Daniel v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION and ORDER; the Commissioner's final decision is affirmed; costs are taxed against claimant. Signed by Judge C Lynwood Smith, Jr on 04/11/14. (SPT )

FILED
2014 Apr-11 AM 11:09
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

EDWIN G. DANIEL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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) CIVIL ACTION NO. 5:12-CV-1129) CLS
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MEMORANDUM OPINION AND ORDER
Claimant, Edwin G. Daniel, brings this action pursuant to the provisions of
42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner of the Social Security Administration, denying his application for
a period of disability and disability insurance benefits. Claimant timely pursued
and exhausted his administrative remedies available before the Commissioner.
Accordingly, this case is now ripe for judicial review under 42 U.S.C. § 405(g).
Based on the court’s review of the record and the briefs submitted by the parties,
the court finds that the decision of the Commissioner is due to be affirmed.

I. STANDARD OF REVIEW

The sole function of this court is to determine whether the decision of the
Commissioner is supported by substantial evidence and whether proper legal
standards were applied. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). To that end this court “must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.” Id.
(citations omitted). Substantial evidence is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Id. This court may not
decide the facts anew, reweigh the evidence, or substitute its judgment for that of
the Commissioner. Id. Even if the court finds that the evidence preponderates
against the Commissioner’s decision, the court must affirm if the decision is
supported by substantial evidence. Id.
Unlike the deferential review standard applied to the Commissioner’s factual
findings, “no similar presumption of validity attaches to the [Commissioner’s]
conclusions of law, including determination of the proper standards to be applied
in reviewing claims.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982)
(quoting Smith v. Schweiker, 646 F.2d , 1075, 1076 (5th Cir. Unit A Jun.1981)).
Therefore, this court reviews de novo the Commissioner’s conclusions of law.
Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007). The
Commissioner’s “failure to apply the correct law or to provide the reviewing court

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with sufficient reasoning for determining that the proper legal analysis has been
conducted mandates reversal.” Cornelius v. Sullivan, 936 F.2d 1143, 1145-46
(11th Cir. 1991).
II. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must be unable “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 twelve months
. . . .” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental
impairment” is defined as “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. §§
423(d)(3), 1382c(a)(3)(D).
Social Security regulations outline a five-step process that is used to
determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v),
416.920(a)(4)(i)-(v). The Commissioner must determine in sequence:
(1)

whether the claimant is currently engaged in substantial gainful
activity;

(2)

whether the claimant has a severe impairment or combination
of impairments;

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(3)

whether the claimant’s impairment meets or equals the severity
of an impairment in the Listing of Impairments;1

(4)

whether the claimant can perform any of his or her past work;
and

(5)

whether there are significant numbers of jobs in the national
economy that the claimant can perform.

Winschel v. Comm’r of Soc. Sec, 631 F.3d 1176, 1178 (11th Cir. 2011). The
evaluation process continues until the Commissioner can determine whether the
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant who
is doing substantial gainful activity will be found not disabled at step one. 20
C.F.R. §§ 404.1520 (a)(i), 416.920(a)(4)(i). A claimant who does not have a
severe impairment will be found not disabled at step two. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A claimant with an impairment that meets
or equals one in the Listing of Impairments will be found disabled at step three. 20
C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
Prior to considering steps four and five, the Commissioner must assess the
claimant’s residual functional capacity (RFC), which will be used to determine the
claimant’s ability to work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A

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The Listing of Impairments, (“Listings”) found at 20 C.F.R. Part 404, Subpart
P, Appendix 1, are used to make determinations of disability based upon the presence of
impairments that are considered severe enough to prevent a person from doing any
gainful activity. 20 C.F.R. § 404.1525.
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claimant who can perform past relevant work will be found not disabled at step
four. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five the burden
shifts to the Commissioner to show other work the claimant can do. Foote v.
Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). To satisfy this burden, the
Commissioner must produce evidence of work in the national economy that the
claimant can do based on the claimant’s RFC, age, education, and work
experience. 20 C.F.R. §§ 404.1512(f), 416.912(f). A claimant who can do other
work will be found not disabled at step five. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920 (a)(4)(v). A claimant who cannot do other work will be found disabled.
Id.
In the present case, Claimant is seeking Title II disibility insurance benefits.
Based on Claimant’s earnings records, he has sufficient quarters of coverage to
remain insured through December 31, 2007. R. 17. Therefore, Claimant must
establish that he became disabled on or before December 31, 2007, his date last
insured (“DLI”). See 42 U.S.C. § 423(d)(1)(A); Wilson v. Barnhart, 284 F.3d
1219, 1226 (11th Cir. 2002).
The Administrative Law Judge (ALJ) determined that Claimant was not
engaged in substantial gainful activity, and found that claimant had the severe
impairments of “depression/bipolar disorder and anxiety/panic disorder.” R. 19.

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He concluded that Claimant did not suffer from a listed impairment. R. 19. The
ALJ found that Claimant had the residual functional capacity (RFC) to perform “a
full range of work at all exertional levels.” R. 21. However, he included additional
nonexertional limitations related to Claimant’s mental impairments. R. 21. With
this RFC, the ALJ found Claimant unable to perform his past relevant work. R. 26.
When a claimant is not able to perform the full range of work at a particular
exertional level, the Commissioner may not exclusively rely on the MedicalVocational Guidelines (“the grids”) to establish the presence of other jobs at step
five.2 Foote, 67 F.3d at 1558-59. The presence of a non-exertional impairment
(such as pain, fatigue, or mental illness) also prevents exclusive reliance on the
grids. Id. at 1559. In such cases “the [Commissioner] must seek expert vocational
testimony.” Id. (alteration supplied). Based on Claimant’s RFC, and the testimony
of a vocational expert (VE), the ALJ found that claimant could perform other work
in the national economy. R. 26-27, 53-55. Therefore, the ALJ found that Claimant
was not disabled at step five of the sequential evaluation framework. R. 27.
III. FACTUAL BACKGROUND
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The Medical-Vocational Guidelines, found at 20 C.F.R. Part 404, Subpart P,
Appendix 2, are used to make determinations of disability based upon vocational factors
and the claimant’s residual functional capacity when the claimant is unable to perform his
vocationally relevant past work. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(a).
Such determinations, however, are only conclusive when all of the criteria of a particular
rule are met. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(a).
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Claimant filed an application for a period of disability and disability
insurance benefits on August 4, 2008, and alleges he became disabled on January
1, 2004. R. 16. Claimant was 41 years old on his DLI. R. 26. He has a high school
education and past relevant work as a cashier, newspaper carrier, truck driver,
cook, and grinder. R. 26.
When Claimant applied for disability insurance benefits, he alleged that his
ability to work was limited due to depression, suicidal ideation, and anxiety. R. 92.
At that time, he listed his height as 6’2” tall. R. 91. During the administrative
hearing, he testified that, as of his DLI, he estimated his weight as “between 250
and 300” or “maybe a little less.” R. 48. On appeal, Claimant’s only argument is
that his morbid obesity was not properly considered by the ALJ in reaching his
decision. Pl.’s Br. 3.
The only treatment notes prior to Claimant’s DLI are from mental healthcare
professionals. These sources often describe Claimant as morbidly obese, or obese,
but there is no indication they were treating him for his physical conditions. Eg.
R. 181, 250. In a treatment note dated December 11, 2007 — near Claimant’s DLI
— Dr. Doody estimated claimant’s weight as 325-350 pounds. R. 244.
The treatment records show that Claimant was treated for depression and
anxiety from 2006 until October 26, 2007, by Dr. Love, a psychiatrist, and other

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staff at the Mental Health Center of North Central Alabama. R. 181-242. At the
time he was discharged from treatment, his GAF was assessed as 58.3 R. 181. On
November 26, 2007, Claimant began treatment with Dr. Doody, a psychiatrist. R.
247-250. Dr. Doody diagnosed Major Depression and an anxiety disorder. R. 250.
She assigned Claimant a GAF score of 59-60. R. 250. When Claimant was seen
by Dr. Doody on December 11, 2007, she noted that claimant was getting better
on his medications. R. 244. At this visit, Dr. Doody indicated Claimant’s
diagnoses were Depressive Disorder and Panic Disorder, with Agoraphobia. R.
244.
Claimant continued to be treated by Dr. Doody after his DLI. When Dr.
Doody saw Claimant on February 5, 2008, he reported being more depressed for
“the past few weeks.” R. 259. On March 20, 2008, Dr. Doody noted that Claimant
reported he was “a bit better” before he ran out of his medications. R. 258. On
April 11, 2008, Dr. Doody noted that Claimant’s mood was “pretty good” with no
panic attacks. R. 257.

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The Global Assessment of Functioning (GAF) Scale is used to report an
individual’s overall level of functioning. Diagnostic and Statistical Manual of Mental
Disorders 32 (4th Edition, Text Revision) (“DSM-IV-TR”). A rating of 51-60 reflects:
“Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers.)” DSM-IV-TR at 34 (emphasis in
original).
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Claimant was seen by Melanie Barraza, LCSW, for individual therapy
beginning November 12, 2007. R. 306-07. When Claimant saw Ms. Barraza on
December 2, 2007, she noted that his medication “takes [the] edge off irritability
. . . 4 out of 10 depression wise.” R. 305. On December 21, 2007, Claimant
“denie[d] severe symptoms of [depression] or anxiety,” and reported that he
“sleeps and eats well.” R. 305. After his DLI, Claimant saw Ms. Barraza on
January 4, 2008, who noted that she explored Claimant’s “desire to work vs.
moving forward with [Social Security Disibility].” R. 303. She noted that “[t]here
seems to be a lack of motivation to do anything.” R. 303. On January 25, 2008,
Ms. Barraza discussed with Claimant his “continued need to explore hobbies” and
that “his isolation [with] boredom may contribute to depression.” R. 302.
There are additional mental health treatment records after Claimant’s DLI.
However, they are not relevant to his condition prior to his DLI.
IV. ISSUES PRESENTED
Claimant’s sole argument on appeal is that the ALJ failed to properly
consider his obesity. He argues that the ALJ erred in finding his obesity was not
a severe impairment, and also that the ALJ did not properly consider his obesity
in the overall disability determination.
V. DISCUSSION

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Social Security Ruling (SSR) 02-01p provides guidance in the evaluation of
obesity. It provides that “[t]here is no specific level of weight or BMI that equates
with a ‘severe’ or ‘not severe’ impairment,” and that “descriptive terms for levels
of obesity (e.g., ‘severe,’ ‘extreme,’ or ‘morbid’ obesity)” will not establish
whether obesity is a “severe” impairment. SSR 02-1p, 2002 WL 34686281, *4
(S.S.A.) (alteration supplied).

Rather, an ALJ must “do an individualized

assessment of the impact of obesity on an individual’s functioning.” Id. The
Ruling also states that obesity must be considered in assessing a claimant’s RFC
by assessing “the effect obesity has upon the individual’s ability to perform routine
movement and necessary physical activity within the work environment.” Id. at *
6.
Although Claimant argues that the ALJ did not consider his obesity in “the
overall disability determination,” a review of the ALJ’s decision shows that he
considered Claimant’s obesity at the appropriate steps in the sequential evaluation
process. The ALJ evaluated whether Claimant’s obesity was a severe impairment,
and found that it did not cause more than minimal functional limitations. R. 19.
In reaching that decision, the ALJ emphasized the absence of evidence in the
record documenting limitations caused by Claimant’s obesity: “More importantly,
although obesity would have been a risk factor for numerous other medical

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problems, there is nothing in the record through December 31, 2007 to support
more than minimal functional limitations due to his obesity.” R. 19. Therefore, the
ALJ found that Claimant’s “obesity was ‘not severe’ on or before . . . December
31, 2007.” R. 19.
The ALJ also recognized that he had to consider Claimant’s obesity in
assessing his RFC, even if it was not a severe impairment. He stated that in
making his RFC determination, “the undersigned must consider all of the
claimant’s impairments, including impairments that are not severe.” R. 18.
Therefore, in assessing Claimant’s RFC, the ALJ noted that his obesity had been
addressed earlier, and was found not to result in more than minimal functional
limitations. R. 22.
This is not a case such as Walker v. Bowen, where the ALJ did not mention
many of the claimant’s impairments. 826 F.2d 996, 1001 (11th Cir. 1987) (finding
that the ALJ did not consider the combination of claimant’s impairments before
determining her RFC when he made specific reference to only two impairments
and failed to mention five other impairments except to find they did not establish
disabling pain). In the present case, there is ample evidence showing the ALJ
considered all of Claimant’s impairments (including his obesity) and their
combined impact on his ability to perform work related activities. Therefore, the

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ALJ did not fail to properly consider Claimant’s obesity in combination with his
other impairments. See Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987)
(finding that the ALJ considered the claimant’s combined impairments because of
his lengthy consideration of those conditions and his well-articulated findings as
to their effect on the claimant).
Additionally, the ALJ’s finding that Claimant’s obesity caused no more than
minimal functional limitations is reasonable based on the evidence of record.
When he applied for disability in August 2008, Claimant did not allege that his
obesity limited his ability to work. He listed only mental impairments as
conditions that affected his ability to work, and he included no physical limitations
when explaining how he was limited by his impairments. R. 92. At his hearing,
Claimant was asked about his weight on December 31, 2007, and he responded
that he weighed “between 250 and maybe 300 at that time, maybe a little less.” R.
48. In response to the next question — which was how far he could walk without
having to stop to rest — he testified as follows: “I could go a fairly good distance.
I mean maybe a half a mile or so . . . .” R. 48. Therefore, Claimant’s own reports
of his limitations do not support significant limitations caused by his obesity prior
to his DLI.

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The medical records also fail to document any work-related limitations
caused by Claimant’s obesity prior to his DLI. Although there are notations
indicating Claimant was morbidly obese, such notations alone are insufficient to
establish that his obesity caused any limitation in his ability to work. See Wind v.
Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005) (unpublished) (“[A] diagnosis
or a mere showing of ‘a deviation from purely medical standards of bodily
perfection or normality’ is insufficient; instead, the claimant must show the effect
of the impairment on her ability to work.”) (citing McCruter v. Bowen, 791 F.2d
1544, 1547 (11th Cir.1986)). Therefore, the ALJ’s findings as to the limitations
caused by Claimant’s obesity prior to his DLI are supported by the medical
evidence.
For these reasons, the court finds that the ALJ applied the proper legal
standards in assessing the vocational impact of Claimant’s obesity. Additionally,
his factual findings are reasonable based on the evidence of record. Accordingly,
the ALJ’s decision is supported by substantial evidence.
VI. CONCLUSION AND ORDER
The court concludes the ALJ’s determination that Claimant is not disabled
is supported by substantial evidence, and that the ALJ applied the proper legal
standards in arriving at this decision. Accordingly, the Commissioner’s final

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decision is AFFIRMED. Costs are taxed against claimant. The Clerk is directed
to close this file.
DONE this 11th day of April, 2014.

______________________________
United States District Judge

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