Massey v. Astrue
Order that the decision of the Commissioner denying plaintiff's benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 1/28/2013. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JOHN RANDALL MASSEY,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
) CIVIL ACTION NO. 11-00604-N
Plaintiff John R. Massey (“Massey”) filed this action seeking judicial review of a
final decision of the Commissioner of Social Security (“Commissioner”) that he was not
entitled to Supplemental Security Income (SSI) under Title XVI of the Social Security
Act (the Act), 42 U.S.C. §§ 1381-1383c. Pursuant to the consent of the parties (doc. 20),
this action has been referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Fed. R.Civ.P. 73. See Doc. 21. The parties’ joint motion to waive oral arguments (doc.
19) was granted on September 19, 2012 (doc. 22). Upon consideration of the
administrative record (doc. 14) and the parties’ respective briefs (docs. 15 and 17), the
undersigned concludes that the decision of the Commissioner is due to be AFFIRMED.
Plaintiff John R. Massey filed an application disability insurance benefits (DIB) and
supplemental security income (SSI) under Titles II and XVI of the Social Security Act (the Act),
42 U.S.C. §§ 401-433 and 1381-1383c, on May 21, 2009 (Tr. 129). Massey claimed disability
beginning January 2, 2009 (Tr. 129-131), due to emphysema, chronic obstructive pulmonary
disease (COPD), and acid reflux (Tr. 143).1 Massey was fifty-one years old at the time he
filed his application (Tr. 183). The application was denied on August 10, 2009. (Tr. 6266). Massey requested a hearing on August 9, 2009 (Tr. 68-69) before an Administrative
Law Judge (“ALJ”). A hearing was held on September 3, 2010. (Tr. 29-59). The ALJ
issued an unfavorable decision on September 14, 2010. (Tr. 12-28). Massey requested a
review by the Appeals Council which was denied on August 30, 2011 (Tr. 1-5), thereby
making the ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. §
404.981 (2009).2 Massey has exhausted all his administrative remedies and now appeals
from that final decision.
Claims on Appeal.
Whether the ALJ’s finding that Massey can perform less than a full range
of light work is supported by substantial evidence.
Whether the ALJ erred by failing to properly evaluate Massey’s subjective
Standard of Review.
Scope of Judicial Review.
Massey’s application for disability insurance benefits was omitted from the administrative
record. (Doc. 17 at n. 1).
All references to the Code of Federal Regulations (C.F.R.) are to the 2011 edition. Also, all
references are to Part 404 of the regulations, which addresses claims under Title II of the Act. All of the
cited regulations have parallel citations in Part 416 of the regulations, which addresses claims under Title
XVI of the Act.
In reviewing claims brought under the Social Security Act, this Court's role is a
limited one. Specifically, the Court's review is limited to determining: 1) whether the
decision is supported by substantial evidence, and 2) whether the correct legal standards
were applied. See, 42 U.S.C. § 405(g); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Thus, a court may not
decide the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996); Sewell v. Bowen,
792 F.2d 1065, 1067 (11th Cir. 1986). Rather, the Commissioner's findings of fact must
be affirmed if they are based upon substantial evidence. Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997); Chater, 84 F.3d at 1400; Brown v. Sullivan, 921 F.2d 1233,
1235 (11th Cir. 1991). See also, Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990)(“Even if the evidence preponderates against the Secretary's factual findings, we
must affirm if the decision reached is supported by substantial evidence.”); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that 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. Lynch v. Astrue, 358 Fed.Appx. 83, 86 (11th Cir. 2009);
Martino v. Barnhart, 2002 WL 32881075, * 1 (11th Cir. 2002); Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). Even where there is substantial evidence to the contrary
of the ALJ's findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ's decision. Barron v. Sullivan, 924 F.2d
227, 230 (11th Cir. 1991).
Statutory and Regulatory Framework.
The Social Security Act's general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line. Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act, which defines disability in virtually identical
language for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20
C.F.R. §§ 404.1505(a), 416.905(a). A person is entitled to disability benefits when the
person is 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 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental
impairment” is one 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).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§
404.1520, 416.920 (2010). The Eleventh Circuit has described the evaluation to include
the following sequence of determinations:
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). See also Bell v. Astrue, 2012
WL 2031976, *2 (N.D. Ala. May 31, 2012); Huntley v. Astrue, 2012 WL 135591, *1
(M.D. Ala. Jan. 17, 2012).
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's
Residual Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242–43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, app. 2 (“grids”), or hear testimony
from a vocational expert (VE). Id. at 1239–40.
Massey’s vocational background.
Massey was born on November 3, 1958. (Tr. 129). He was 50 years old on the
alleged disability onset date of January 2, 2009 (Tr. 23), and 52 years old on September
14, 2010, when the ALJ issued his unfavorable decision (Tr. 24). He completed the 10th
grade (Tr. 37), and last worked August through December of 2008 when he was “trying
car sales.” (Tr. 38-39). Massey previously operated his own dump truck but stopped
when he went bankrupt. (Tr. 39-40). Prior to that, Massey worked for 15 years
assembling scaffolding “mostly in ships or . . . bridges.” (Tr. 40)4. In connection with
this job, Massey operated cranes (Tr. 41) and was a supervisor (Tr. 55). He left this job
when there was “no work.” (Tr. 40).
Massey testified that he was 51, divorced, and lived with his sister (Tr. 36). He
testified that he had not looked for work since the onset date of January 2009 (Tr. 41) and
that he was unable to work because walking caused him to experience difficulty
breathing (Tr. 43). Massey admitted, however, that he had not experienced any
complications from his heart surgery in January 2010 (Tr. 17, 19, 44). He said he could
walk for three to four minutes before needing to catch his breath, but said that he had no
limitations in sitting or standing (Tr. 46). He also indicated that he could lift 30 pounds,
but not regularly (Tr. 46-47).
In December 2008, Massey complained of shortness of breath and an x-ray of his
chest showed “some fibrotic changes at the bilateral lung bases”, but no other acute
changes (Tr. 208). An x-ray taken on April 1, 2009, of Massey’s chest showed a possible
mass in his right lung, and diffuse emphysematous changes in both lungs (Tr. 247).
Pulmonary function studies conducted the same day revealed a baseline FVC level of
5.01 which represents 87% of the predicted result and a baseline FVC1 level of 2.86,
The Vocational Expert referred to this job as a “construction rigger.” (Tr. 55).
which represents 64% of the predicted result. (Tr. 233). Following use of a
bronchodilator, Massey had a FVC level of 4.85 representing a change of -3% and a
FEV1 level of 3.08, representing a change of 8%. (Tr. 233). Based on these test results,
Massey was diagnosed with “mild [pulmonary] obstruction.” (Tr. 233, 234).
On May 6, 2009, a Respiratory Therapist diagnosed Massey with “moderate
COPD” (Chronic Obstructive Pulmonary Disease) and noted the medication then
prescribed. (Tr. 246). On July 24, 2009, Dr. F. D. Salter wrote a letter “To Whom It
May Concern” stating that “Mr. Massey is under my care for lung disease that has
rendered him unable to work.” (Tr. 243, 248). On September 11, 2009, Dr. Robert
Lightfoot examined Massey, reported normal breath sounds and no respiratory distress,
and discussed Massey’s efforts to quit smoking with the assistance of a prescribed
medication, Chantrix. (Tr. 251-252). On December 1, 2009, a physical examination
revealed that, although Massey was experiencing chest pain, his COPD was reported to
be “better.” (Tr. 250).5 On December 4, 2009, M. Wail Hashimi, MD, wrote to Dr.
Lightfoot concerning the referral of Massey for evaluation of his chest pain and reported:
It is my understanding that Mr. Massey saw you for chest discomforts. He reports
that several nights ago he had an episode of severe chest pain that radiated down
his left arm and up into his neck. It awoke him from sleep and lasted for
approximately 15 minutes. He had recurrence of the symptoms one night later.
Since then he has not had further symptoms. Normal levels of exertion, however,
has not provoked any chest discomforts, however, going up 2-3 flights of stairs
occasionally gets him short of breath and possible chest pain. . . . His blood
pressure in the office today was 142/90. His exam is otherwise unremarkable.
This assessment indicates that the examination was also conducted by Dr. Lightfoot, but was
unsigned. (Tr. 250).
I have recommended to him that we go ahead and begin treatment for
hypertension and will start him on Norvast. . . . I am going to schedule him for a
Cardiolite stress test and an echo.
On December 29, 2009, F.D. Salter, M.D completed a COPD form and opined that
Massey was unable to “work 8 hours per day, 40 hours per weeks on a sustained
productive basis, without missing more than two days of work per month due to [his]
condition.” (Tr. 262). Dr. Salter stated that he foresaw Massey requiring oxygen within
the next year and “eventually O2 dependence.” (Tr. 262). Dr. Salter’s opinion
referenced only unspecified “Resp[iratory] Therapy Reports.” (Tr. 262).
On January 15, 2010, Massey presented to Providence Hospital complaining of
chest pain (Tr. 264). Cardiac catherization revealed significant left anterior
cardiovascular disease and coronary artery bypass surgery was recommended (Tr. 285,
317). Shaf Holden, M.D., performed the surgery on January 15, 2010 (Tr. 312-314)6. In
his discharge summary, signed on February 2, 2010, Dr. Holden reported that Massey
In his operative report, Dr. Holden stated that the following history of Massey’s chest pain
indicated the need for the operation performed:
Mr. Massey is a 51 year-old white male who for the past 5 weeks has noticed chest pain radiating
to his left arm and neck associated with some diaphoresis. Otherwise, he is asymptomatic. He
had no exacerbating or relieving factors. The pain was relatively random at times, lasting from 3
minutes to 30 minutes and becoming more frequent recently. He did have a stress test, which was
positive, and was scheduled to follow up but unfortunately has an episode of chest pain that
awoke him from sleep and prompted him to go to the emergency room, at which time he was
admitted and had a coronary angiogram, which showed his right coronary to be normal. [Test
results omitted]. We were asked to see him with regard to coronary artery bypass graft. He was
informed of the risks and benefits of operation and agreed to proceed.
was “discharged home in fair condition with good Prognosis.” (Tr. 287). At a follow-up
appointment with Cardiology Associates on March 3, 2010, Massey was reported to have
no complaints, chest pain, or dyspnea (Tr. 333). He had stopped smoking by that time
(Tr. 333). Massey had clear and normal respiration, and a cardiovascular examination
revealed no abnormalities(Tr. 333). He was instructed to follow-up in 4 weeks (Tr. 333),
but no records have been proffered which show that he complied.
The record indicates that Massey next presented for examination in July, 2010.
(Doc. 358). In a letter dated July 30, 2010, Dr. Hashimi, stated:
It is my understanding that [Massey] is applying for disability. Mr. Massey
has known coronary disease and has undergone coronary bypass grafting.
In addition to this, he also has problems with high blood pressure and
abnormal cholesterol. He is being treated with multiple medications for his
high blood pressure, as well as for his cholesterol problems.
Because of his underlying lung disease, in association with the heart disease
that he has, it is my opinion that he is disabled from being able to do any
sort of strenuous physical activity.
(Tr. 355, emphasis added). At his appointment on July 30, 2010, Massey’s blood
pressure was 132/86, his respirations were normal and non-labored, and his cardiac
examination was normal in all respects (Tr. 358). Massey reported no chest pain or other
complaints (Tr. 358). Neither the medical records nor Dr. Hashimi’s correspondence
indicates that any specific physical limitations were ever imposed or that any aspect of
Massey’s physical functional capacity was ever evaluated.
Medical Evidence Submitted to Appeals Council.7
On November 8, 2010, Dr. Hashimi completed a “Heart Questionnaire” in which
he indicated that Massey’s “symptoms [were] due more to severe lung disease than [to]
heart [problems].” (Tr. 359). Dr. Hashimi did not specify any specific functional
limitations, although he did select the option concerning the significance of fatigue which
indicated that Massey's fatigue “is present to such an extent as to be distracting to
adequate performance of daily activities or work.” (Tr. 359).8 Dr. Hashimi conceded
that he did not know either the extent to which physical activity such as walking or
standing increased Massey’s fatigue or forced Massey to “recline or nap during the day,”
if at all. (Tr. 360).
Vocational Expert’s Testimony.
Sue Berthaume, the Vocational Expert, testified that Massey’s past relevant work
as an automobile salesman was skilled and of light exertion; as a construction rigger was
semi-skilled and of heavy exertion; as a construction rigger supervisor was skilled and of
medium exertion; and as a dump truck driver was semi-skilled and of medium exertion.
(Tr. 55). The ALJ then posed a hypothetical question based on a person who could
perform light work; could walk for no more than 15 minutes at one time; had no
limitations in sitting or standing; could perform no climbing; and could not work around
The Appeals Council found that this new evidence did not provide a basis for changing the
ALJ’s decision denying Plaintiff’s application for disability benefits (Tr. 1-5).
Dr. Hashimi’s completed questionnaire were submitted to the Appeals Council after the ALJ
issued an unfavorable decision. (Tr. 12-28).
extreme temperatures, humidity, wetness, environmental pollutants, around dangerous
equipment, or at unprotected heights (Tr. 56). Based upon this hypothetical, Ms.
Berthaume opined that such a person could not perform Massey’s past relevant work, but
could perform other unskilled work, such as cashier, information clerk, or garment folder
The ALJ’s Decision.
The ALJ found at step two that Massey’s COPD and coronary artery disease were
“severe” impairments, but determined at step three that Massey had not met his burden to
show that his impairments or combination of impairments “meets or medically equals one
of the listed impairments at 20 C.F.R. pt. 404, subpt. P, app. 1.” (Tr. 18, Finding No. 4).
The ALJ specifically found that:
Pulmonary function testing does not yield results of a level of severity set
forth in Medical Listing 3.02; moreover, no arterial blood gas studies have
been performed, and there is thus no evidence of listing level pulmonary
insufficiency (Exhibit 3F). The Claimant’s coronary artery disease does
not meet the criteria for disability set forth in Medical Listing 4.04 in that
he does not experience symptoms resulting in very serious limitations in the
ability to independently initiate, sustain, or complete activities of daily
living. The claimant did not produce any physician’s reports, x-rays, or
other appropriate evidence to support a finding that the impairments meets
or equals [sic] a listing. There is no objective and credible medical finding
based on medically acceptable clinical and laboratory techniques that show
that a listing has been met or equaled.
The ALJ also found that Massey’s subjective complaints were not entirely
credible. (Tr. 22). The ALJ noted that Massey “has stopped smoking cigarettes which
reasonably improved pulmonary functioning [and] has not required extensive medical
intervention for the chronic obstructive pulmonary disease.” (Tr. 20). In addition,
Massey was found to be “able to climb stairs,” which he chose to do rather than an
elevator to reach the location of his hearing. (Tr. 20-21). The ALJ also found that
Massey’s medical records show nothing more than a mild pulmonary obstruction and that
the coronary bypass grafting he underwent “relieved much of [his] symptoms.” (Tr. 21).
The ALJ also found that Massey’s testimony concerning his daily activities was
“consistent with the residual functional capacity” applied in this case, including his
testimony that “he cooks and keeps his room clean[;] visits with friends, drives, and
watchestelevision[;] [and] does not do much housework, not because he is unable, but
because his sister, with whom he lives, likes a very clean house and does the cleaning
herself.” (Tr. 21-22).
The ALJ then determined that Massey had the residual functional capacity to
perform a reduced range of light work (Tr. 19, Finding No. 5).9 Although this residual
functional capacity precluded Massey from performing his past relevant work (Tr. 23,
Finding No. 6), the ALJ determined that there were other jobs that Massey could
perform, such as cashier, information clerk, or garment folder (Tr. 23-24, Finding No.
10). As a result, the ALJ determined that Massey was not disabled as defined in the Act
(Tr. 24, Finding No. 11).
Specifically, the ALJ found that Plaintiff could perform less than a full range of light
work, with the following restrictions: limited to walking for no more than 15 minutes at a time before
needing to stop and rest, but with no restriction in his ability to stand or sit; no climbing, or working
around unprotected heights or dangerous equipment; and no exposure to temperature extremes, humidity
and wetness, or exposure to concentrated environmental pollutants (Tr. 19, Finding No. 5).
ALJ’s finding that Massey can perform less than a full range of
light work is supported by substantial evidence.
Massey argues, in sum, that the determination that he could perform less than a
full range of light work is not supported by any medical opinion and the ALJ erred in
rejecting the opinions of his treating physicians, namely Dr. Salter and Dr. Hashimi.
(Doc. 15 at 2-3). The Commissioner argues, in sum, that Massey “sought only sporadic
medical treatment for his COPD during the relevant period,” the treatment records fail to
establish the existence of any significant complaints by Massey or functional limitations
imposed by any physician, and the treatment received has only been conservative in
nature. (Doc. 17 at 6-7).
Controlling weight may be given to a treating physician’s medical opinions if they
are well-supported by medically acceptable clinical and laboratory diagnostic techniques
and are not inconsistent with other substantial evidence in the record. 20 C.F.R. §
404.1527(d)(2). The Eleventh Circuit has addressed this issue as follows:
Absent “good cause,” an ALJ is to give the medical opinions of treating
physicians “substantial or considerable weight.” Lewis, 125 F.3d at 1440;
see also 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause
exists “when the: (1) treating physician's opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating
physician's opinion was conclusory or inconsistent with the doctor's own
medical records.” Phillips, 357 F.3d at 1241. With good cause, an ALJ may
disregard a treating physician's opinion, but he “must clearly articulate [the]
reasons” for doing so. Id. at 1240–41.
Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). The
Eleventh Circuit concludes that “‘good cause’ exists when the: (1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004)(quoting
Lewis, supra 125 F.3d at 1440). An ALJ must clearly articulate his or her reasons for
discounting a treating physician’s opinion. Id.
The ALJ in this case identified good cause for discounting Dr. Salter’s opinion
that Massey is unable to work because of his COPD. The ALJ noted that Dr. Salter
provides no opinion regarding Massey’s actual functional capabilities or limitations but,
instead, merely proffers a conclusory statement that Massey is disabled and unable to
work. (Tr. 248, 262). See 20 C.F.R. § 416.927(d)(3) (“The better an explanation a
source provides for an opinion, the more weight we will give that opinion.”); Phillips v.
Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004)(good cause to not assign substantial or
considerable weight to a treating physician’s opinion exists when the opinion is
conclusory)10. It is the Commissioner who is charged with the statutory duty to
determine whether an individual is “disabled” or “unable to work” and a physician’s
Massey relies on Hillsman v. Bowen, 804 F.2d 1179, 1182 (11th Cir. 1986), for the proposition
that “an ALJ may not reject the opinions of a treating physician by reaching his own medical conclusion
after reviewing the medical records.” (Doc. 15 at 2). Hillsman is, however, distinguishable in that the
ALJ there rejected “the treating physician's explanation of the inability of the treatment he prescribed to
control appellant's hypertension and diabetes” (804 F.2d at 1181) whereas the ALJ in the present case
merely rejected a conclusory opinion that Massey could not work (Tr. 22, 243, 248, 262). Similarly, the
ALJ in the present case did not question the medical diagnosis of either Dr. Salter regarding Massey’s
COPD or Dr. Hashimi regarding the coronary heart disease but, instead, merely rejected Dr. Salter’s
conclusory opinion that Massey could not work. Thus this case is also distinguishable from Marbury v.
Sullivan, a case cited by Massey for the proposition that an “ALJ’s decision not to credit seriously the
medical diagnoses . . . cannot stand.” (Doc. 15 at 3, citing Marbury v. Sullivan, 957 F.2d 837, 841 (11th
Cir. 1992)(J. Johnson concurring).
opinion regarding that issue is not entitled to any special significance, particularly when,
as here, it is not supported by any objective medical evidence. See 20 C.F.R. §
404.1527(e). The record in this case demonstrates that Massey suffers from COPD
which has been described at various times as involving “mild obstruction” (Tr. 233, 234)
or “moderate COPD” (Tr. 246) but also as being “better” on December 1, 2009 (Tr. 250).
Massey’s coronary artery disease required bypass surgery but this surgery relieved most
of his symptoms as demonstrated by his follow-up appointment at which he reported no
cardiovascular complaints, no chest pains and no other complaints. (Tr. 358). No
limitation or restrictions have ever been placed on Massey beyond an order to quit
smoking and to eat a proper, low cholesterol diet. See (Tr. 43-45, 209, 246, 250-52, 254,
In addition, Dr. Salter’s opinion is inconsistent with Massey’s own testimony that
he had no difficulty standing or sitting and could climb stairs as illustrated by his decision
to walk up two flights of stairs to the hearing room rather than take the elevator. (Tr. 43,
46). Dr. Salter’s opinion is also inconsistent with Massey’s admission that he could
occasionally lift up to 30 pounds, helps his sister cook and keeps his room clean. (Tr. 4648). The only difference between Massey’s assessment of his own functional capacity
and the ALJ’s assessment of his functional capacity was that the ALJ concluded that
Massey could walk for up to 15 minutes at a time compared to the three to four minutes
of walking Massey admitted he could accomplish. (Tr. 19, Finding No. 5; Tr. 46).
Massey’s claim that Dr. Hashimi’s opinion was rejected by the ALJ is without
merit. The only limitation imposed on Massey by Dr. Hashimi was that he avoid
“strenuous physical activity” (Tr. 355), a limitation which was expressly acknowledged
and given weight by the ALJ (Tr. 22). The residual functional capacity assessment
adopted by the ALJ is clearly not inconsistent with the limitation imposed by Dr,
It is the ALJ’s responsibility to assess a claimant’s residual functional capacity.
See 20 C.F.R. § 404.1546 (The ALJ is responsible at the administrative level for
assessing your residual functional capacity); Social Security Ruling (SSR) 96-5p, 1996
WL 374183, at *2, 4 (the ALJ has the responsibility of determining claimant’s residual
functional capacity). Because a determination of a claimant’s residual functional capacity
is often “dispositive” of the claimant’s disability status, a residual functional capacity
assessment “must be based on all of the relevant evidence in the case record,” not just
the medical evidence. See 20 C.F.R. 404.1527(e)(2); SSR 96-5p, 1996 WL 374183, at *2;
SSR 96-8p, 1996 WL 374184, at *5 (emphasis added); 20 C.F.R. 404.1545(a). See also
SSR 85-16, 1985 WL 56855, at *2 (“In analyzing the evidence [and evaluating residual
functional capacity], it is necessary to draw meaningful inferences . . . .”); SSR 96-8p,
1996 WL 374184, at *5 (An ALJ must evaluate medical and non-medical information in
the record and then draw appropriate inferences and conclusions about the credibility of a
claimant’s statements); Enke v. Ribicoff, 197 F. Supp. 319, 324 (S.D. Fla. 1961)
(reasonable inferences may be drawn from the record); SSR 96-5p, 1996 WL 374183, at
*2 (“some issues [such as residual functional capacity assessments] are not medical
issues regarding the nature and severity of an individual’s impairment(s) but are
administrative findings” and “the regulations provide that the final responsibility for
deciding issues such as these are reserved to the Commissioner.”).
The ALJ in this case did not assert her own opinion in the place of Massey’s
treating physicians. The ALJ’s assessment of Massey’s residual functional capacity is
consistent with all the evidence in this record, including not only Massey’s own
assessment of his functional capacity but the lack of any limitations or restrictions
imposed by his treating physicians and the status of his health as reported by those
physicians in their treatment notes. The ALJ committed no error with respect to
Massey’s residual functional capacity.
ALJ properly evaluated Massey’s subjective complaints.
Massey’s contention that the ALJ provided no explanation for her
finding that his subjective complaints were not entirely credible is simply not born out by
the record. (Doc. 15 at 3, citing SSR 96-7p)11. The ALJ specifically noted:
• Although Massey complained of back pain, the evidence revealed that he
had complained of back pain on only one occasion, has taken Tylenol for the pain
and received no other treatment for a back impairment (Tr. 18);
• Although Massey claimed he had severe breathing problems due to COPD,
diagnostic tests showed that it was only mild (Tr. 20; see Tr. 233-235, 246);
• Despite claims of a disabling heart impairment, post-surgical examinations have
been normal (Tr. 20; see Tr. 333, 358);
SSR 96-7p states:
It is not sufficient for the adjudicator to make a single, conclusory statement the “the
individual’s allegations have been considered” or that “the allegations are (or are not)
credible.” It is also not enough for the adjudicator simply to recite the factors that are
described in the regulations for evaluating symptoms.
• Massey has failed to return for follow-up examination and/or treatment from his
cardiologist, which indicates his symptoms and difficulties are not serious (Tr.
• Despite claims of severe breathing problems, Massey has not required extensive
medical intervention for his COPD (Tr. 20);
• Despite claims of severe breathing problems, Massey is able to climb stairs, and in
fact climb stairs at his administrative hearing rather than using the elevator (Tr.
20-21; see Tr. 47);
• The objective medical evidence of record fail to support Massey’s claims of
complete disability, and he admitted that he has had no cardiovascular complaints
or difficulties (Tr. 21; see Tr. 44); and
• Massey is able to cook and clean his room, visit with friends, drive, and watch
television (Tr. 21-22; see Tr. 49-50).
The ALJ’s decision contains “specific reasons” for the credibility determination in this
case, which is supported by the evidence of record. The reasons given by the ALJ in this
case are also sufficiently specific to make clear the weight given by the ALJ and her
rationale. See Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995)(“ If the ALJ
decides not to credit a claimant's testimony as to her pain, he must articulate explicit and
adequate reasons for doing so . . . or the implication must be so clear as to amount to a
specific credibility finding.”); Jones v. Dept. of H.H.S., 941 F.2d 1529, 1532 (11th Cir.
1991) (The ALJ may properly find subjective complaints not credible if he articulates
reasons that are supported by the record.); Allen v. Sullivan, 880 F.2d 1200, 1203 (11th
Cir. 1989) (The articulation of three reasons for rejection of a claimant’s subjective
complaints of pain was held to be sufficient to support the ALJ’s finding that they were
Although Massey does not agree with the ALJ’s conclusions, he has failed to
establish that the ALJ committed reversible error in this case. The ALJ properly
determined Massey’s residual functional capacity and, based on that capacity, a
vocational expert testified that Massey could perform the jobs of cashier, information
clerk, or garment folder. (Tr. 23-24, Finding No. 10; Tr. 56-67). See Welch v. Bowen,
854 F.2d 436, 440 (11th Cir. 1986)(“A[vocational expert]’s testimony can establish that
there are jobs that a person with claimant’s determinable limits can perform.”); Arend v.
Astrue, 2012 WL 3264909, *6 (M.D. Ala. Aug. 10, 2012)(“Substantial evidence supports
the ALJ's reliance on the VE testimony [‘that there were a significant number of jobs that
a person with the limits identified by the ALJ could perform’] and the ALJ properly
determined that Plaintiff was not disabled pursuant to 20 C.F.R. § 404.1520(g).”).
Massey does not challenge this finding. Consequently, because Massey has been found
capable of performing other work, he was not disabled under the Act. The ALJ properly
evaluated Massey’s subjective complaints.
For the reasons set forth above, the Court concludes and it is therefore
ORDERED that the decision of the Commissioner of Social Security denying plaintiff’s
benefits be and is hereby AFFIRMED.
28th day of January, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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