Appling v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION Signed by Judge Virginia Emerson Hopkins on 6/22/12. (SAC )

FILED
2012 Jun-22 AM 09:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
HELEN EARL APPLING,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner,
Social Security Administration,
Defendant.

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) Case No.: 7:11-CV-03260-VEH
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MEMORANDUM OPINION
Plaintiff Helen Earl Appling (hereinafter “Ms. Appling”) brings this action
pursuant to 42 U.S.C. § 405(g), § 205(g) of the Social Security Act. She seeks review
of a final adverse decision of the Commissioner of the Social Security Administration
(hereinafter “Commissioner” or “Secretary”), who denied her application for
Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”).1
Ms. Appling timely pursued and exhausted her administrative remedies available

1

In general, the legal standards applied are the same regardless of whether a claimant
seeks Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI). However,
separate, parallel statutes and regulations exist for DIB and SSI claims. Therefore, citations in
this opinion should be considered to refer to the appropriate parallel provision as context dictates.
The same applies to citations of statues or regulations found in quoted court decisions.

before the Commissioner. The case is ripe for review pursuant to 42 U.S.C. §
405(g),2 § 205(g) of the Social Security Act.
FACTUAL AND PROCEDURAL HISTORY
Ms. Appling was a 57-year-old female at the time of her hearing before the
administrative law judge (hereinafter “ALJ”). (Tr. 45). She has a ninth grade
education. (Id). Her past relevant work experience includes work as a cashier. (Tr.
56). Ms. Appling claims she became disabled on December 10, 2006. (Tr. 16, 97).
At the hearing, her onset date was amended to be July 18, 2007. (Tr. 21). Ms. Appling
complains of diabetes mellitus, osteoarthritis, cataracts, and anemia. (Tr. 18, 46, 49,
275). Her last period of work ended on December 10, 2006. (Tr. 132).
Ms. Appling protectively filed her application for a period of disability and
DIB on December 10, 2007. (Tr. 16, 62). She also protectively filed a Title XVI
application for SSI on December 10, 2007. (Tr. 16, 60). The claim was denied by the
Commissioner on January 18, 2008. (Tr. 16, 64, 69). Ms. Appling filed a timely
written request for a hearing on February 29, 2008. (Tr. 16, 75). The hearing was
held on August 24, 2009. (Tr. 16). The ALJ concluded that Ms. Appling was not
disabled and denied her application on January 29, 2010. (Tr. 21). Ms. Appling
submitted a timely request for review of the ALJ’s decision to the Appeals Council
2

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
2

on February 26, 2010. (Tr. 9). The review was denied by the Appeals Council on July
13, 2011, and thus, the ALJ’s decision became the Commissioner’s final decision on
that date. (Tr. 1).
Ms. Appling filed a Complaint on September 9, 2011, which asks this court to
review the ALJ’s decision. (Doc. 1). This court has carefully considered the record
and for the reasons stated below, reverses the Commissioner’s denial of benefits, and
remands the case for further development and consideration.3
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The 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.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”

3

The undersigned has rendered several other comparable decisions which have reversed
the Commissioner due to an underdeveloped record and/or an inadequately supported residual
functional capacity (“RFC”) determination from which the framework, analysis, and disposition
of this case persuasively flow. See, e.g., Howard v. Astrue, No. 3:10-CV-527-VEH, (Docs. 15,
16) (Dec. 16, 2010) (reversing and remanding when RFC finding is not supported by substantial
evidence); Mahaley v. Astrue, No. 5:09-CV-0347-VEH, (Docs. 12, 13) (N.D. Ala. Feb. 18, 2010)
(same); Glover v. Astrue, No. 3:09-CV-0033-VEH, (Docs. 15, 16) (N.D. Ala. Mar. 4, 2010)
(same); Stewart v. Astrue, No. 5:11-CV-2103-VEH, (Docs. 10, 11) (N.D. Ala. May 14, 2011)
(same); Rose v. Astrue, No. 1:11-CV-1186-VEH, (Docs. 10, 11) (N.D. Ala. Nov. 1, 2011)
(same).
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Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.4 The Regulations define “disabled” as the
“inability to do any substantial gainful activity by reason of any medically
4

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of May 31, 2012.
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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 (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment
listed by the Secretary;
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to former applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th
Cir. 1999); accord, McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
“Once the claimant has satisfied steps one and two, she will automatically be found
disabled if she suffers from a listed impairment. If the claimant does not have a listed
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impairment but cannot perform her work, the burden shifts to the Secretary to show
that the claimant can perform some other job.” Pope, 998 F.2d at 477; accord, Foote
v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ found that Ms. Appling had not engaged in substantial gainful activity
since the alleged onset of her disability on July 18, 2007. (Tr. 18). Thus, Ms.
Appling satisfied step one of the five-step test. 20 C.F.R. § 404.1520 (b).
Under step two, the ALJ concluded that Ms. Appling’s diabetes mellitus,
cataracts, anemia, and osteoarthritis are considered “severe” based on the
requirements in Regulations 20 C.F.R. § 404.1520 (c) and §416.920 (c). (Tr. 17-18).
Accordingly, the ALJ concluded that Ms. Appling satisfied the second step of the
sequential disability evaluative process. 20 C.F.R. § 404.1520 (c).
At step three, the ALJ determined that Ms. Appling’s medically determinable
impairments, in combination, do not meet or medically equal a listed impairment in
20 C.F.R., Part 404, Subpart P, Appendix 1 of the Social Security Regulations. (Tr.
19).
At the hearing, the vocational expert testified that, according to the Dictionary
of Occupational Titles, the work of a cashier is normally classified as light (Tr. 57).
6

However, it was found that Ms. Appling has performed the job of cashier “at a
medium level” because her past jobs have “involved stocking as well as janitorial
work.” (Tr. 58).
The ALJ then evaluated Ms. Appling’s residual functional capacity (“RFC”)
at step four, and Ms. Appling was found to have “the residual functional capacity to
perform the full range of light work 5 as defined, except for the limitations on her
vision.” (Tr. 19).
In reliance on the above sequential process as well as the testimony from the
vocational expert, the ALJ concluded that Ms. Appling’s impairments do not prevent
her from returning to her past relevant work as a cashier “as generally performed, at
the light level, although this work was performed at the medium exertional level in
the past.” (Tr. 21).
It was unnecessary for the ALJ to continue to step five in the sequential
analysis due to his finding that Ms. Appling was able to perform her past relevant

5

20 C.F.R. §§ 404.1567(b) and 416.967(b) provide the following definition for light

work:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities. If someone can do light
work, we determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
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work. (Tr. 21). Accordingly, the ALJ ruled that Ms. Appling was not under a
disability at any time though the date of the ALJ’s decision and therefore was not
eligible for DIB under §§216(i) and 223(d) of the Social Security Act. (Id.). Further,
the ALJ found that Ms. Appling was not eligible for SSI payments under
§1614(a)(3)(A) of the Social Security Act. (Id.).
ANALYSIS
The court can reverse a finding of the Secretary if it is not supported by
substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).6
The court has carefully reviewed the record and finds that this case should be
remanded for further development. Under the law, the administrative law judge must
develop a full and fair record. Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.
1997). In this appeal, Ms. Appling generally challenges whether substantial evidence
supports the Commissioner’s denial of her disability applications. The court turns to

6

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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the lack of any treating or examining medical source statement(s)7 (“MSS”) by a
physician in support of the ALJ’s RFC conclusion that Ms. Appling is able to perform
a full range of light work and agrees with Ms. Appling that, under the circumstances
of her case, the Commissioner has committed a reversible error.8
I.

IN THE ABSENCE OF A SUPPORTING MEDICAL SOURCE
STATEMENT OR A PHYSICAL CAPACITIES EVALUATION BY A
PHYSICIAN THAT CONSIDERS THE IMPACT OF MS. APPLING’S
SEVERE IMPAIRMENTS, THE ALJ’S PHYSICAL RFC
DETERMINATION THAT SHE CAN PERFORM A FULL RANGE OF
LIGHT WORK IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
While Ms. Appling has the burden of proving her disability, the ALJ has a

basic obligation to develop a full and fair record. Cowart v. Schweiker, 662 F.2d 731,
732 (11th Cir. 1981) (citing Thorne v. Califano, 607 F.2d 218, 219 (8th Cir. 1979)).
When the ALJ has failed to develop a full and fair record, the court “has required the
Secretary to reopen the case ‘until the evidence is sufficiently clear to make a fair
determination as to whether the claimant is disabled or not.’” Thorne, 607 F.2d at
220 (quoting Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1974)).

7

Medical source statements are “medical opinions submitted by acceptable medical
sources, including treating sources and consultative examiners, about what an individual can still
do despite a severe impairment(s), in particular about an individual’s physical and mental
abilities to perform work-related activities on a sustained basis. Medical source statements are to
be based on the medical sources' records and examination of the individual; i.e., their personal
knowledge of the individual. Therefore, because there will frequently be medical and other
evidence in the case record that will not be known to a particular medical source, a medical
source statement may provide an incomplete picture of the individual's abilities.” SSR 96-5p.
8

As a result, the court does not reach the merits of the other issues presented on appeal.
9

The ALJ determined that:
Despite the claimant’s alleged difficulty standing and
walking, and visual limitations, the undersigned finds that the
claimant has the residual functional capacity to perform light
work as defined in 20 CFR 416.967(b). The claimant could lift no
more than twenty pounds occasionally and ten pounds frequently.
In addition, she should be capable of standing and walking for six
hours out of an eight-hour workday.
(Tr. 21).
In support of his RFC determination for Ms. Appling, the ALJ did not identify
a medical source opinion or a physical capacities evaluation conducted by a physician
that substantiates Ms. Appling’s ability to perform a full range of light work given her
severe impairments of diabetes mellitus, cataracts, anemia, and osteoarthritis. Such
an omission from the record is significant to the substantial evidence inquiry
pertaining to the ALJ’s RFC determination. See, e.g., Rohrberg v. Apfel, 26 F. Supp.
2d 303, 311 (D. Mass. 1998) (“The ALJ failed to refer to-and this Court has not
found-a proper, medically determined RFC in the record.”).
This court recognizes the Eleventh Circuit’s view that “the absence of a physician’s
opinion regarding a plaintiff’s functional limitations does not morph into an opinion
that the plaintiff can work.” Clemmons v. Astrue, No. 3:06-CV-1058-VEH, slip op.
at 11 (N.D. Ala. Jun. 11, 2007) (discussing Lamb v. Bowen, 847 F.2d 698, 703 (11th
Cir. 1988)). “Such silence is equally susceptible to either inference, therefore, no
inference should be taken.” Clemmons, slip op. at 11 (citing Lamb, 847 F.2d at 703).
10

This court has similarly noted, “where the treating physician has not discharged the
patient from treatment and the physician has not made, and was not asked to make,
a determination regarding plaintiff’s functional capabilities, there is no substantial
evidence to support an ALJ’s functional capacity finding.” Clemmons, slip op. at 11
(citing Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir. 2001)).
The court acknowledges that the ALJ did refer in his opinion to several of Ms.
Appling’s medical records. (Tr. 18-20) (Exhibits 1F, 2F, 5F, 7F, 8F, and 9F).
However, the medical records are merely raw physical findings related to Ms.
Appling’s individual conditions. (See, e.g., Tr.180-209 (medical records from
Northport Medical Center); Tr. 210-16 (medical records from University Medical
Center); Tr. 221-32 (office treatment records from University Medical Center); Tr.
270-72 (consultative examination from Radiology Clinic LLC); Tr. 273-79
(consultative examination from Dr. Rose M. Betz); Tr. 280-83 (consultative
examination from Dr. Alexandre B. Todorov)).
The consultative examinations ordered by the ALJ simply examined Ms. Appling’s
individual complaints, and none of her physicians provided any assessment of her
impairments in vocational terms. See, e.g., Rohrberg, 26 F. Supp. 2d at 311 (“Where
the ‘medical findings in the record merely diagnose [the] claimant’s exertional
impairments and do not relate these diagnoses to specific residual functional
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capabilities such as those set out in 20 C.F.R. § 404.1567(a) . . . [the Commissioner
may not] make that connection himself.’”) (citation omitted).
As another district judge of this court aptly explained the RFC issue in the
context of an ALJ who comparably determined, without the benefit of a physical
capacities evaluation conducted by a physician, that the claimant was not disabled:
While the Record contains Ms. Rogers’ [s] medical treatment
history, it lacks any physical capacities evaluation by a physician. The
ALJ made his residual functional capacity evaluation without the
benefit of such evaluation. An ALJ is allowed to make some
judgments as to residual physical functional capacity where so little
physical impairment is involved that the effect would be apparent to
a lay person. Manso-Pizarro v. Secretary of Health and Human
Services, 76 F.3d 15 (1st Cir. 1996). In most cases, including the case
at bar, the alleged physical impairments are so broad, complex, and/or
ongoing that a physician’s evaluation is required. Id. In order to have
developed a full, fair record as required under the law, the ALJ should
have re-contacted Ms. Roger’s [sic] physicians for physical capacities
evaluations and/or sent her to physicians for examinations and
physical capacities evaluations. Further, Ms. Rogers’ [s] ability to lift
and to manipulate objects must be thoroughly evaluated by at least one
physician. These evaluations shall be obtained upon remand. Ms.
Rogers’ [s] residual functional capacity was not properly determined
nor supported by substantial evidence in this case.
Rogers v. Barnhart, No. 3:06-CV-0153-JFG, (Doc. 13 at 5) (N.D. Ala. Oct. 16,
2006) (emphasis added); see also Manso-Pizarro, 76 F.3d at 17 (“With a few
exceptions (not relevant here), an ALJ, as a lay person, is not qualified to interpret
raw data in a medical record.”) (emphasis added) (citations omitted); Rohrberg, 26
F. Supp. 2d at 311 (“An ALJ is not qualified to assess a claimant’s RFC on the basis
12

of bare medical findings, and as a result an ALJ’s determination of RFC without a
medical advisor’s assessment is not supported by substantial evidence.”) (emphasis
added) (citation omitted); cf. Giddings v. Richardson, 480 F.2d 652, 656 (6th Cir.
1973) (“To meet such a prima facie case it is not sufficient for the government to rely
upon inconclusive medical discussion of a claimant’s problems without relating them
to the claimant’s residual capacities in the field of employment.”) (emphasis added).
Comparable to Rogers, Manso-Pizarro, and other similar cases, a lay person
such as an ALJ is not able to discern Ms. Appling’s work-related exertional abilities
and appropriate non-exertional restrictions based upon the unfiltered information
contained in her medical records. Therefore, in the absence of a medical source
statement and/or any physical capacities evaluation conducted on Ms. Appling by a
physician that corroborates the ALJ’s determination that she is capable of performing
a full range of light work despite her severe impairments of diabetes mellitus,
cataracts, anemia, and osteoarthritis, the record has not been adequately developed.
See, e.g., Cowart v. Schweiker, 662 F.2d 731, 732 (11th Cir. 1981) (citing Thorne v.
Califano, 607 F.2d 218, 219 (8th Cir. 1979)); see also Sobolewski v. Apfel, 985 F.
Supp. 300, 314 (E.D.N.Y. 1997) (“The record’s virtual absence of medical evidence
pertinent to the issue of plaintiff’s RFC reflects the Commissioner’s failure to develop
the record, despite his obligation to develop a complete medical history.”) (citations
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omitted).
Likewise, the ALJ’s determination that Ms. Appling can perform a full range of light
work is not supported by substantial evidence. Accordingly, the decision of the
Commissioner is due to be reversed, and the case remanded for further proceedings
consistent with this memorandum opinion.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner’s final decision is
not supported by substantial evidence.

Accordingly, the decision of the

Commissioner will be remanded by separate order.
DONE and ORDERED this the 22nd day of June, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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