Jones v. Astrue

Filing 20

Order ent. that the decision of the Commissioner of Social Security, denying Plaintiff's claim for supplemental security income, be AFFIRMED.. Signed by Magistrate Judge Sonja F. Bivins on 3/27/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARILYN M. JONES,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

*
*
*
*
*
*
*
*
*
*

CIVIL ACTION 10-00479-B

ORDER
Plaintiff Marilyn M. Jones (“Plaintiff”) brings this action
seeking judicial review of a final decision of the Commissioner
of Social Security denying her claim for supplemental security
income under Title XVI of the Social Security Act, 42 U.S.C. '
1381 et seq.

On June 22, 2011, the parties consented to have

the undersigned conduct any and all proceedings in this case.
(Doc. 17). Thus, this case was referred to the undersigned to
conduct all proceedings through entry of judgment in accordance
with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Doc. 19).
argument

was

waived.

Upon

careful

consideration

of

Oral
the

administrative record and the memoranda of the parties, it is
hereby

ORDERED

AFFIRMED.

that

the

decision

of

the

Commissioner

be

I.

Procedural History
Plaintiff

protectively

filed

an

application

for

supplemental security income on February 7, 2007. (Tr. 79-81).
Plaintiff alleges that she has been disabled since June 1, 2005,
due to diabetes and hypertension. (Tr. 79, 91).

Her application

was denied at the initial stage (Tr. 48-52), and she filed a
timely Request for Hearing before an Administrative Law Judge
(“ALJ”). (Tr. 53).

On October 24, 2008, Administrative Law

Judge Alan E. Michel held an administrative hearing, which was
attended

by

November

13,

finding

that

Plaintiff
2008,

and

the

Plaintiff

her

ALJ
is

attorney.

issued

not

an

(Tr.

22-45).

unfavorable

disabled.

(Id.

at

On

decision
15-21).

Plaintiff’s request for review was denied by the Appeals Council
(“AC”) on August 18, 2010.

(Id. at 1-4, 9-11).

The parties agree that this case is now ripe for judicial
review and is properly before this Court pursuant to 42 U.S.C. ''
405(g) and 1383(c)(3).
II.

Issues on Appeal
A.

Whether the ALJ erred by failing to seek the testimony
of a vocational expert in light of his finding that
Plaintiff can only perform a restricted range of
sedentary work.

B.

Whether the ALJ erred by failing to consider
Plaintiff’s obesity as a severe impairment.

2

C.

Whether the ALJ erred by failing to order a
consultative neurological examination considering
Plaintiff’s diagnosis of diabetic neuropathy.

III. Factual Background
Plaintiff was born on July 15, 1961, and was 47 years old
at the time of the administrative hearing.

(Tr. 30, 47 86).

She has a 12th grade education and completed 2 years of college.
(Id. at 30). Plaintiff has worked in the past as a nurse’s
assistant

and

a

cafeteria

worker.

(Id.

at

92.

100,

138).

Plaintiff reported that she stopped working due to lower back
pain.

Plaintiff

also

reported

that

her

feet

swells

if

she

stands or walks too long, that her vision gets blurry, and that
she has muscle spasms in her chest due to acid reflux.

(Id. at

37-39, 91).
Plaintiff

testified

that

she

is

able

to

care

for

her

personal needs; however, it takes her a long time to complete
some

activities

cooking, etc.

such

as

combing

her

hair,

getting

dressed,

(Id. at 34, 114). According to Plaintiff, she can

lift 20 pounds and is able to perform some housework, but she
has to stop frequently due to fatigue. (Id. at 42). Plaintiff
also indicated that her daughter assists her with cooking and
the laundry. (Id. at 42). At the time Plaintiff completed her
application, she indicated that she was caring for her mother,
including bathing her and preparing her food.

Plaintiff also

indicated that while assisting her mother, her legs and feet
3

would hurt. Plaintiff testified that she has never driven an
automobile and that she utilizes public transportation. (Id. at
110-114).
Plaintiff indicated that she takes 12 to 14 medicines1,
however,

she

is

not

able

to

afford

these

medications

on

a

consistent basis. According to Plaintiff, she experiences side
effects from her medications that make her drowsy, sleepy, and
woozy, and causes her eyes to blur. ((Id. at 33-34, 42).
IV.

Analysis
A.

Standard Of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).2

Martin v. Sullivan, 894 F.2d

A court

may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that

1

Plaintiff’s medications referenced in the record include
Actos,
Avalide,
Bayer
Aspirin,
Furosemide,
Gabapentin,
Isosorbide
DN,
Klor-Con,
Lantus
Insulin,
Metformin,
Metoclopramid,
Nitroglycerin,
Quinapril,
Ranitidine,
Simvastatin, Zantac, and Prevacid. (Id. at 95-96, 115, 137,
140).
2

This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
4

of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support a conclusion[]”).

In determining whether substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S.

Dist. LEXIS 10163

(S.D. Ala. 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

416.912.
substantial

prove

his

disability.

20

C.F.R.

''

404.1512,

Disability is defined as the Ainability to do any
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.@
U.S.C.

''

423(d)(1)(A),

404.1505(a),

416.905(a).

The

42

Social

Security regulations provide a five-step sequential evaluation
5

process for determining if a claimant has proven her disability.
20 C.F.R. '' 404.1520, 416.920.3
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity and that she has
the

severe

impairments

of

diabetes,

blurred

vision,

hypertension, lower back pain, and acid reflux. (Tr. 17-18). The
ALJ found that Plaintiff does not have an impairment that meets

3

The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
impairment or combination of impairments. If, at the third step,
the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; (4) the claimant=s
age, education and work history. Id. at 1005. Once a claimant
meets this burden, it becomes the Commissioner=s burden to prove
at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
significant numbers in the national economy, given the claimant=s
residual functional capacity, age, education, and work history.
Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
If the
Commissioner can demonstrate that there are such jobs the
claimant can perform, the claimant must prove inability to
perform those jobs in order to be found disabled.
Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

6

or medically equals any of the listings

contained in 20 C.F.R.

Pt. 404, Subpt. P, App. 1, Regulations No. 4.
The

ALJ

concluded

that

Plaintiff

(Id. at 18).

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a restricted
range

of

sedentary

work,

that

Plaintiff

can

stand/

walk

occasionally and lift/ carry 10 pounds occasionally. (Id. at
18).

The

ALJ

next

determined

that

Plaintiff’s

medically

determinable impairments could reasonably be expected to produce
the

alleged

intensity,

symptoms

but

persistence

that

and

her

statements

limiting

effects

concerning
of

the

the

alleged

symptoms are not credible to the extent they are inconsistent
with the RFC assessment.
Plaintiff

has

no

past

(Id. at 19). The ALJ concluded that
relevant

work

and

that,

considering

Plaintiff’s RFC and vocational factors, such as age, education
and work experience, Plaintiff is able to perform other jobs
existing in significant numbers in the national economy. (Id. at
20-21). Thus, the ALJ concluded that Plaintiff is not disabled.
(Id. at 21).
The relevant evidence of record reflects that Plaintiff was
treated

by

Ollie

Powe,

III,

D.O.

(hereinafter

“Dr.

Powe”),

optometrist, on April 24, 2006. (Id. at 147, 259-61, 334). In a
questionnaire

dated

September

19,

7

2008,

Dr.

Powe

found

that

Plaintiff

has

myopia4

and

presbyopia5.

(Id.

at

334).

On

examination, he noted that Plaintiff’s visual acuity was 20/20
bilaterally when best corrected. (Id. at 260). In October 2008,
Plaintiff reported that she was using two eyes drops prescribed
by Dr. Powe. (Id. at 142).
Plaintiff was seen by Jean A. Sansaricq, M.D. (hereinafter
“Dr. Sansaricq”), from at least March 9, 2004 to May 19, 2006,
with complaints regarding abdominal pain and hot flashes. (Tr.
148-157). The records reflect that she underwent a hysterectomy
on March 9, 2004. (Id. at 150-53).
Plaintiff was treated in the emergency department at Mobile
Infirmary on May 27, 2006.

She reported abdominal pain, nausea,

and vomiting. The notes reflect that an x-ray of her abdomen was
normal, and no evidence of bowel obstruction was seen. (Id. at
165).

The

treating

hypertension,

and

physician
a

family

noted
history

a

history
of

of

diabetes,

cardiac

problems.

Plaintiff was discharged in stable condition and given Demerol
and Phenergan. (Id. at 158-165).

4

Myopia is more commonly called nearsightedness.
www.ncbi.nlm.nih.gov (last visited March 27, 2012).
5

See

Presbyopia is a condition in which the lens of the eye
loses its ability to focus, making it difficult to see objects
up close. See www.ncbi.nlm.nih.gov (last visited March 27,
2012).

8

Plaintiff was treated as an inpatient at Mobile Infirmary
from July 3 to July 6, 2006.

She reported chest pain, numbness

in her arm, nausea, and dizziness. (Id. at 166-81). The record
reflects that Plaintiff’s primary care physician sent her to the
emergency department due to low blood pressure, and she was
subsequently

admitted.

A

history

of

hypertension,

gastroesophageal reflux disease (GERD), and diabetes was noted,
as was a family history of coronary artery disease. Cardiac
enzymes

were

normal.

An

negative,
ultrasound

and
on

a

left

heart

Plaintiff’s

catherization

abdomen

revealed

was
the

gallbladder and common hepatic duct were normal, the kidneys
were normal in size and shape, and the spleen, abdominal aorta,
and IVA were unremarkable. An x-ray of the heart found no change
from a prior one, that the heart and mediastinum were normal,
and that the lungs were clear of infiltrates, effusions, and
masses. (Id. at 179-180). Plaintiff was discharged in stable
condition

and

directed

to

follow

up

with

her

primary

care

doctor. (Id. at 169).
Plaintiff

was

also

treated

at

Franklin

Primary

Health

Center/ Franklin Medical Center from at least April 21, 1999
through at least March 18, 2009 for a number of aliments.6 (Id.

6

In 2005, Plaintiff presented for treatment on February 16
and 18, April 27, and August 9. (Tr. 201-210). In 2006,
Plaintiff sought treatment on April 14 and 25, May 15, June 12,
(Continued)
9

at 182-258, 319-330). On February 18, 2005, Plaintiff reported
sharp pains in her lower back, the cause of which she attributed
to lifting her mother. Plaintiff also rated her pain as a 10 on
a scale of 1 to 10. She further reported acid reflux at night
and nausea. Plaintiff was directed to take Prevacid for the acid
reflux and prescribed hydrocodone for the lower back pain. (Id.
at 205-07). On September 22, 2006, Plaintiff reported again that
her lower back pain rated a 10 on a scale of 1 to 10. She was
prescribed
records

hydrocodone

also

reflect

for

the

that

pain.

(Id.

Plaintiff’s

at

186-7).

diabetes

The

fluctuated

between controlled and uncontrolled during the period she was
treated at Franklin. See, e.g., (Id. at 184, 190, 196, 320,
358). Additionally, during her treatment at Franklin, Plaintiff
also

reported

shoulder

pain,

nausea,

hand

and

foot

cramps,

dyspepsia, dizziness, and edema in her lower extremities. (Id.
at 182-258, 319, 330). Neuropathy was also noted and Plaintiff
she was advised to lose weight and exercise. (Id. at 189-90,
195-6, 333, 353-4).

July 10, August 7, September 22, and October 20. (Id. at 185200). In 2007, Plaintiff sought treatment on January 24 and
August 30. (Id. at 183-84, 327). In 2008, Plaintiff was seen on
at least February 11, March 24, June 3, June 17, September 9,
and October 7. (Id. at 332-333, 353-356, 265-66). In 2009,
Plaintiff presented on January 22, February 3, March 12, March
18, May 1, May 29, August 10, and October 1. (Id. at 335-339,
351-52, 355-364).

10

On April 19, 2007, L.D. McLaughlin, M.D. (hereinafter “Dr.
McLaughlin”), interviewed and examined Plaintiff at the Agency’s
request.

(Id.

history

of

at

262-267).

hypertension,

Dr.

McLaughlin

diabetes,

and

noted

Plaintiff’s

hyperlipidemia

(high

blood cholesterol and triglycerides). Plaintiff reported that
she had poorly controlled diabetes, that she worked as a nurse’s
aid until 2004 and has not worked since, that she was able to
walk 2 blocks, and that she had some generalized soreness in her
abdomen, neck, and back. On physical exam, Dr. McLaughlin noted
no acute distress and observed that Plaintiff was only able to
flex her back over approximately 20 degrees from vertical due to
pain up and down the paravertebral muscles. Dr. McLaughlin also
observed that Plaintiff could rotate her back only 5 degrees
each way. Dr. McLaughlin further observed that Plaintiff’s bowel
sounds appeared within normal limits and that she had moderate
tenderness over the epigastric area and left upper quadrant area
of

her

abdomen

symptoms.

on

palpation.

Plaintiff’s

upper

Plaintiff

denied

any

extremities

showed

good

GI

or

GU

range

of

motion. No major pain or tenderness below the shoulders was
noted;

however,

there

was

some

tenderness

in

her

lower

extremities. Dr. McLaughlin opined Plaintiff’s lower extremities
otherwise appeared satisfactory, and no pedal edema was noted.
Plaintiff’s visual acuity in the right eye was 20/20, 20/30 in
the left eye, and 20/30 bilaterally. Dr. McLaughlin reported he
11

did “not see any definitive diabetic complications” but did note
that

Plaintiff

prescribed

for

was

taking

diabetic

Neurontin7,

neuropathy.

which
Dr.

could

have

McLaughlin

been

observed

that Plaintiff’s gait was normal, and that she was able to stand
on heels and toes, walk, squat, and rise without difficulty or
assistance. Dr. McLaughlin opined that Plaintiff could do some
work related activities which do not involve prolonged walking,
lifting or carrying objects. He also opined that Plaintiff would
have some difficulty with prolonged standing. (Id. at 265).
Agency

medical

consultant

Kimberly

White

completed

a

physical RFC assessment on April 27, 2007. (Id. at 269-276). She
assessed Plaintiff with diabetes, hypertension, and generalized
myalgia. Ms. White opined that Plaintiff could occasionally lift
20 pounds, frequently lift 10 pounds, stand and/or walk about 6
hours in an 8-hour workday, sit about 6 hours in an 8-hour
workday, and push and/or pull for an unlimited amount of time.
She further reported that Plaintiff could occasionally climb,
stoop,

kneel,

crouch,

and

crawl,

but

could

never

balance.

Additionally, she opined that Plaintiff had no limitations in
manipulative, visual, or communicative ranges, but should avoid

7

Neurontin
is
used
to
http://www.drugs.com/neurontin.html
2012).

12

treat
(last

nerve
visited

pain.
March

See
27,

concentrated

exposure

to

extreme

cold,

extreme

heat,

and

humidity. (Id. at 269-76).
The

record

includes

treatment

notes

from

USA

Medical

Center, dated December 1, 2003, April 4, 2005, and May 11, 2007.
(Tr. 277-316). On December 1, 2003, Plaintiff presented with
flu-like symptoms. She was diagnosed with bibasilar atelectasis8
and was prescribed Phenergen and azithromycin. (Id. at 307-16).
Plaintiff was treated on April 4, 2005, with complaints of
temporal throbbing pain which Plaintiff rated as 8 on a pain
scale

of

relieved

1

to

with

10,
rest.

light-headedness,
Trace

pretibial

and

nausea,

edema,

which

slight

were

abdominal

distention, and elevated blood pressure were noted. An x-ray
taken that date showed the lungs were clear, the soft tissues
and

bony

structures

were

normal,

and

the

heart

size

and

configuration, mediastinum, and pulmonary vessels were within
normal limits. Plaintiff was directed to follow up with Dr.
Uzoije. (Id. at 292-304, 306).
On the May 11, 2007,

Plaintiff reported abdominal and

pelvic pain lasting 2 weeks. A CT scan of her pelvis revealed
that

her

lung

bases

were

clear,

8

and

the

liver,

spleen,

Bibasilar atelectasis is a condition where air pockets
contained in the lungs collapse, interrupting breathing. See
www.freemd.com/bibasilar-atelectasis/overview.htm (last visited
March 27, 2012).

13

gallbladder, pancreas, and bilateral adrenal glands were within
normal limits. Plaintiff’s right kidney was normal, but a small,
subcentimeter cyst in the mid pole of left kidney was observed.
The

small

bowel

and

colon

were

unremarkable,

but

multiple

phleboliths in the pelvis were seen. Lumbar degenerative joint
and disc disease were noted, and Plaintiff was diagnosed with
pelvic inflammatory disease. (Id. at 277-91, 305).
The

record

also

contains

treatment

notes

from

gastroenterologist Raymond Bell, M.D. (hereinafter “Dr. Bell”),
from January 12, 2002 to March 10, 2009. (Id. at 340-50). On
March

17,

2005,

Dr.

(esophagogastroduodenoscopy)

Bell
with

performed

dilation

due

an

to

EGD

Plaintiff’s

complaints of dysphagia and mid epigastric discomfort and opined
that Plaintiff has probable esophagitis with esophageal spasm.
No evidence of Barrett’s Esophagus9 was observed, however mild
gastritis and duodenitis were noted. (Id. at 344). Plaintiff was
most

recently

diagnostic

seen

by

impression

Dr.
was

Bell

on

gastritis

March
and

10,

2009,

esophagitis.

and

his

(Id.

at

341).

9

Barrett’s esophagus is a disorder in which
the esophagus (the tube that carries food from the
stomach)
is
damaged
by
stomach
http://www.ncbi.nlm.nih.gov (last visited March 27,

14

the lining of
throat to the
acid.
See
2012).

1.

Whether the ALJ erred by failing to
seek the testimony of a vocational
expert in light of his finding that
Plaintiff can only perform a restricted
range of sedentary work.

Plaintiff argues that the ALJ erred in failing to obtain
vocational expert (hereinafter “VE”) testimony considering his
finding that Plaintiff retained the RFC to perform a restricted
range

of

sedentary

work10.

According

to

Plaintiff,

the

ALJ

improperly relied on the Medical-Vocational Guidelines, or the
Grids, in making his determination and should have called on a
VE to determine how and to what extent Plaintiff’s occupational
base was eroded by her limitations.
In opposition, Defendant argues that the ALJ considered the
entire

record

additional
occupational

and

properly

limitations
base

of

had

determined

little

unskilled

to

that
no

sedentary

Plaintiff’s

effect

on

the

work.

Further,

Defendant notes that the isolated impairments do not preclude
use of the Grids. Additionally, Defendant contends that assuming
arguendo that the ALJ should have elicited testimony from a VE,

10

Sedentary work involves lifting no more than 10 pounds at
a time, with occasional lifting or carrying of articles such as
docket files, ledgers or small tools, and occasional walking or
standing. 20 C.F.R. § 416.967(a). Although a sedentary job is
defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job
duties. SSR 96-9p, 1996 SSR LEXIS 6.

15

any

error

was

harmless

as

Plaintiff

has

not

shown

she

was

prejudiced by the ALJ’s analysis.
At step five of the sequential analysis, the burden of
proof shifts to the Commissioner to establish that Plaintiff
could perform other work that exists in the national economy.
Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004);
Foote

v.

Chater,

67

F.3d

1553,

1559

(11th

Cir.

1995).

In

determining whether the Commissioner has met this burden, the
ALJ

must

develop

opportunities

a

full

available

to

record
a

regarding

plaintiff

and

the

vocational

consider

the

plaintiff’s RFC, age, education, and work experience. See Allen
v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989). RFC is what
the claimant is still able to do despite her impairments. 20
C.F.R. § 416.945(a)(1).
To do this, the ALJ can either exclusively rely on the
grids

when

each

variable

on

the

appropriate

grid

accurately

describes the plaintiff’s situation or call a VE. See Phillips,
357 F.3d at 1329-40. However, exclusive reliance on the grids is
only appropriate when the plaintiff is able to perform a full
range of work at a given functional level or when a plaintiff
has nonexertional impairments that do not significantly limit
basic work skills. Phillips, 357 F.3d at 1243; Jones v. Apfel,
190 F.3d 1224, 1229 (11th Cir. 1999); Wolfe v. Chater, 86 F.3d
1072, 1077 (11th Cir. 1996); Walker v. Bowen, 826 F.2d 996, 1003
16

(11th Cir. 1987) (“The grids may be used only when each variable
on

the

appropriate

grid

accurately

describes

the

claimant’s

situation.”). Stated differently, an ALJ can utilize the grids
to

meet

this

exertional

burden

if

impairments11

a

claimant

with

no

primarily

significant

suffers

from

non-exertional

limitations. See Allen, 880 F.2d at 1201-02.
The Eleventh Circuit has defined the “full range of work”
as “being able to do ‘unlimited’ types of work at the given
exertional level.” Phillips, 357 F.3d at 1242. Where the ALJ
determines that the claimant cannot perform the full range or
unlimited types of work at the given functional level, the ALJ
must consult a VE to ascertain whether there are sufficient jobs
in

the

national

economy

at

that

functional

level

given

the

claimant’s exertional limitations. Phillips, 357 F.3d at 1242.
In this case, the record reflects that while the ALJ stated
that Plaintiff has the RFC to perform a restricted range of
11

An “exertional impairment” for social security disability
purposes is an impairment which places limits on an individual's
ability to meet job strength requirements. Foote, 67 F.3d at
1559; Phillips, 357 F.3d at 1241 n.11 (noting the seven strength
demands of the job: sitting, standing, walking, lifting,
carrying, pushing, and pulling). Nonexertional limitations
affect an individual’s ability to meet other work-related
demands, and include pain, side effects from medications, colon
discomfort, mental impairments, tolerating environmental working
conditions, hearing or speaking, and the inability to walk
without an assistive device. See, e.g., Phillips, 357 F.3d at
1241; Watson v. Astrue, 376 Fed. Appx. 953, 957 n.7 (11th Cir.
2010).

17

sedentary

work,

he

went

on

to

clarify

that

Plaintiff

can

stand/walk occasionally, and that she can lift/carry ten pounds
occasionally.

Under the regulations, sedentary work involves

lifting no more than 10 pounds occasionally, and occasionally
lifting

or

articles

Additionally,

tools.

carrying

the

like

docket

regulations

files,

provide

ledgers

that

being

and
on

one’s feet is required “occasionally” at the sedentary level.
See 20 C.F.R. § 416.967(a) (“Sedentary work involves lifting no
more than 10 pounds at a time.... Jobs are sedentary if walking
and standing are required occasionally.”).

According to the

regulations, “‘[o]ccasionally’” means occurring from very little
up

to

one-third

required

of

the

“occasionally”

time.
at

Since

the

being

sedentary

on

one’s

level

of

feet

is

exertion,

periods of standing or walking should generally total no more
than about 2 hours of an 8-hour workday, and sitting should
generally total approximately 6 hours of an 8-hour workday.” SSR
83-10, 1983 SSR LEXIS 30.
The undersigned finds that while the ALJ’s decision is not
the model of clarity, the ALJ specifically found that Plaintiff
can engage in occasional lifting/carrying of ten pounds, and
that she is capable of occasionally walking/standing.

In so

finding, the ALJ implicitly found that Plaintiff can engage in a
full

range

of

sedentary

work

because

18

Plaintiff’s

functional

strengths are consistent with a full range of sedentary work12.
This is particularly true where Plaintiff has not argued that
the ALJ erred in finding that she can lift/carry ten pounds
occasionally and that she can walk/stand occasionally, and has
not

pointed

restrict

the

to

any

range

non-exertional

of

sedentary

limitations

work

that

she

that
is

would

able

to

perform. Indeed, as noted supra, upon examining Plaintiff in
April

2007,

L.D.

McLaughlin,

M.D.

opined

that

Plaintiff

can

engage in work activities that do not involve prolonged walking,
standing,

lifting

physical

functional

or

carrying

limitations,

objects.
as

(Id.

found

by

at

265).

the

The

ALJ,

are

consistent with Dr. McLaughlin’s opinions, and do not preclude
the full range of sedentary work. In view of the substantial
record

evidence

demonstrating

that

Plaintiff

can

perform

the

full range of sedentary work, the ALJ’s statement that Plaintiff
has the RFC to perform a restricted range of sedentary work
constitutes harmless error.

Accordingly, the Court concludes

12

Plaintiff reliance on Gibson v. Heckler, 762 F.2d 1516
(11th Cir. 1985)(per curiam), is misplaced.
In Gibson, the
Court held that the Grids should not have been applied where the
ALJ found claimant could perform sedentary or light work with a
sit/stand limitation because the RFC variable of the Grids does
not take into account a sit/stand limitation. However, a
sit/stand option is not applicable to this case, thus making it
easily distinguishable from Gibson.
Plus, the record does not
contain any evidence that suggests that Plaintiff has any
limitations that would preclude her from performing a full range
of sedentary work.

19

that the ALJ did not err in applying the Grids, instead of using
a

VE,

as

Plaintiff

does

not

have

any

limitations

that

significantly diminish her ability to perform a wide range of
sedentary work.
2.

In

her

Whether the ALJ erred by failing
consider Plaintiff’s obesity as a
severe impairment.
brief,

Plaintiff

asserts

that

the

to

ALJ

erred

in

failing to find Plaintiff’s obesity is a severe impairment and
in failing to discuss Plaintiff’s obesity under SSR 02-1p13. The

13

SSR 02-1p, 2002 SSR Lexis 1 reads in pertinent part:
[W]e will not make assumptions about
the
severity
or
functional
effects
of
obesity combined with other impairments.
....
Obesity in combination with another
impairment may or may not increase the
severity or functional limitations of the
other impairment.... An assessment should
also be made of the effect obesity has upon
the individual’s ability to perform routine
movement and necessary physical activity
within the work environment.... As explained
in SSR 96-8p, 1996 SSR LEXIS 5 ... our RFC
assessments must consider an individual's
maximum remaining ability to do sustained
work activities in an ordinary work setting
on a regular and continuing basis....
....
The combined effects of obesity with
other impairments may be greater than might
be expected without obesity....

(Continued)
20

Commissioner responds that the ALJ was not required to develop
Plaintiff’s obesity claim because she never alleged obesity as a
disabling impairment in her application or at the administrative
hearing,

nor

did

she

present

any

evidence

of

disabling

limitations cause by her weight.
A review of the record shows that Plaintiff’s weight was
recorded

between

approximately

165-208

pounds

during

the

relevant period. (Tr. 183-205, 319-332). She testified at the
administrative hearing that her current weight was 195 pounds
and that she stands 5’2” tall (Id. at 32).
It is well settled that a plaintiff bears the ultimate
burden of establishing disability. Russell v. Astrue, 331 Fed.
Appx. 678, 679 (11th Cir. 2009); Carnes v. Sullivan, 936 F.2d
1215, 1218 (11th Cir. 1991); Brady v. Heckler, 724 F.2d 914, 918

....
As with any other impairment, we will
explain how we reached our conclusions on
whether obesity caused any physical or
mental limitations.
....
When we identify obesity as a medically
determinable
impairment
...,
we
will
consider
any
functional
limitations
resulting from the obesity in the RFC
assessment, in addition to any limitations
resulting from any other physical or mental
impairments we identify.

21

(11th

Cir.

1984).

In

addition,

the

plaintiff

must

provide

corroborative medical or other evidence of his impairments in
the record. Carnes, 936 F.2d at 1218; Bell v. Bowen, 796 F.2d
1350, 1353 (11th Cir. 1986); 42 U.S.C. § 423(d)(5); 20 C.F.R. §§
404.704, 404.1512(c). While it is true that the ALJ did not
discuss Plaintiff’s obesity in his decision, the record reveals
that

Plaintiff

did

not

allege

obesity

as

a

grounds

for

disability, either in the initial application for SSI benefits
(Tr. 79-81) or during the hearing before the ALJ (Id. at 22-45).
Further,
evidence

Plaintiff

in

the

alleges

record

in

no

support

facts
of

and

her

points

position

to

that

no
her

obesity impinges on her ability to work. In the present case,
Plaintiff’s
indicate

treatment

that

notes

Plaintiff

and

suffers

medical
any

diagnoses

limitations

due

do

not

to

her

obesity or that her obesity exacerbates her other impairments.
In

fact,

the

administrative

record

is

largely

devoid

of

references to Plaintiff’s obesity and the notations which do
appear reference Plaintiff’s obesity in passing.
(id.

at

213,

234,

350).

Additionally,

none

of

See, e.g.,
Plaintiff’s

physicians identified any functional limitations resulting from
her obesity.14

14

At most, healthcare providers at Franklin Primary Health
directed Plaintiff to diet and exercise. (Tr. 355-8). The
Eleventh Circuit Court of Appeals held that “[a] physician’s
(Continued)
22

In this case, Plaintiff did not allege or testify that her
obesity was disabling or caused her any limitations, and nothing
in the record suggests such a conclusion. As indicated above,
the

burden

is

Commissioner’s

on

the

decision

plaintiff
is

not

to

demonstrate

supported

by

that

the

substantial

evidence, and the argument of counsel is insufficient to meet
this burden, as is Plaintiff’s administrative hearing testimony.
Given the lack of record evidence, there was nothing before the
ALJ

to

demonstrate

or

even

suggest

that

Plaintiff’s

obesity

significantly limits her ability to work, either medially or
mentally, as required under SSR 02-01p, 2002 SSR LEXIS 1. See
Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (finding
that the ALJ did not err in failing to find Plaintiff’s obesity
as a severe impairment where “[t]he medical record is silent as
to whether and how claimant’s obesity might have exacerbated her
condition. Moreover, claimant did not present any testimony or
other evidence at her hearing that her obesity impaired her
ability to work”); Fincher v. Astrue, 2010 U.S. Dist. LEXIS

recommendation to lose weight does not necessarily constitute a
prescribed course of treatment, nor does a claimant’s failure to
accomplish the recommended change constitute a refusal to
undertake such treatment.” McCall v. Bowen, 846 F.2d 1317, 1319
(11th Cir. 1988) (citing Johnson v. Secretary of Health and
Human Services, 794 F.2d 1106, 1113 (6th Cir. 1986) (noting that
“it is impermissible . . . to presume that obesity can be
remedied.”)).

23

17818,

*10-11

obesity’s

(S.D.

effect

Ga.

on

Mar.

1,

claimant’s

2010)(requiring

ability

to

work

evidence
in

order

of
to

support reversal).
The ALJ considered the limitations mentioned in Plaintiff’s
medical

records

consideration

in

of

reaching

the

record

his
in

decision.
this

case,

Accordingly,
the

upon

undersigned

concludes that the ALJ did not err in failing to consider the
effect

of

Plaintiff’s

obesity

on

the

severity

of

her

other

impairments or on her RFC. Cf. Street v. Barnhart, 133 Fed.
Appx. 621, 627-28 (11th Cir. 2005) (noting that an ALJ need not
consider impairments when the claimant fails to put the ALJ on
notice of their existence and that an ALJ is under no obligation
to

investigate

a

claim

not

presented

at

the

time

of

the

application for benefits and not offered at the hearing as a
basis for disability); Warren v. Astrue, 2010 U.S. Dist. LEXIS
85836, *24 (N.D. Ga. July 14, 2010) (same).
3.

Whether the ALJ erred by failing to
order
a
consultative
neurological
examination
considering
Plaintiff’s
diagnosis of diabetic neuropathy.

Plaintiff next argues that the ALJ erred by failing to
order a consultative neurological exam to determine the severity
of her diabetic neuropathy. Specifically, Plaintiff maintains
this request was made in writing (see Tr. 132), and contends
that

it

was

error

not

to

grant

24

this

request

to

aid

in

determining Plaintiff’s RFC. The Commissioner responds that the
ALJ

considered

permitted

to

the
issue

medical
a

opinions

decision

in

without

the

record

obtaining

and

is

additional

evidence so long as other record evidence provided a sufficient
basis for the decision or where additional testing results would
have been of limited relevance to the inquiry during the period
at issue.
“Even though Social Security courts are inquisitorial, not
adversarial, in nature, claimants must establish that they are
eligible for benefits. The administrative law judge has a duty
to develop the record where appropriate but is not required to
order a consultative examination as long as the record contains
sufficient evidence for the administrative law judge to make an
informed decision.” Ingram v. Comm. of Soc. Sec. Admin., 496
F.3d 1253, 1269 (11th Cir. 2007); see also Good v. Astrue, 240
Fed. App’x 399, 404 (11th Cir. 2007) (rejecting claim that ALJ
reversibly erred in failing to order a consultative examination
because no treating or examining physician had recommended such
an examination and the record contained sufficient evidence to
permit the ALJ’s RFC determination); 20 C.F.R. § 416.919a(b)
(detailing situations requiring a consultative examination for
SSI

claimants).

Accordingly,

the

ALJ

must

probe

into

all

relevant facts, even where a claimant is represented by counsel.
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). The ALJ
25

should have the claimant attend a consultative examination or
order tests when the necessary information cannot be gleaned
from the records but should only purchase tests or examinations
that are “need[ed] to make a determination” about a plaintiff’s
disability. 20 C.F.R. §§ 416.912(f), 416.917, 416.919(f).
Additionally, there is no requirement that whenever an ALJ
is made aware of a plaintiff’s condition that a consultative
examination is automatically required. Rather, it is only where
a consultative examination is necessary for the ALJ to make a
decision due to some conflict, ambiguity, or other insufficiency
in the medical evidence that the regulations require an ALJ to
order a consultative examination. 20 C.F.R. §§ 404.1519(a)(2)
(“When we purchase a consultative examination, we will use the
report from the consultative examination to try to resolve a
conflict

or

ambiguity

if

one

exists.

We

will

also

use

a

consultative examination to secure needed medical evidence the
file

does

tests,

a

not

contain

diagnosis

or

such

as

clinical

prognosis

findings,

necessary

for

laboratory

decision.”),

404.1519a(b) (“A consultative examination may be purchased when
the evidence as a whole, both medical and nonmedical, is not
sufficient to support a decision on your claim.”); see also
Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir. 1997) (“The
Secretary

has

broad

latitude

examinations.”).
26

in

ordering

consultative

In the case at bar, the Court concludes that sufficient
evidence

was

disability

present

in

the

determination

record

without

a

for

the

ALJ

neurological

to

make

a

examination

regarding Plaintiff’s diabetic neuropathy. The record contains
ample evidence of Plaintiff’s neuropathy and was therefore not
ambiguous. At the administrative hearing, Plaintiff testified
that she often feels pain in her feet and hands that feels like
“somebody’s

sticking

[her]

with

needles.”

(Tr.

38).

Additionally, neuropathy, numbness, or tingling were noted in
Plaintiff’s

hands

and

lower

extremities

by

Franklin

Primary

Health Center on multiple occasions, and she was prescribed 300
mg of Neurontin. (Tr. 189-90, 195-96, 332-33, 353-54). Also, at
the request of the Agency, physician Dr. McLaughlin conducted an
examination of Plaintiff, and noted her history of hypertension,
diabetes and hyperlipidemia.
Plaintiff

was

neuropathy.
Plaintiff’s

taking

(Tr.

Neurontin,

265).

Moreover,

impairments

carrying/lifting

of

Dr. McLaughlin also observed

ten

which
Dr.

limited
pounds,

and

could

be

McLaughlin
her

to

occasional

for

the

necessary

information

to

determine

diabetic

opined

that

occasional
walking

standing. In light of this substantial record evidence,
had

that

and

the ALJ

Plaintiff’s

impairments, her RFC, and her ability to work, and he did not
err by not ordering a consultative neurological examination.

27

Moreover, “there must be a showing of prejudice before it
is

found

that

the

claimant’s

right

to

due

process

has

been

violated to such a degree that the case must be remanded to the
[Commissioner] for further development of the record.” Graham v.
Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997).

In this case,

Plaintiff has not shown that she suffered prejudice as a result
of the ALJ’s failure to order a neurological exam because there
is no evidence which demonstrates that the ALJ’s decision would
have

changed

if

he

had

ordered

a

neurological

exam.

Thus,

Plaintiff’s claim must fail.
V.

Conclusion

For the reasons set forth, and upon careful consideration
of the administrative record and memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner of Social
Security,

denying

Plaintiff=s

claim

for

supplemental

security

income, be AFFIRMED.
DONE this 27TH day of March, 2012.

/s/ SONJA F. BIVINS_ ___
UNITED STATES MAGISTRATE JUDGE

28