because of arthritis
and a Baker’s cyst. [R. 56]. Plaintiff had not looked for another job. [R. 56]. She claimed she was
currently unable to work because of her pain in her knee and right foot, arthritis in her back, and
allergies. [R. 56]. Plaintiff testified that if she comes into contact with anyone who has been
smoking or is wearing a certain perfume, she has trouble breathing. [R. 57]. Plaintiff stated that she
also had an issue with her middle finger on her left hand. [R. 71]. She had a tendon cut and replaced,
which prevented Plaintiff from fully bending that finger. [R. 72]. Plaintiff also testified that her
diabetes causes fatigue. [R. 58]. She further stated that if her blood sugar drops, she becomes
“jittery” and cannot “think straight.” [R. 58]. Plaintiff testified that she was able to buy (or receive
for free) all of her medications and that they caused no side effects. [R. 60]. Plaintiff was taking
Cingular and Advair for her asthma. She also had an inhaler. [R. 61].
Plaintiff told the ALJ that she could sit upright for about 15 or 20 minutes before her back
would start to hurt. [R. 57]. She stated that she could stand for about 10 or 15 minutes before her
foot and left knee would start to hurt. [R. 57]. Plaintiff reported that she could “walk around the
block,” tie her shoes, and open doors with a doorknob. [R. 57]. Plaintiff lived in a home with her
adult daughter. She testified that they share household chores and cooking responsibilities. [R. 54].
Plaintiff stated that she drove to church and to the store to shop for groceries. [R. 55]. Plaintiff
testified that she did no outside chores. [R. 55].
Plaintiff stated that she believed she would have missed between six and ten days of work
over the previous month due to her pain. [R. 60]. When asked by the ALJ if she could perform a
job where she could sit and stand when she wanted and her only responsibility would be to look at
a video screen, Plaintiff answered that she could not perform that job because she could not sit
upright. [R. 61]. Plaintiff then stated “well, you said I could stand or sit as much as I wanted to. I
don’t know. . . .But I don’t think I could do it. Well, boredom.” [R. 61].
An ALJ also testified at the hearing. She stated that Plaintiff’s past relevant work included
pharmacy technician, semiconductor assembler, cake decorator, and cashier. [R. 62; 64-65]. The VE
testified there would be transferrable skills from these jobs to other light jobs such as sales clerk and
electronic component processor. [R. 65]. The ALJ posed a hypothetical to the VE and asked whether
someone of someone of Plaintiff’s age, education, and work experience who could occasionally lift
up to 20 pounds, could frequently lift ten pounds, could sit or stand for six hours in an 8-hour work
day, could stand and walk for six hours in an 8-hour work day, could occasionally climb ramps and
stairs, and who should not be exposed to fumes, odors, dust, gases, poor ventilation, or extreme heat
and cold, would be able to perform Plaintiff’s past relevant work. [R. 66]. The ALJ responded that
such an individual would not but she testified that others jobs existed in the national economy that
this individual could perform, including inspector, assembler, and some cashier jobs. [R. 66]. The
ALJ posed a second hypothetical based upon the first but a sit/stand job permitting the individual
to sit for six hours but no more than 30 minutes at a time and stand/walk for four hours but no longer
than ten minutes at a time without the ability to sit. [R. 67]. Based upon this second hypothetical,
the VE testified that her opinion of the jobs previously listed would not change. [R. 67].
Plaintiff’s attorney posed a hypothetical to the VE and asked the VE to review a functional
capacity evaluation (“FCE”) and to assume that Plaintiff’s restrictions limited her to sedentary or less
than sedentary work. The VE responded that no jobs would be available that Plaintiff could perform.
The ALJ then pointed out that the FCE indicated that Plaintiff could lift 30 pounds in various
positions. Plaintiff’s attorney responded that these were “rarely” or on a one-time basis. [R. 68-71].
Plaintiff sought primary care at Huntsville Family Care from April 2004 through July 2007.
[R. 337-416]. Plaintiff saw Michael Johnson, M.D. on April 7, 2004 for a complete physical and
follow up of her current medical problems. [R. 378]. Dr. Johnson reviewed Plaintiff’s history of
high blood pressure, allergies, and asthma. [R. 378]. Plaintiff reported her high blood pressure
symptoms improved with medication. Plaintiff stated that her allergy symptoms started two weeks
before her visit. [R. 378]. Plaintiff indicated that her condition improved with antihistamines and
exposure to allergens. [R. 378]. Plaintiff reported her asthma symptoms as moderate in intensity but
that her condition improved with antihistamines and bronchodilators. [R. 378]. Upon examination,
Plaintiff revealed no clubbing or cyanosis in her extremities. [R. 379]. Her musculoskeletal exam
was normal. [R. 379]. Dr. Johnson diagnosed Plaintiff with unspecified essential hypertension,
asthma, and chronic rhinitis. [R. 379].
When Plaintiff saw Dr. Johnson on August 18, 2004, she complained of intermittent back
pain. [R. 374]. Plaintiff stated that the pain occurred with bending and heavy lifting. Upon
examination, Plaintiff’s lumbar region demonstrated pain with movement and palpation. [R. 374].
Dr. Johnson diagnosed Plaintiff with a backache and recommended that she avoid any manipulation
of the thoracic spine or the lumbar spine. [R. 375]. Dr. Johnson also recommended that Plaintiff
avoid twisting and lifting as much as possible. [R. 375]. He also suggested Plaintiff try over-thecounter medications such as Advil and Motrin. [R. 375].
Dr. Johnson treated Plaintiff again on January 10, 2005 for insomnia, hyperlipidemia, acne
or a skin rash, and high blood pressure. [R. 371-372]. Dr. Johnson prescribed various medications
and recommended that Plaintiff follow-up in six weeks. [R. 372]. When Plaintiff saw Dr. Johnson
again in April 2005, she reported myopathy and muscle weakness. [R. 367]. Treatment notes
indicate that Plaintiff experienced muscle weakness in her arms and legs. Dr. Johnson believed this
was likely related to her blood pressure medication. [R. 367]. He diagnosed Plaintiff with seasonal
allergic rhinitis and muscle spasm. [R. 368]. Dr. Johnson also recommended that Plaintiff avoid
contact with dust and that she vacuum her house on a regular basis. [R. 368].
On May 9, 2005 Plaintiff reported she was experiencing right leg and arm pain. [R. 365].
Treatment notes indicate the pain was caused by arthritis and joint pain. [R. 365]. Plaintiff reported
the pain as intermittent and she stated that her symptoms improved with activities of daily life,
ambulation, anti-inflammatory drugs, exercise, and pain medications. [R. 365]. Dr. Johnson
prescribed two medications and also instructed Plaintiff to increase her water intake. [R. 366]. He
suggested hot soaks and warm paraffin wax as at-home remedies. He also told Plaintiff that
exercises, such as range of motion, stretching, strengthening, aerobic, isometric, and recreational
activities might help strengthen her muscles and stimulate cartilage growth. [R. 366].
During a visit on June 21, 2005, Dr. Johnson diagnosed Plaintiff with rheumatoid arthritis,
radiculopathy, hyperlipidemia, and intrinsic asthma. [R. 364]. Upon examination, Plaintiff’s cervical
spine demonstrated pain with movement and palpation. [R. 364]. Dr. Johnson noted that Plaintiff’s
asthma as well controlled. [R. 363]. When Plaintiff returned on August 3, 2005, she was
experiencing shortness of breath and appeared in moderate distress. [R. 361-362]. Dr. Johnson
diagnosed Plaintiff with shortness of breath and acute sinusitis and prescribed various medication.
He instructed Plaintiff to avoid those who smoke and industrial fumes and dust. [R. 362].
On October 11, 2005, Plaintiff saw Dr. Johnson again and complained of continuing back
pain. [R. 357]. Plaintiff reported that her symptoms improved with pain medication and rest but not
with activities of daily living, ambulation, bending, lying down, or straight leg raise. Dr. Johnson
noted that questionable new changes had occurred since Plaintiff’s last visit. [R. 357]. Upon
examination, Plaintiff demonstrated straight leg raise and her lumbar region revealed pain with
movement and palpation. [R. 358]. Dr. Johnson diagnosed Plaintiff with low back pain and ordered
In April 2007, Dr. Johnson diagnosed Plaintiff with degenerative disc disease and rheumatoid
arthritis. [R. 346]. Plaintiff’s low back revealed pain with movement and palpation. [R. 346]. Dr.
Johnson did not prescribe any medications during this visit but suggested Plaintiff try over-thecounter Advil or Motrin. [R. 346]. He also recommended that Plaintiff avoid manipulation of her
thoracic and lumbar spine. [R. 346]. He further instructed Plaintiff to avoid twisting and lifting over
as many pounds as possible. [R. 346]. In May and July 2007, Dr. Johnson treated Plaintiff’s high
blood pressure and an asthma flare-up. [R. 338-344]. Treatment notes include no new information
regarding Plaintiff’s conditions.
Plaintiff received treatment from various providers, including Nicole Scruggs, M.D. at
Central North Alabama Health Services from July 1, 2005 through February 9, 2010. [R. 200-223;
230-236]. These treatment notes document Plaintiff’s complaints associated with her asthma and
allergies. During most visits, Plaintiff received prescriptions for various asthma medications. [R.
201; 204; 205; 210; 211; 212; 232; 233]. During one visit in August 2009 Plaintiff complained of
right shoulder pain. [R. 235]. Plaintiff reported her pain level was a four. [R. 235]. Treatment notes
do not reveal any findings associated with Plaintiff’s reported shoulder pain. [R. 235]. Although
substantially void of any information related to Plaintiff’s joints or back pain, treatment notes from
visits on July 13, 2006 and February 5, 2010 indicate that Plaintiff demonstrated no leg or joint
swelling. [R. 210; 232].
The record also contains a May 12, 2010 progress note from Central North Alabama Health
Services signed by Dr. Scruggs. This progress note indicates that Plaintiff had applied for disability
and needed forms completed for her lawyer. [R. 277]. These notes state that Plaintiff suffers from
diabetes, asthma, and high blood pressure. [R. 277]. Dr. Scruggs also commented that Plaintiff has
complained of back, knee, and foot pain. [R. 277]. She indicated that Plaintiff’s reported pain level
was a four. [R. 278].
In late 2007 and early 2008, Plaintiff saw David Griffin, M.D. at The Orthopaedic Center.
[R. 197-199]. During a visit on November 1, 2007, Plaintiff complained of left knee pain and
swelling. [R. 198]. Dr. Griffin’s examination of Plaintiff’s left knee revealed “minimal swelling.”
[R. 198]. Dr. Griffin did not detect an overt knee effusion. Dr. Griffin diagnosed Plaintiff with
probable degenerative medial meniscal tear left knee and mild degenerative arthritis left knee with
patellofemoral syndrome. [R. 198-199]. Dr. Griffin told Plaintiff that he believed her symptoms
could be “treated conservatively with anti-inflammatory medication and physical therapy.” [R. 199].
He also suggested an MRI to rule out a significant meniscal lesion that would require surgical
treatment. [R. 191]. During a follow-up visit on February 13, 2008, Plaintiff reported that her
symptoms had improved. [R. 197]. She continued to have some “mild clicking and discomfort in
the knee on an intermittent basis.” She also reported that “her back [was] much improved.” [R. 197].
Plaintiff had not gone to physical therapy but had taken Mobic on a regular basis. [R. 197]. Upon
examination, Plaintiff demonstrated a normal gait pattern. [R. 197]. Plaintiff showed no tenderness
in the lumbar spine or the knee to range of motion or palpation. [R. 197]. Dr. Griffin noted that
Plaintiff’s lumbar strain was clinically resolved and her mild degenerative arthritis was clinically
improved. [R. 197]. Dr. Griffin released her to work “on Monday” and provided a note excusing her
from February 6 through Monday. [R. 197]. Dr. Griffin indicated he would see Plaintiff on an as
needed basis if her symptoms returned or progressed.2 [R. 197].
On July 11, 2010, Plaintiff sought treatment from Huntsville Hospital for left knee pain. [R.
281]. Triage notes indicate that Plaintiff heard a pop in her knee while she was dancing the night
before. [R. 285]. Plaintiff demonstrated tenderness on the left knee. [R. 286]. X-rays revealed a
joint effusion and degenerative changes. [R. 290]. Plaintiff was diagnosed with a knee sprain and
prescribed Lortab. [R. 282].
Dr. Scruggs referred Plaintiff to physical therapist Heidi Teague for a functional capacity
evaluation on June 1, 2010. [R. 266-274]. Upon examination, Teague observed decreased heel
strike and tenderness on palpation to the lateral side of Plaintiff’s right knee. [R. 268]. Plaintiff’s
The record contains no other records from Dr. Griffin.
strength in her shoulders, elbows, wrists, hips, knees, and ankles was 4-/5 or 4/5. [R. 268]. Strength
in her trunk was 2/5. [R. 268]. Teague noted that Plaintiff had swelling in both feet and ankles. [R.
268]. Plaintiff’s deep tendon reflexes were symmetrical for upper and lower extremities. [R. 268].
Plaintiff’s maximum demonstrated squat was a half squat with a wide base of support. [R. 268].
During the examination, Plaintiff complained of increased pain with static standing and frequently
her weight shifted. [R. 270]. Teague indicated that Plaintiff demonstrated antalgic gait; however,
she was able to complete a quarter of a mile walk test. [R. 270]. Teague observed that Plaintiff was
able to lift 30 pounds at waist level with horizontal lift and that she was able to carry 30 pounds with
front carry and with right hand and left hand carry. [R. 271]. Plaintiff demonstrated prolonged sitting
of 30 minutes. [R. 271]. She also demonstrated the ability to complete prolonged standing for 30
minutes but experienced increased pain and performed weight shifting. [R. 271]. Plaintiff also
demonstrated adequate balance. [R. 271]. Prior to the evaluation, Plaintiff stated her pain level was
a three. Upon completion of testing, Plaintiff reported that her pain level was an eight. [R. 267].
Plaintiff complained of “burning” pain in her lumbar region, “stabbing” pain in her left knee, and
“numbness” on her middle finger of her right hand. She also complained of “pins and needles” of
dorsum of feet. [R. 267].
Teague noted that Plaintiff demonstrated a light physical demand level from floor to waist
secondary to lifting 20 pounds. Teague then commented that Plaintiff demonstrated a sedentary
physical demand level from waist to crown level secondary to lifting 10 pounds. [R. 266]. Teague
concluded that Plaintiff was limited with squatting and demonstrated overall light values for material
handling. [R. 266].
Eston Norwood, III, M.D. performed a consultative examination on September 16, 2010. [R.
418]. He reviewed the FCE, primary care progress notes, Dr. Griffin’s orthopaedic notes, and the
October 2005 MRI and x-rays. [R. 418]. Upon examination, Plaintiff’s knees “show[ed] good range
of motion bilaterally with more discomfort reported on passive flexion of the left knee than the
right.” [R. 418]. Dr. Norwood noted “a little bit of edema at the knees and the ankles bilaterally.”
[R. 418]. Plaintiff’s gait was antalgic “consistent with knee pain bilaterally, worse on the left.” [R.
418]. Plaintiff’s strength was normal in the arms and legs. [R. 418]. Dr. Norwood found no muscle
spasm, and he indicated that Plaintiff was able to rise from a sitting position without assistance. [R.
418]. Dr. Norwood observed no muscle atrophy. He noted that Plaintiff’s strength remained good
after repetitive exercise. [R. 418]. Dr. Norwood diagnosed Plaintiff with bilateral knee pain without
neurologic deficit. [R. 418]. He opined that her pain would likely make bending, lifting, stooping,
kneeling, standing, and walking uncomfortable but that she had no neurologic deficit and there was
no physical neurological impairment to do work-related activities. [R. 418].
Based upon his examination, Dr. Norwood completed a Medical Source Statement of
Plaintiff’s ability to do physical work-related activities. [R. 419]. According to Dr. Norwood,
Plaintiff could frequently lift and/or carry up to 50 pounds and could occasionally lift up to 100
pounds. [R. 419]. Dr. Norwood further opined that Plaintiff could sit for 2 hours at a time without
interruption and that she could stand and walk for 20 minutes without interruption. [R. 420]. Dr.
Norwood also indicated that Plaintiff could sit for six hours in an 8-hour work day and that she could
stand and walk for one hour each during an 8-hour work day. [R. 420]. Dr. Norwood also opined
that Plaintiff could continuously reach (including overhead), handle, finger, feel, push, and pull. [R.
421]. He noted that Plaintiff could occasionally operate foot controls, climb ramps, stairs, ladders,
or scaffolds, kneel, crouch, and crawl. [R. 422]. Dr. Norwood further stated that Plaintiff could
frequently balance and stoop. [R. 422]. Dr. Norwood also indicated that Plaintiff could continuously
be exposed to various environmental conditions. [R. 423].
Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520. First,
the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R.
§ 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing significant
physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is work that is done
for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant engages in substantial
gainful activity, then the claimant cannot claim disability. 20 C.F.R. § 404.1520(b). Second, the
ALJ must determine whether the claimant has a medically determinable impairment or a
combination of medical impairments that significantly limits the claimant’s ability to perform basic
work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such impairment, the claimant may not
claim disability. (Id.). Third, the ALJ must determine whether the claimant’s impairment meets or
medically equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See
20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria are met, the claimant is declared
disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under the
third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ must
first determine the claimant’s residual functional capacity (“RFC”), which refers to the claimant’s
ability to work despite her impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ
determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant work,
then the claimant is deemed not disabled. (Id.). If the ALJ finds the claimant unable to perform past
relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v).
In the last part of the analysis, the ALJ must determine whether the claimant is able to perform any
other work commensurate with her RFC, age, education, and work experience. 20 C.F.R. §
404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove the existence,
in significant numbers, of jobs in the national economy that the claimant can do given her RFC, age,
education, and work experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c).
In the instant case, the ALJ concluded that Plaintiff had not engaged in substantial gainful
activity since October 26, 2007, the alleged onset date. [R. 29]. The ALJ concluded that Plaintiff
has the following severe impairments: asthma, obesity, and degenerative changes of the knee with
joint effusion. [R. 29]. The ALJ also found that Plaintiff has the following nonsevere impairment:
anxiety/depression. [R. 30]. Nonetheless, the ALJ found that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. [R. 31]. After careful consideration of the entire record,
the ALJ found that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. §§
404.1567(b), 416.967(b) with a sit/stand option (sit 6 hours in an 8-hour work day and 30 minutes
at a time; and stand/walk 4 hours in an 8-hour work day and 10 minutes at a time). Additionally, the
ALJ determined that Plaintiff can occasionally climb ramps and stairs but that she should avoid
exposure to fumes, odors, dust, gases, poor ventilation, and extreme heat/cold. [R. 31]. Based upon
this RFC, the ALJ concluded that Plaintiff could not perform her past relevant work. The ALJ noted
that Plaintiff was 47 years old on the alleged onset date, which is defined as a younger individual
under the regulations. [R. 34]. However, the ALJ stated that Plaintiff subsequently changed age
category to closely approaching advanced age. [R. 34]. The ALJ found that transferability of job
skills was immaterial to the determination of disability because using the Medical-Vocational Rules
as a framework supports a finding of “not disabled” independent of transferrable job skills. [R. 35].
Considering Plaintiff’s age, education, work experience, and RFC, the ALJ concluded that jobs
existed in significant numbers in the national economy that Plaintiff could perform, including:
inspector; assembler of small products; and cashier. [R. 35]. Accordingly, the ALJ found that
Plaintiff is not disabled, as that term is defined in the Act. [R. 36].
Plaintiff’s Argument for Reversal
Plaintiff seeks to have the Commissioner’s decision reversed, or in the alternative, remanded
for further proceedings. [Pl.’s Mem. 13]. Plaintiff contends that the ALJ’s decision is not supported
by substantial evidence and that improper legal standards were applied because: (1) the ALJ erred
in rejecting the independent FCE ordered by Dr. Scruggs; (2) the ALJ’s RFC findings are more
compatible with sedentary work; (3) the ALJ failed to properly consider obesity into his RFC
determination; and (4) the ALJ erred in failing to consider a favorable finding under the Medical
Vocational Rules. [Pl.’s Mem. 5-12].
Standard of Review
The only issues before this court are whether the record reveals substantial evidence to
sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847 F.2d 698,
701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§
405(g) and 1383(c)(3) mandate that the Commissioner’s findings are conclusive if supported by
“substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court
may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the
Commissioner; instead, it must review the final decision as a whole and determine if the decision
is reasonable and supported by substantial evidence. See id. (citing Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of evidence;
“[i]t is such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations
omitted). If supported by substantial evidence, the Commissioner’s factual findings must be
affirmed even if the evidence preponderates against the Commissioner’s findings. See Martin, 894
F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s findings is limited in
scope, the court also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at
For the reasons that follow, the court finds that the ALJ’s decision is based upon substantial
evidence and that proper legal standards were applied.
The ALJ Did Not Err in Rejecting the FCE
Plaintiff’s first argument is that the ALJ improperly rejected the FCE performed by a physical
therapist at the request of one of Plaintiff’s treating physicians, Dr. Scruggs. [Pl.’s Mem. 5]. The
court disagrees and concludes that the ALJ properly rejected the findings contained in the FCE.
The Commissioner's regulations determine who are acceptable medical sources for the
purposes of establishing whether a claimant has a medically determinable impairment. However,
once medical evidence from acceptable medical sources establishes the presence of a severe
impairment, testimony from other medical sources may be used. Specifically, Section 404.913(d)
provides as follows:
In addition to evidence from the acceptable medical sources listed in paragraph (a)
of this section, we may also use evidence from other sources to show the severity of
your impairment(s) and how it affects your ability to work.... Other sources include,
but are not limited to—
(1) Medical sources not listed in paragraph (a) of this section (for example, nursepractitioners, physicians' assistants, naturopaths, chiropractors, audiologists, and
20 CFR § 404.913(e). The weight afforded a medical source's opinion on the issue(s) of the nature
and severity of a claimant’s impairments depends upon the medical source’s examining and treating
relationship with the claimant, the evidence the medical source presents to support his opinion, how
consistent the opinion is with the record as a whole, the specialty of the medical source, and other
factors. See 20 C.F.R. § 404.1527(c), 416. 927)(c) (2012); Social Security Ruling (SSR) 96-2p, 61
Fed. Reg. 34,490, 1996 WL 374188.
Here, the ALJ accorded “little weight” to the findings contained in the PCE because a
physical therapist is not an acceptable medical source. Because the PCE was not provided by an
acceptable medical source, the ALJ was not required to give it special evaluation or deference. See
20 C.F.R. §§ 404.1513(a), (d)(1), 416.913(a), (d)(1); Freeman v. Barnhart, 220 F. App’x 957, 961
(11th Cir. 2007) (holding that the opinion of a physical therapist was not entitled to less weight than
that of a physician). The ALJ also noted that he could not locate Dr. Scruggs’ approval of the
recommendations. [R. 34]. Citing 20 C.F.R. § 404.1512(e), Plaintiff contends that the ALJ
improperly failed to clarify the record on this point by recontacting Dr. Scruggs before rejecting the
PCE. This section of the regulations states, in relevant part:
Generally, we will not request a consultative examination until we have made every
reasonable effort to obtain evidence from your own medical sources. However, in
some instances, such as when a source is known to be unable to provide certain tests
or procedures or is known to be nonproductive or uncooperative, we may order a
consultative examination while awaiting receipt of medical source evidence. We will
not evaluate this evidence until we have made every reasonable effort to obtain
evidence from your medical sources.
20 C.F.R. § 404.1512(e). The court finds no language here requiring the ALJ to recontact Dr.
Scruggs. Regardless, any failure by the ALJ to clarify whether Dr. Scruggs approved the findings
is harmless because even if the opinion had been from an acceptable medical source, the ALJ was
free to reject the evaluation if it was not supported by medically acceptable clinical and laboratory
diagnostic techniques or if it was inconsistent with the record as a whole. See 20 C.F.R. §§
404.1527(c)(3)-(4); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (explaining that an ALJ
may reject the opinion of a treating physician where it is not bolstered by the evidence or where the
evidence supports a contrary finding). Here, the ALJ did just that. He further discounted the PCE
because it was inconsistent with Dr. Scruggs’ and Dr. Norwood’s findings and appeared to be based
substantially upon Plaintiff’s subjective complaints. Specifically, the ALJ noted that Dr. Scruggs’
progress note indicated Plaintiff’s pain was a four out of ten on the pain scale. [R. 34]. The ALJ also
noted that Dr. Norwood, who is a specialist, found no physical neurological impairment to Plaintiff’s
ability to work. See King v. Barnhart, 320 F. Supp. 2d 1227, 1231-32 (N.D. Ala. 2004 (noting that
under 20 C.F.R. § 404.1527(d)(5), the opinion of a specialist is entitled to more weight than the
opinion of a source who is not a specialist). Therefore, the court finds that even had the ALJ
recontacted Dr. Scruggs and even if she had affirmed the therapist’s PCE findings, the ALJ
nonetheless properly rejected the recommendations. Thus, the Commissioner’s decision is not due
to be reversed on this ground.
The ALJ’s RFC Determination is Based Upon Substantial Evidence
Plaintiff’s second argument on appeal is that the ALJ’s RFC findings were “more compatible
with a sedentary RFC.” [Pl.’s Mem. 8]. Plaintiff’s argument fails.
The RFC is an assessment based upon all of the relevant evidence of a claimant’s remaining
ability to do work despite his impairments. Lewis, 125 F.3d at 1440 (citing C.F.R. § 404.1545(a)).
The ALJ must consider any statements by medical sources about what the claimant can still do,
whether or not those statements are based on formal medical examinations.
20 C.F.R. §
404.1545(a)(3). The ALJ must also consider descriptions and observations of the limitations
resulting from the claimant’s impairments, including limitations that result from symptoms, such as
The final responsibility for assessing a claimant’s RFC rests with the ALJ. Id. §
Here, the ALJ determined Plaintiff could perform light work as defined in 20 C.F.R. §§
404.1567(b), 416.967(b) with a sit/stand option (sit 6 hours in an 8-hour work day and 30 minutes
at a time; and stand/walk 4 hours in an 8-hour work day and 10 minutes at a time). Additionally, the
ALJ determined that Plaintiff can occasionally climb ramps and stairs but that she should avoid
exposure to fumes, odors, dust, gasses, poor ventilation, and extreme heat/cold. [R. 31]. Plaintiff
contends this assessment is in error because the “basic exertional criteria of light” work requires
more than the ALJ found Plaintiff capable of performing. [Pl.’s Mem. 8]. Plaintiff is mistaken.
The ALJ did not find that Plaintiff could perform a full range of light work. Instead, the ALJ
found Plaintiff could perform a reduced range of light work as reflected by the sit/stand option
included in the RFC determination. [R. 31]. The reduced range of light work, including the sit/stand
option, was presented to the VE for consideration. In response, the VE testified that an individual
with these limitations could perform certain jobs. Based, in part, upon this testimony, the ALJ
concluded that Plaintiff was not disabled. In reaching this conclusion, the ALJ carefully reviewed
the objective medical evidence of record. Specifically, the ALJ noted Dr. Griffin’s findings from
late 2007 and early 2008 that Plaintiff’s lumbar spine and knee revealed normal ranges of motion
with no tenderness to palpation. [R. 32]. The ALJ also commented that Dr. Griffin opined that
Plaintiff’s lumbar strain had clinically resolved and that he ultimately released her to return to work.
[R. 32]. The ALJ then stated that Plaintiff’s medical records from Central North Alabama Health
revealed no “significant knee/back symptoms or findings.” [R. 32]. The only other evidence related
to knee or back problems were treatment notes from an emergency room visit in July 2010 for a left
knee sprain. [R. 32]. The ALJ noted that x-rays showed degenerative joint disease but that Plaintiff
had hurt her knee the night before while “dancing.” [R. 32]. Further, the ALJ indicated that these
records showed no edema and only mild to moderate tenderness. Plaintiff was instructed to follow
up in one to two weeks if she saw no improvement. However, as the ALJ correctly noted, the record
contains no evidence indicating that Plaintiff returned for treatment. [R. 32]. According to the ALJ,
this suggested that her knee sprain resolved. [R. 32]. Based upon these findings and the consultative
examinations, the ALJ afforded Plaintiff “the benefit of the doubt” and reduced her RFC to a reduced
range of light work that included a sit/stand option. [R. 34]. The court finds that this substantial
evidence supports the ALJ’s RFC determination. Accordingly, the Commissioner’s decision is not
due to be reversed on this ground.
The ALJ Properly Considered Plaintiff’s Obesity in Making His RFC
Plaintiff’s third argument on appeal is that the ALJ did not adequately consider Plaintiff’s
obesity when making his RFC determination. [Pl.’s Mem. 10].
The ALJ found that Plaintiff suffered from the severe impairment of obesity. [R. 33].
However, in determining Plaintiff’s RFC, the ALJ stated that the record was devoid of any treating
physician reporting that Plaintiff’s weight significantly limits her or has caused musculoskeletal
problems. [R. 33]. Citing Social Security Ruling 02-01p, the ALJ further noted that although
Plaintiff had this severe impairment, it had not, in combination with her other impairments, impacted
her health to the point that a treating physician diagnosed her with any impairment secondary to her
obesity. [R. 33]. Plaintiff contends that the ALJ’s statement does not reflect the standard provided
in Social Security Ruling 02-01p. This ruling explains that obesity may cause limitations in
exertional and postural functions. It further provides guidance for how to evaluate obesity at each
stage of the sequential process, including when assessing the RFC.3 However, while the ALJ has
Specifically, SSR 02-1p provides in relevant part:
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, balance, 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 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.
the responsibility to make a determination on Plaintiff's RFC, it is Plaintiff who bears the burden of
proving her RFC, i.e., Plaintiff must establish that her obesity results in functional limitations and
that she was “disabled” under the Social Security Act. See 20 C.F.R. § 404.1512(a),(c) (2011)
(instructing claimant that the ALJ will consider “only impairment(s) you say you have or about
which we receive evidence” and “[y]ou must provide medical evidence showing that you have an
impairment(s) and how severe it is during the time you say that you are disabled”); Flynn v. Heckler,
768 F.2d 1273, 1274 (11th Cir.1985) (citing C.F.R.§ 404.1512(a),(c) (2011)).
Notably, Plaintiff did not allege that her obesity prevented her from working—either in her
disability applications or during her hearing before the ALJ. Additionally, the ALJ correctly noted
that no treating (or other source) determined that Plaintiff’s obesity caused limitations on her ability
to perform job related functions beyond that accounted for in the RFC. [R. 33]. The court concludes
that the ALJ satisfied his obligation under SSR 02-01p to consider Plaintiff’s obesity in making his
RFC determination. See Castel v. Comm'r of Soc. Sec., 355 F. App’x 260, 264 (11th Cir. 2009)
(concluding that an ALJ properly considered the effects of a claimant’s obesity by finding that it
constituted a severe impairment and referred to SSR 02-1p in his ruling that ultimately concluded
the obesity did not result in any specific functional limitations); James v. Barnhart, 177 F. App’x
875, 877 n. 2 (11th Cir. 2006) (per curiam) (finding that the ALJ did not err in failing to find obesity
to be a severe impairment where, during her own testimony at the administrative hearing, the
plaintiff did not complain that obesity was a functional impairment); Gary v. Astrue, 2009 WL
As with any other impairment, we will explain how we reached our conclusions on whether obesity
caused any physical or mental limitations.
3063318, at *2–3 (M.D. Ala. Sept. 22, 2009) (failure to mention obesity or explain conclusion as to
whether obesity caused any physical or mental limitations did not provide basis for relief where the
claimant identified no evidence in the record to support her position that the condition caused
“significant limitations on her ability to work”). Therefore, the Commissioner’s decision is not due
to be reversed on this ground.
Medical Vocational Rules
Plaintiff’s fourth and final argument is that the ALJ failed “to consider a favorable finding
under the medical vocational rules.” [Pl.’s Mem. 12]. The court disagrees.
In support of this argument, Plaintiff maintains that even if (as Dr. Griffin’s treatment notes
reflect) Plaintiff made an initial recovery from her lumbar strain and the popliteal cyst on her left
knee in February 2008 and even if the PCE arguably allowed for a full range of sedentary work,
Plaintiff would “grid” under medical vocational rule 201.14 from her 50th birthday. [Pl.’s Mem. 12].
However, this contention relies upon the assumption that Plaintiff is restricted to sedentary work.
As already discussed in detail above, the court has concluded that substantial evidence supports the
ALJ’s RFC determination that Plaintiff could perform a limited range of light work. See supra Part
IV.A-C. Therefore, Plaintiff’s argument that the ALJ failed to make a favorable finding under the
medical vocational rules falls flat. There was no need for such a consideration because, contrary to
Plaintiff’s assertion that she is only capable of performing sedentary work, the ALJ properly
concluded that she could perform light work with a sit/stand option. Thus, the Commissioner’s
decision is not due to be reversed on this ground.
For the reasons stated above, the court concludes that the ALJ’s determination that Plaintiff
is not disabled is supported by substantial evidence and that proper legal standards were applied.
Therefore, the Commissioner’s decision is due to be affirmed. A separate order in accordance with
this memorandum opinion will be entered.
Done this 25th day of November 2013.
L. Scott Coogler
United States District Judge
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