Summerville v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge R David Proctor on 7/7/2014. (AVC)
2014 Jul-07 PM 04:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
DORIS JEAN SUMMERVILLE,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
) CIVIL ACTION NO. 7:12-CV-1796-RDP
The plaintiff, Doris Jean Summerville, 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 her applications for disability insurance benefits and
Supplemental Security Income. Summerville timely pursued and exhausted her 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 the ALJ applied the proper legal standards.
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 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 “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 the Commissioner uses 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:
whether the claimant is currently engaged in substantial gainful activity;
whether the claimant has a severe impairment or combination of
whether the claimant’s impairment meets or equals the severity of an
impairment in the Listing of Impairments;1
whether the claimant can perform any of his or her past work; and
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),
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 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. Foot v. Chater, 67
F.3d 1553, 1559 (11th Cir. 1995). To satisfy this burden the Commissioner must produce evidence
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.
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, the Administrative Law Judge (ALJ) determined Summerville was not
engaged in substantial gainful activity, and found she had the severe impairments of lumbar spine
facet arthropothy, lumbar spine degenerative disc disease, obesity, obstructive sleep apnea, and left
ventricular hypertrophy. R. 15. The ALJ concluded Summerville did not suffer from a listed
impairment. R. 16. The ALJ found Summerville had the residual functional capacity (RFC) “to
perform less than a full range of sedentary work.” R. 16. Specifically, he found Summerville was
restricted as follows:
[T]he claimant can occasionally lift or carry ten pounds, and can frequently lift or
carry items of negligible weight. The claimant can stand and/or walk for two hours
with the option to sit/stand every thirty minutes. She can sit for six hours. She can
occasionally push and pull with the upper extremities. She can occasionally push
and pull with the lower extremities. She can occasionally balance; occasionally
stoop; occasionally kneel; occasionally crouch; occasionally crawl; and occasionally
climb ramps and stairs. She cannot climb ladders, ropes, or scaffolds. She can
occasionally reach overhead, bilaterally. She can frequently reach in other
directions, bilaterally. She can frequently handle, bilaterally. She can frequently
finger, bilaterally. She can tolerate occasional exposure to extreme heat and cold.
She can tolerate occasional exposure to pulmonary irritants. She should avoid all
exposure to unprotected heights and dangerous machinery. She will have one
unplanned absence per month.
R. 16. With this RFC, the ALJ found Summerville unable to perform her past relevant work. R. 28.
When a claimant is unable to perform the full range of work at a particular exertional level,
the Commissioner may not exclusively rely on the Medical-Vocational 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 nonexertional 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. Based on Summerville’s RFC and the testimony of a vocational expert (VE), the ALJ found
Summerville could perform other work in the national economy. R. 28-29, 57-59. Therefore, the
ALJ found she was not disabled at step five of the sequential evaluation framework. R. 30.
III. FACTUAL BACKGROUND
Summerville filed applications for a period of disability, disability insurance benefits, and
Supplemental Security Income (SSI) on October 23, 2008, and alleges she became disabled on June
1, 2006. R. 13. Summerville was 48 years old at the time of the ALJ’s decision. R. 28,30. She has
a high school education, and past relevant work as a school bus driver and as a cook. R. 28. She
testified she is disabled primarily due to back pain. R. 42. She also testified she has sleep apnea
and sometimes gets sleepy during the day. R. 48. She testified that she does not drive long
distances, and has to make stops while driving because of back pain and drowsiness. R. 48.
Medical records during the relevant time period show Summerville was seen at Fowler
Sports Medicine & Orthopaedics on May 8, 2007, reporting “discomfort in her back radiating into
her right leg for a several week period of time.” R. 223. Dr. Fowler’s physical examination showed
tenderness in the paraspinal muscles of the lumbar spine. R. 223. Straight leg raising reproduced
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).
discomfort in her back on the left, with mild radicular symptoms on the right.3 R. 223. A herniated
disc was suspected. R. 223. Dr. Fowler’s plan was to treat Summerville with physical therapy and
anti-inflammatory medications. R. 223.
On June 5, 2007, Dr. Fowler ordered an MRI due to lack of improvement. R. 222. On June
15, 2007, Dr. Fowler noted the MRI showed Summerville had significant arthritic changes,
foraminal narrowing, and nerve root impingement. R. 221. Dr. Fowler also noted that epidural
injections and physical therapy had not yielded significant improvement. R. 221. She was to be
referred for neurosurgical evaluation. 221.
On December 5, 2007, Summerville saw Dr. Bobby Hill complaining of back pain. R. 280.
Physical examination revealed back tenderness, which was increased with pressure applied to the
sacroiliac joint. R. 280. Straight leg raise testing was negative bilaterally. R. 280.
When Dr. Hill saw Summerville on March 4 and April 7, 2008, she continued to complain
of lower back pain. R. 279. On May 12, 2008, physical examination showed tenderness and pain
involving the right lower back, associated with positive right straight leg raising at approximately
15 to 20 degrees. R. 278. There was also insterscapular tenderness. R. 278.
Dr. Hill completed a Report of Disability for the Retirement Systems of Alabama on August
5, 2008. R. 271-72. He opined Summerville’s medical conditions prevented her from performing
her duties as a school bus driver. R. 271.
On September 3, 2008, Summerville saw Dr. Hill complaining of lower back pain with
bilateral radiation of pain into the posterior thighs, and into the knee in the left leg. R. 277. She was
The SLR test is also known as Lasègue’s sign: “In sciatica, flexion of the hip is painful when the knee is
extended, but painless when the knee is flexed. This distinguishes the disorder from disease of the hip joint.” Dorland’s
Illustrated Medical Dictionary 1525 (28th Edition).
also having hypogastric pain. R. 277. Physical examination showed tenderness to palpitation over
the hypogastrium, as well as in the lumbar spine. R. 277. Range of motion of the spine was limited
secondary to pain, and she complained of pain with raising of both lower legs at approximately 25
degrees. R. 277.
On October 9, 2008, Summerville began seeing Dr. Ricky Fennell as her primary care
physician. R. 325. She complained of left shoulder pain, and difficulty lifting her shoulder. R. 325.
She also complained of lower back pain, bilateral knee pain, and ankle pain. 325. Physical
examination revealed moderate tenderness over the midepigastrium, and moderate tenderness over
the left acromial bursa.4 R. 326.
When Summerville returned to Dr. Fennell on October 31, 2008, she reported her shoulder
discomfort and midepigastrium pain were better. R. 222. On December 4, 2008, Summerville
reported to Dr. Fennell that she was having fairly severe lower back pain, which had begun the
previous week. R. 360. She reported that her back pain had been going on for quite some time, and
that she had had epidural blocks two times without much improvement. R. 360. Dr. Fennell
indicated Summerville would be referred to SpiNet.5 R. 360.
On February 21, 2009, Summerville had a disability consultative examination by Dr.
Raveendran Meleth. R. 330-33. Dr. Meleth’s physical examination showed straight leg raising was
to 60 degrees while supine, and to 90 degrees while sitting. R. 333. Dr. Meleth noted the exam
revealed “no sciatica.” R. 333. Dr. Meleth’s general findings on examination were knee, low back,
The subacromial bursa is “between the acromial process and the capsule of the shoulder
joint.” The American Heritage Medical Dictionary, available at http:// medical-dictionary.thefree
There are no treatment notes from SpiNet in the record.
and hip spasms. R. 333. Dr. Meleth diagnosed: 1) low back pain due to moderate degenerative joint
disease, with “[n]o sciatica on this examination;” 2) history of neck pain due to cervical spondylosis;
3) moderately overweight; 4) hypertension; and 5) obstructive sleep apnea. R. 333.
On March 12, 2009, Summerville saw Dr. Fennell’s nurse practitioner complaining of
elevated blood pressure. R. 357. The treatment note states that “she also initially made the
appointment for her right leg and hip pain,” but that it was “much improved.” R. 357. Summerville
reported she “had been seen at Spain Rehab, where she was diagnosed with a bulging disk,” and that
they “recently referred her to a surgeon.”6 R. 357. She was taking Lortab and Flexeril for back pain.
R. 357. She reported that her son was deaf and she had to driver him “two hours every morning and
pick him up every afternoon to get to his school bus for his school classes.” R. 357. The physical
examination note states that “she denies any pain at this time.” R. 357-58.
On May 14, 2009, Summerville reported to Dr. Fennell that she felt stiff and sore in the
morning hours, and had soreness in both hips. R. 354. On July 15, 2009, she presented with a rash
on her back and stomach. R. 352.
On November 10, 2009, Summerville reported to Dr. Fennell that she was experiencing
upper respiratory symptoms manifested by nasal drainage and congestion. R. 349. Dr. Fennell noted
Summerville reported she was “getting along fairly good.” R. 349. She also reported that she was
seeing a chiropractor for decompression, which seemed to be helping. R. 349. Dr. Fennell
counseled Summerville that she needed to work hard getting her weight down, which he thought
“would help her back and hip discomfort as well.” R. 350.
There are no treatment notes from Spain Rehab nor from any referral visit to a surgeon in the record.
When Summerville saw Dr. Fennell’s nurse practitioner on February 22, 2010, she reported
intermittent headaches and well as sharp chest pains. R. 378. Summerville reported that because
she is retired, “she does not have the stress of work, but she does do a lot of driving with her son
going to school in Talladega.” R. 378. The nurse practitioner found no signs of cardiac cause for
her chest pain, and diagnosed acid reflux. R. 378.
In addition to Summerville’s back condition, she was diagnosed with obstructive sleep apnea
in June 2008. R. 244-46. Sleep clinic records from July and August 2008 show Summerville was
prescribed a CPAP machine. R. 265-69. On July 20, 2008, Dr. Narayan Krishnamurthy noted that
“[t]he majority of [Summerville’s] respiratory events improved on CPAP.” R. 268. However, on
August 11, 2008, she reported that she remained sleepy and “tends to doze off while driving.” R.
265. Her Epworth Sleepiness Scale (ESS) score was 17.7 R. 265.
On November 17, 2008, Dr. Krishnamurthy noted Summerville had been noncompliant with
the use of her CPAP for a few weeks. R. 372. Her ESS score was 15. R. 372. On August 31, 2009,
and March 1, 2010, Summerville reported that she was using her CPAP most nights, and her ESS
score was 12 on each visit. R. 370-71.
IV. ISSUES PRESENTED
Summerville raises the following issues on appeal: 1) whether the ALJ erred in relying on
the testimony of a medical expert; 2) whether the ALJ erred by failing to consider the plaintiff’s
impairments in combination; 3) whether the ALJ erred by failing to properly consider her obesity;
“The ESS is a self-administered questionnaire with 8 questions. It provides a measure of a person’s general
level of daytime sleepiness, or their average sleep propensity in daily life. . . . The normal range defined by the 2.5 and
97.5 percentiles is . . . zero to 10. ” http://epworthsleepinessscale.com/about-epworth-sleepiness/ (visited May 13, 2014).
and 4) whether the ALJ erred is assessing her RFC without a medical source opinion (MSO) from
an examining or reviewing physician.
Summerville argues the ALJ erred in giving dispositive weight to the opinion of Dr. Calvin
Johns, the medical expert who testified at her hearing. Pl.’s Br. 6. Dr. Johns testified that based on
his review of the record, Summerville’s impairments would cause “some difficulty in standing and
also some difficulty and restrictions in her lifting and carrying.” R. 55. He testified that the RFC
assessment contained in Exhibit 11F was consistent with the medical treatment records. R. 55.
Exhibit 11F contains an RFC assessment completed by a Single Decisionmaker (SDM) who is not
a physician. R. 338-45.
An ALJ may “ask for and consider opinions from medical experts on the nature and severity
of [a claimant’s] impairment(s).” See 20 C.F.R. §§ 404.1527(e)(2)(iii), 416.927(e)(2)(iii). The
opinions of a medical expert are evaluated under the same rules used to evaluate other medical
opinions. Id. Under those rules, to determine how much weight to give to each medical opinion the
ALJ must consider several factors, including (1) whether the doctor has examined the claimant; (2)
whether the doctor has a treating relationship with the claimant; (3) the extent to which the doctor
presents medical evidence and explanation supporting his opinion; (4) whether the doctor's opinion
is consistent with the record as a whole; and (5) whether the doctor is a specialist. 20 C.F.R. §§
In considering the weight to be given to Dr. Johns’ testimony, the ALJ noted that Dr. Johns
“had an opportunity to observe [Summerville’s] testimony, and to review the entire medical
evidence of record.” R. 27. He found that Dr. Johns’ opinion regarding [Summerville’s] functional
limitations was “consistent with the medical evidence of record and merits significant weight.” R.
27. Therefore, the ALJ considered Dr. Johns’ opinion in accordance with the regulations and gave
it significant weight because he found it was consistent with the medical evidence of record.
Moreover, contrary to Summerville’s assertion, the ALJ did not give dispositive weight to
Dr. Johns’ opinion as reflected in the RFC contained in Exhibit 11F. The ALJ’s RFC finding limited
Summerville more than the RFC assessment completed by the SDM. For example, the ALJ’s RFC
limited Summerville to frequently lifting or carrying items of negligible weight; occasionally
pushing and pulling with the upper and lower extremities; and occasionally reaching overhead. R.
16. The ALJ’s RFC assessment also provided for a sit/stand option, and included limitations in
Summerville’s ability to reach, handle, and finger that were more restrictive than the SDM’s RFC
In short, the ALJ assessed Summerville's RFC based upon a thorough review of all evidence
in the record, and did not unduly rely on evidence from one source. His RFC findings are in
accordance with the requirements set forth in the regulations, which provide that a claimant’s RFC
will be assessed “based on all of the relevant medical and other evidence,” 20 C.F.R. §§
404.1545(a)(3), 416.945(a)(3), and are supported by substantial evidence in the record, including
the opinion Dr. Johns.
Summerville also argues the ALJ improperly relied on Dr. Johns’ opinions because Dr. Johns
“made no distinction between the severe and non severe impairments as determined by the ALJ.”
Pl.’s Br. 6. Because the ALJ found in Summerville’s favor at step two, the specific severe
impairments listed in his step two finding are irrelevant. The Eleventh Circuit has held that
“[n]othing requires that the ALJ must identify, at step two, all of the impairments that should be
considered severe,” provided the ALJ considered the claimant’s impairments in combination.
Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010); see also Delia v. Comm’r
of Soc. Sec., 433 F. App’x 885, 887 (11th Cir. 2011) (noting that a failure to find that claimant’s
mental impairment was severe was harmless because the ALJ found other severe impairments and
considered the impairment in the rest of the decision). However, the ALJ was required to consider
all of Summerville’s medically determinable impairments, including those that are not severe, when
assessing her RFC. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).
A review of the ALJ’s decision shows that he properly considered Summerville’s alleged
impairments and provided a rationale for finding some of her impairments severe, while categorizing
other impairments as non-severe.
His decision also
states that he considered
Summerville’s nonsevere impairments in assessing her RFC. R. 16 (“I have considered the
claimant’s allegations regarding these [nonsevere] impairments in assessing her residual functional
capacity.”). Therefore, the ALJ did not err in his consideration of Summerville’s nonsevere
Summerville also asserts that neither the ALJ nor Dr. Johns considered her impairments in
combination. Pl.’s Br. 7. When a claimant has several impairments, the Commissioner “has a duty
to consider the impairments in combination and to determine whether the combined impairments
render the claimant disabled.” Jones v. Department of Health and Human Services, 941 F.2d 1529,
1533 (11th Cir. 1991).
Contrary to Plaintiff’s assertion, Dr. Johns specifically stated that he considered all of her
impairments. He testified that from the “totality of her problems here, there would be some
difficulty in standing and also some difficulty and restrictions in her lifting and carrying” that were
summed up in the RFC contained in Exhibit 11F. R. 55. Therefore, Plaintiff’s argument that Dr.
Johns did not consider her impairments in combination is without merit.
In addition, a review of the ALJ’s decision shows that he was aware of his obligation to
consider Summerville’s impairments in combination, and that he did so in his consideration of the
evidence. The ALJ recognized this obligation in his consideration of whether Summerville had a
‘severe’ impairment: “I must determine whether the claimant has a medically determinable
impairment that is “severe” or a combination of impairments that is “‘severe.’” R. 14. He also
recognized that Summerville’s combined impairments must be considered in determining whether
she met a Listing. R. 14. He found that “the claimant does not have an impairment or combination
of impairments that meets or medically equals one of the listed impairments.” R. 16. In Jones the
court held the ALJ’s finding that Jones “[did] not have ‘an impairment or combination of
impairments listed in, or medically equal to one [in the Listings]’” was sufficient evidence to show
the ALJ had considered the combined effect of Jones’ impairments. 941 F.2d at 1533 (emphasis in
original). The ALJ also recognized that he “must consider all of the claimant’s impairments,
including impairments that are ‘not severe’” in assessing her RFC. R. 14. He stated that in making
his RFC finding, he “considered all symptoms.” R. 18.
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 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 Summerville’s impairments and their combined impact on her ability to perform
work related activities. Therefore, he did not fail to properly consider Summerville’s impairments
in combination. See Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (finding 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).
Summerville argues the ALJ failed to adequately consider her obesity under Social Security
Ruling 02-1p. Pl.’s Br. 9. 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.). Rather, an ALJ must “do an individualized assessment of
the impact of obesity on an individual’s functioning.” Id. The Ruling also provides 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 Summerville cites to Social Security Ruling 02-1p in her brief, she has not pointed
to any record evidence showing her obesity prevents her from performing the work related activities
as set forth in the ALJ’s RFC assessment. The ALJ discussed Summerville’s obesity in his decision
and found that it was a severe impairment. R. 15. He also discussed the requirements of SSR 02-1p
and stated that he had “considered the impact of [Summerville’s] obesity in exacerbating her
problems and functional limitations caused by her other impairments.” R. 27. Therefore, the ALJ
properly applied SSR 02-1p in considering Summerville’s obesity.
Summerville next argues that “[i]n the absence of any medical source opinion (MSO) from
any examining or reviewing physician, the ALJ had no medical opinion on which to rely” in
assessing her RFC. Pl.’s Br. 9. However, neither the Commissioner’s regulations nor the law of this
circuit require that an RFC be based upon a medical source statement from a doctor.
The regulations provides that opinions on issues reserved to the Commissioner, such as a
claimant’s RFC, are not medical opinions:
Opinions on some issues, such as the examples that follow, are not medical opinions,
. . . but are, instead, opinions on issues reserved to the Commissioner because they
are administrative findings that are dispositive of a case; i.e., that would direct the
determination or decision of disability.
§ 404.1527(d). One example of an opinion that is specifically excluded from the definition of a
medical opinion is a claimant’s RFC.
Although we consider opinions from medical sources on issues such as . . . your
residual functional capacity . . . the final responsibility for deciding these issues is
reserved to the Commissioner.
§ 404.1527(d)(2). Therefore, under the regulations, a claimant’s RFC is not a medical opinion, and
a doctor’s opinion was not required for the ALJ to assess Summerville’s RFC.
The Eleventh Circuit has also recognized that determining a claimant’s residual functional
capacity and ability to work is a task for the ALJ, and not doctors. See Robinson v. Astrue, 365 F.
App’x 993, 999 (11th Cir. 2010) (unpublished) (“[T]he task of determining a claimant's residual
functional capacity and ability to work is within the province of the ALJ, not of doctors.”). It has
also found an ALJ’s RFC finding can be supported by substantial evidence even if there is no
medical source statement in the record. In Green v. Social Security Administration, the court found
the ALJ had properly refused to credit a Physical Capacities Evaluation (“PCE”) from the claimant’s
treating physician. 223 F. App’x 915, 922-23 (11th Cir. 2007) (unpublished). The court of appeals
rejected the claimant’s argument that without that PCE, there was nothing in the record upon which
the ALJ could base his RFC finding. Id. at 923. The court held that other evidence from the
claimant’s doctors (which did not contain a PCE or RFC assessment) was sufficient to support the
ALJ’s finding that the claimant could perform light work. Id. at 923-24; see also Langley v. Astrue,
777 F Supp. 2d. 1250, 1258 (N.D. Ala. 2011) (holding RFC is not a medical opinion and need not
be based upon a doctor’s RFC opinion).
In the present case, there was sufficient medical (and other) evidence in the record to allow
the ALJ to assess Summerville’s RFC. This evidence included a medical opinion from Dr. Johns
about Summerville’s RFC. As discussed above, Dr. Johns testified that based on his review of the
record, Summerville’s impairments would cause “some difficulty in standing and also some
difficulty and restrictions in her lifting and carrying,” and that the RFC assessment from the SDM
was consistent with the medical treatment records. R. 55. The record also contains extensive
treatment records and a consultative examination providing medical evidence about Summerville’s
impairments. This evidence was sufficient to allow the ALJ to assess Summerville’s RFC as
contemplated by the regulations.
Summerville also suggests the ALJ erred because “[i]n the absence of any medical source
opinion . . . the ALJ had . . . no RFC in the specific format required to address each area of
functioning under SSR 96-8p.” Pl.’s Br. 9. Social Security Ruling 96-8p explains that the ALJ must
initially assess a claimant’s physical and mental capacities on a function-by-function basis, rather
than in terms of exertional categories such as “sedentary” or “light.” SSR 96-8p, 1996 WL 374184,
*3 (S.S.A.). However, the Ruling does not require ALJ to base his RFC finding on a medical source
opinion, although such opinions will be considered if present. The Ruling reiterates that “RFC is
an administrative assessment,” which “is assessed by adjudicators at each level of the administrative
review process based on all of the relevant evidence in the case record, including information about
the individual's symptoms and any ‘medical source statements’–i.e., opinions about what the
individual can still do despite his or her impairment(s)–submitted by an individual's treating source
or other acceptable medical sources.” Id. at *2. Therefore, SSR 96-8p does not require the ALJ to
base his RFC finding on a medical source opinion addressing Summerville’s capacities on a
In addition, a review of the ALJ’s RFC finding shows that he addressed Summerville’s
physical capacities on a function-by-function basis in compliance with SSR 96-8p. The ALJ made
independent findings as to Summerville’s ability to lift; carry; sit; stand; walk; push; pull; balance;
stoop; kneel; crouch; crawl; climb ramps, stairs, ladders, ropes and scaffolds; reach overhead and
in other directions; handle; finger; tolerate exposure to extreme heat and cold; tolerate pulmonary
irritants; and be exposed to unprotected heights and dangerous machinery. R. 16. This satisfies the
requirements of SSR 96-8p, and no medical source opinion was required.
The court concludes the ALJ’s determination that Summerville 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 decision is due to be affirmed. An appropriate
order will be entered.
DONE and ORDERED this
day of July, 2014.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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