Sutton v. Social Security Administration, Commissioner

Filing 18

MEMORANDUM OPINION as more fully set out therein. Signed by Magistrate Judge Harwell G Davis, III on 5/2/2016. (AHI )

FILED
2016 May-02 PM 02:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

SARAH SUTTON,
Plaintiff
vs.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant

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) Case No. 5:14-cv-01697-HGD
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MEMORANDUM OPINION
Plaintiff, Sarah Sutton, protectively filed a Title II application for a period of
disability and disability insurance benefits on September 29, 2010. She also filed a
Title XVI application for supplemental security income on October 12, 2010. In both
applications, plaintiff alleged disability beginning August 15, 2010. These claims
were initially denied on July 26, 2011. Plaintiff requested a hearing before an
Administrative Law Judge (ALJ) and a hearing was held before Hon. Gloria W.
Green on May 4, 2012. C. Lamar Crocker, an impartial vocational expert, also
appeared at the hearing. Plaintiff was represented by counsel. (Tr. 56).

I.

ALJ Decision
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 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. § 404.1520(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 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 first must determine the claimant’s residual functional
capacity (RFC), which refers to the claimant’s ability to work despite his
impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines
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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 that the
claimant is 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 his 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 the RFC, age, education and work experience.

20 C.F.R.

§§ 404.1520(g) and 404.1560(c).
Following this five-step procedure, the ALJ found that plaintiff has the
following severe impairments: morbid obesity, a hearing loss, a major depressive
disorder, and rule out post-traumatic stress disorder. (Tr. 58). The ALJ further found
that plaintiff’s condition did not meet or medically equal the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R.
§§ 404.1520(d), 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926.
(Tr 59). The ALJ further found, based on the entire record, that plaintiff has the RFC
to perform a full range of work at all exertional levels but with the following nonPage 3 of 18

exertional limitations.

She would require work that does not require close

cooperation or interaction with co-workers or the general public and work activity
that does not demand close supervision. She would also need a quiet environment in
which she could hear normal conversations. (Tr. 59).
The ALJ also found that plaintiff is unable to perform any past relevant work.
(Tr. 64). Based on plaintiff’s age, work experience and RFC, and the testimony of
a vocational expert (VE), the ALJ concluded that there are jobs that exist in
significant numbers in the national economy that plaintiff can perform, including the
representative occupations of photo copy machine operator and collator operator,
light unskilled positions, and the unskilled sedentary job of a laminator. All these
representative occupations exist in significant numbers in the Alabama and national
economy. Therefore, the ALJ concluded that plaintiff has not been under a disability
as defined in the Social Security Act. (Tr. 59).
II.

Plaintiff’s Argument for Reversal
Plaintiff asserts that the ALJ erred when she failed to fully consider the impact

of plaintiff’s obesity on her mental limitations. (Doc. 14, Plaintiff’s Brief, at 11-14).
III.

Standard of Review
Judicial review is limited to 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
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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. Brown, 792 F.2d 129,
131 (11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates 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,
re-evaluate 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 701.

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IV.

ALJ Findings
The ALJ noted in her decision that plaintiff testified at the hearing that she is

5 feet 8 inches tall and weighs 350 pounds. She stated that she has gained 125
pounds due to her depression. She reported that she was unable to work due to her
depression. She reported crying spells every other day and indicates she experiences
suicidal thoughts once or twice a week. She also reported problems with her ears,
poor hearing, and poor concentration. She stated that her last hearing test was in
2010. She lives with her brother. (Tr. 60).
The ALJ found that plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, she further found
that plaintiff’s statements concerning the intensity, persistence and limiting effects
of these symptoms ae not credible to the extent that they are inconsistent with the
above RFC assessment. (Tr. 60).
According to the ALJ, plaintiff alleged an inability to work, yet continued to
show a significant level of functioning when she completed the Function ReportAdult in November 2010. She showed no problems performing her personal care and
indicated she cleaned, did laundry, read books, and played games on the computer.
She went outside daily and shopped in stores every month. She was able to pay bills,
count change, handle a savings account, and use a checkbook or money orders. She
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talked to friends and family daily and showed no limitations with paying attention as
long as she could hear. As a result, the ALJ found that plaintiff has continued to
show a level of functioning inconsistent with the severity of limitations that she
alleges. Furthermore, the medical evidence has not supported the limitations she
alleges. (Tr. 60).
With regard to her alleged hearing loss, the ALJ noted that records show that
plaintiff has a long history of treatment for ear problems. In December 2002, records
from the Barranco Clinic show that plaintiff reported when she was a young girl, she
had been told that she had a 70% hearing loss in her left hear. However, since her
recent adeno-tonsillectomy, she reported that her hearing had actually improved. An
audiogram at that time reflected perfectly normal hearing in her right ear and mild
neurosensory loss in her left ear at about a 20-decibel level. The tympanograms were
both normal. (Tr. 60).
A consultative physical examination was performed by Dr. S. Bhat, M.D., on
May 20, 2011. On examamination, plaintiff was 5 feet 8 inches tall and weighed 250
pounds, with a body mass index of 38. Her hearing was found to be normal in a quiet
room, but in a noisy place, she claimed she could not hear. Rhinne’s testing was
normal in her right ear, but abnormal in the left ear. Weber’s testing was centralized.

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The assessment noted plaintiff’s obesity and hearing loss, but did not show her to be
significantly limited by those impairments. (Tr. 61, 392-94).
A post-hearing consultative examination was performed by L.C. Simpson,
M.D., on September 6, 2012. On examination, plaintiff was 5 feet 8 inches tall and
weighed 300 pounds, with a body mass index of 45.61. Communication was normal
and she had normal voice quality. The assessment showed functional hearing loss in
the left ear, but the hearing loss in her right ear was “suspicious” and created
“credibility issues.” (Tr. 577).
A consultative physical examination in February 2010 by Dr. Mark Burns,
M.D., failed to support a severity of limitations that would prevent work activity.
Plaintiff reported that she was able to hear and understand normal conversational
speech without hearing aids. Despite the severity of her alleged limitations, she had
not followed up with specialists she had seen for her reported hearing problems.
Plaintiff also alleged an inability to work as the result of depression. Records
show that she was treated for depression at Pathways, Inc., in May 2010 after she
experienced deaths in her family. She reported that she did not want to be around
people and had put on a significant amount of weight. She was diagnosed with a
major depressive disorder, single episode, with a GAF score of 50. An additional
visit in June 2010 failed to show those limitations were sustained, and the ALJ noted
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that continuing treatment for this condition has not been found in the records. (Tr.
62).
In fact, there is no evidence of additional psychological treatment found until
February 2012, when plaintiff was admitted to the hospital for safety and stabilization
purposes. She reported that she had suffered severe depression since late 2011 and
was diagnosed with major depression without psychotic features, and a GAF score
of 30. She was started on medication and referred to a mental health center for
outpatient treatment. (Tr. 511-12). According to the ALJ, treatment at the mental
health center did not show that the severity of plaintiff’s symptoms persisted. Later
that month, plaintiff reported that she was feeling much better with her medication
and a psychiatric evaluation in April 2012 showed a GAF score of 70-75. (Tr. 62;
Exs. 18F, 21F).
Plaintiff’s psychological limitations were evaluated by Dr. Michael Holt, M.D.,
at the request of the state agency. This examination occurred on July 11, 2011.
Plaintiff reported that she had problems with depression and anxiety since
adolescence. She tried to avoid people and be alone as much as possible. She
reported occasions of uncontrollable crying and hearing problems. Although she had
difficulty providing a clear description of her typical daily activities, plaintiff was
able to perform her personal care. She enjoyed eating, watching television and
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reading sometimes. On examination, grooming and hygiene were adequate and she
had no abnormalities with her speech or language skills. Despite her report of
hearing problems, she seemed to have no problem hearing questions or comments by
the examiner. The examiner noted that plaintiff was moderately depressed and she
was mildly anxious. She also had no significant limitations with fund of information
or abstraction, but her thought process was somewhat personalized, disorganized and
influenced by her emotional state. There were no specific abnormalities in her
thought content, but her judgment seemed mildly impaired by her mood and anxiety
issues. Dr. Holt diagnosed plaintiff with anxiety disorder, a depressive disorder, and
rule-out PTSD with a GAF of 50. However, the ALJ gave little weight to this part of
the opinion because she found it inconsistent with additional opinions of Dr. Holt,
which showed only moderate limitations, with moderate restriction of activities and
moderate constriction of interest. The ALJ also held that, although Dr. Holt noted a
marked impairment in her interpersonal coping skills and her ability to deal with
conflict and stress, and indicated she could not function independently at present, this
opinion is inconsistent with other opinions he gave. Those opinions showed
plaintiff’s ability to understand, remember and carry out instructions in the workplace
was only mildly to moderately impaired, and that her ability to respond appropriately
to co-workers, supervision and work pressures was moderately impaired. (Tr. 63).
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The ALJ did give significant weight to the moderate limitations set out in the
opinion of Dr. Holt because they are consistent with the treatment plaintiff has
received and the level of activities she continues to report. However, Dr. Holt’s
opinions that suggested more significant limitations were given little weight by the
ALJ because evidence does not show sustained limitations. Specifically, the ALJ
notes that plaintiff did not seek treatment from June 2011 until February 2012. At the
latter date, she was prescribed medications and referred to a mental health center. By
April 2012, she showed significant improvement and considerable weight was given
to the GAF score of 70-75 assessed in the psychiatric evaluation at the mental health
center at that time. (Tr.63).
The ALJ further stated that, although the opinion from Pathways in May 2010
showed serious limitations, little weight was given to that opinion because this was
prior to her alleged onset date and evidence did not show she continued to experience
the severity of limitations shown when she was admitted to the hospital in February
2012, as plaintiff showed significant improvement with treatment. The April 2012
GAF score showed only transient symptoms, which would not effect significant or
sustained functional limitations. (Tr. 63).
The ALJ gave significant weight to the state agency medical consultant that
showed plaintiff would have no more than moderate limitations because the ALJ

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found this opinion to be consistent with the treatment she has received and consistent
with the level of activities she continued to report. The ALJ noted that plaintiff was
able to perform her personal care, played games on the computer, went outside daily,
talked with family and friends, and shopped in stores. According to the ALJ,
plaintiff’s continuing activities are inconsistent with a severity of limitation that
would prevent all work activity. Based on this, the ALJ concluded that plaintiff
would have no more than mild to moderate limitations related to her psychological
impairments. (Tr. 63).
It was also noted that the state agncy medical consultant opined that plaintiff
had no exertional limitations. The ALJ gave significant weight to this opinion
because the evidence did not support significant limitations. The ALJ particularly
noted that plaintiff is obese, with a weight of 300 pounds and a body mass index of
45.61, as reported during a September 2012 consultative physical examination.
However, the ALJ stated that the record evidence does not state that plaintiff’s weight
significantly limited her or resulted in impaired functioning. Likewise, the record did
not reflect that her weight impacted on her musculoskelatal system or her general
health as to cause her treating physician to diagnose her with impairments secondary
to or in combination with obesity. The ALJ also noted that, at the hearing, plaintiff
did not allege functional limitations due to her weight. (Tr. 62-63).

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The ALJ also found that other reports in the record failed to support plaitniff’s
allegations regarding her hearing problems. The ALJ noted that a consultative
physical examination by Dr. Mark Burns, M.D., in February 2010, just prior to
plaintiff’s alleged onset date, showed that her physical examination was within
normal limits. Dr. Burns noted that plaintiff had decreased hearing, but was able to
hear and understand normal conversational speech. (Tr. 64; Ex. 1F).
An additional statement from Dr. Michael Holt, Ph.D., in July 2011, showed
plaintiff had no difficulty hearing his questions and comments, and he stated her
hearing “did not prove to be a barrier.” (Tr. 64; Ex. 10F). The ALJ also noted that
plaintiff’s examination by Dr. L.C. Simpson, M.D., in September 2012 reflected that
he could communicate with plaintiff in a conversational voice. (Tr. 64; Ex. 23F at
577).
V.

Discussion
Plaintiff asserts that the ALJ did not fully consider the impact of her obesity on

her mental limitations. SSR 02-1p indicates obesity “may” cause mental limitations,
such as a lack of mental clarity from related sleep apnea or a decrease in social
functioning. SSR 02-1p recognizes that obesity can cause further degradation of a
claimant’s physical impairment and instructs the ALJ to assess the effect of a

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claimant’s obesity on the claimant’s ability to perform exertional, postural and social
functions. See SSR 02-1p, 2002 WL 34686281, at *3.
The ALJ considered plaintiff’s obesity by specifically discussing the medical
evidence related to plaintiff’s obesity when formulating the RFC. (See Tr. 63-64).
The ALJ stated at step four that she considered “the entire record.” (Tr. 59). The
ALJ explicitly stated that she considered the plaintiff's medically determinable
impairments in determining whether those impairments could be expected to cause
her alleged symptoms. (Tr. 59-60). The Eleventh Circuit has held that a statement
by the ALJ that she considered the impairments in combination is sufficient to show
that the ALJ considered the combined effect of plaintiff’s impairments. See Jones v.
Dep’t of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991) (noting that
the statement that the claimant does not have “an impairment or combination of
impairments listed in, or medically equal to one listed in Appendix 1, Subpart P,
Regulation No. 4” indicated that the ALJ considered the combined effect of
appellant’s impairments); see also Wilson v. Barnhard, 284 F.3d 1219, 1224-25 (11th
Cir. 2002) (holding that an ALJ’s statement that the claimant “did not have an
impairment or combination of impairments listed in, or medically equal to one listed
in Appendix 1, Subpart P, Regulations No. 4 . . . constitute[d] evidence that [the ALJ]
considered the combined effects of [the claimant’s] impairments”).

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The ALJ found plaintiff’s severe impairments to include obesity and properly
evaluated her obesity in accordance with SSR 02-1p. (Tr. 58, 63-64). The ALJ also
considered plaintiff’s nonexertional limitations and found that she could only perform
work that did not require close cooperation or interactions with co-workers or the
general public and work activity that did not require close supervision. (Tr. 59).
In addition, the ALJ gave significant weight to the opinion of Dr. Michael Holt,
Ph.D., who considered plaintiff’s weight during his examination, and opined that
plaintiff’s ability to understand, remember, and carry out instructions in the
workplace was only mildly to moderately impaired and that plaintiff’s ability to
respond appropriately to supervision, co-workers and work pressures was moderately
impaired. (Tr. 63, 435, 437, 439). The ALJ also gave significant weight to the state
agency psychological consultant who considered the evidence, including the opinion
of Dr. Holt, in determining that plaintiff retained the ability to understand, remember,
and carry out short and simple instructions and to concentrate for two-hour periods
on simple tasks with customary breaks. (Tr. 63, 472). Neither of these opinions
indicated that plaintiff’s obesity imposed mental limitations not included in the RFC,
thus supporting the conclusion that the ALJ considered plaintiff’s obesity in
compliance with SSR 02-1p.

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Furthermore, plaintiff did not allege a specific mental impairment that was not
already accounted for in her FRC. While plaintiff complains that her weight gain was
caused by her depression, this does not show that she had any additional work
limitations as a result. In addition, plaintiff did not allege that she was disabled due
to obesity. She did not mention obesity as a basis for her disability in her disability
reports or at her hearing. She only testified as to her weight at that time and her belief
that she had gained the weight as a result of her depression. (Tr. 80-81). Given her
failure to allege that she was disabled due to her obesity when she filed her
applications or at her hearing, the ALJ was not required to address her weight.
Sanders v. Astrue, 2011 WL 5118808 (M.D.Ala. Oct. 28, 2011).
Moreover, the Eleventh Circuit and other district courts within this circuit have
found that an ALJ did not commit reversible error in circumstances similar to this
case. See, e.g., Castel v. Comm’r of Soc. Sec., 355 Fed.Appx. 260 (11th Cir. 2009)
(finding no error where the “record reflects that the ALJ considered [the claimant’s]
obesity[,] . . . the ALJ made specific reference to SSR 02-1p in his ruling[,]” and the
medical evidence did not support “specific functional limitations” attributable to
obesity); James v. Barnhart, 177 Fed.Appx. 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

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plaintiff did not complain that obesity was a functional impairment); Gary v. Astrue,
2009 WL 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”); Vickers v. Astrue, 2009 WL 722273, at *14 (N.D.Fla. Mar. 18, 2009)
(remand for failure to mention obesity was not required where the claimant did not
show how his obesity impacted his ability to work); Ingram v. As true, 2008 WL
2943287, at *6 (M.D.Fla. July 30, 2008) (finding that even though the claimant’s
weight was noted repeatedly throughout the record, the ALJ's failure to mention
obesity or address it in accordance with SSR 02-1p did not constitute grounds for
reversal where the claimant had not identified any evidence suggesting that his RFC
was affected by his obesity); Broz v. Astrue, 2008 WL 1995084, at *15 (N.D.Fla.
May 5, 2008) (“[B]ecause Plaintiff has not demonstrated that obesity reduced his
functional capacity, the ALJ properly declined to consider it as part of his list of
Plaintiff’s severe impairments.”).
Like the cases cited above, here, plaintiff failed to explain how her obesity
caused further limitations than those found by the ALJ, and she did not identify any

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reliable medical opinions supporting limitations beyond those stated in her RFC
resulting from her obesity. Consequently, she is entitled to no relief on this basis.
VI.

Conclusion
Because the ALJ’s decision is supported by substantial evidence, the decision

of the Commissioner is due to be AFFIRMED. A separate order will be entered.
DONE and ORDERED this 2nd day of May, 2016.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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