Reed v. Colvin
Order re: 1 Complaint filed by Johnny A. Reed stating the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/11/17. Copies to counsel. (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JOHNNY A. REED,
* CIVIL ACTION NO. 16-000090-B
Acting Commissioner of Social
Plaintiff Johnny A. Reed (hereinafter “Plaintiff”), seeks
Social Security denying his claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et seq., and 1381, et seq.
proceedings in this case.
On May 25, 2017, the parties
Thus, the action was
referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Nancy Berryhill became the Acting Commissioner of Social
Security on January 23, 2017.
Pursuant to Rule 25(d), Federal
Rules of Civil Procedure, Nancy Berryhill should be substituted
for Carolyn W. Colvin as the defendant in this suit. No further
action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C.
Federal Rule of Civil Procedure 73.
Upon careful consideration
of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
Plaintiff protectively filed his application for benefits
on October 1, 2012, alleging disability beginning April 30, 2011
based on diabetes, problems with legs, back problems, problems
with right ankle, no sight in right eye, problems with left eye,
and high blood pressure.
(Tr. 133, 171, 183).
application was denied and upon timely request, he was granted
an administrative hearing before Administrative Law Judge James
Barter on February 10, 2014.
Plaintiff attended the
hearing with his counsel and provided testimony related to his
A vocational expert (“VE”) also appeared at the
hearing and provided testimony.
On July 25, 2014,
the ALJ issued an unfavorable decision finding that Plaintiff is
The Appeals Council denied Plaintiff’s
request for review on January 15, 2016.
decision of the Commissioner.
timely filed the present civil action.
was conducted on June 1, 2017 (Doc. 21), and the parties agree
that this case is now ripe for judicial review and is properly
Issues on Appeal
1. Whether substantial evidence supports the
RFC for a range of sedentary work with
the stated restrictions?
2. Whether the ALJ fully considered
effect of Plaintiff’s obesity on
ability to work?
III. Factual Background
Plaintiff was born on August 22, 1968, and was forty-five
February 10, 2014.
(Tr. 34, 39, 171).
Plaintiff graduated from
handyman and as a sales person in a hardware store from 1986 to
(Tr. 39, 184).
At the administrative hearing, Plaintiff
testified that he cannot work now because he has problems with
blindness in his right eye (detached retina), low vision in his
pressure, leg pain (neuropathy), and low back pain.2
In addition to taking insulin for diabetes, Plaintiff takes
medication for high blood pressure and cholesterol.
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).
Martin v. Sullivan, 894 F.2d
A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
affirmed if they are based upon substantial evidence.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
substantial evidence is defined as “more than a scintilla, but
evidence as a reasonable person would accept as adequate to
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Chester v. Bowen, 792 F. 2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
(S.D. Ala. June 14, 1999).
Statutory And Regulatory Framework
An individual who applies for Social Security disability
Disability is defined as the “inability 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
determining if a claimant has proven his disability.
§§ 404.1520, 416.920.
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
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
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
In evaluating whether the claimant has met this burden,
objective medical facts and clinical findings; (2) diagnoses of
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
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
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.
Apfel, 190 F.3d 1224, 1228 (11th
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)).
A. Substantial evidence supports the ALJ’s
RFC for a range of sedentary work with
the stated restrictions.
sedentary work is not supported by substantial evidence because
it is not based on an RFC assessment by a medical expert.
12 at 2).
Specifically, Plaintiff argues that the record is
devoid of an RFC assessment by any medical expert, except for
states that he requested an additional consultative examination,
but the request was denied.
(Doc. 12 at 4).
Plaintiff argues that the ALJ did not assign appropriate weight
to his treating physician. 4
Having reviewed the record
at length, the Court finds that Plaintiff’s claims are without
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
See 20 C.F.R. §
Determinations of a claimant’s residual functional
capacity are reserved for the ALJ, and the assessment is to be
based upon all the relevant evidence of a claimant’s remaining
ability to work despite his or her impairments, and must be
supported by substantial evidence.
See Beech v. Apfel, 100 F.
404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997)); Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10,
2012 WL 997222, *4 (M.D. Ala. March 23, 2012).
Once the ALJ has
In his brief, Plaintiff fails to identify any treating physician
or any treating physician’s opinion that the ALJ purportedly
discounted. Accordingly, this argument is unavailing.
decision is not supported by substantial evidence.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).
See Flynn v.
failed to meet his burden in this case.
retinopathy in the right eye, gout, hypertension, obesity, lower
back pain, and peripheral neuropathy.
Even so, the
ALJ found that Plaintiff still has the RFC to perform a range of
“cannot climb ladders, ropes and scaffolds and cannot crawl.
[He] has the ability to occasionally climb stairs, stoop, crouch
and kneel, but he cannot work at unprotected heights, should
avoid hazards, and should avoid jobs that require good depth
perception or fine vision.”
Based upon the testimony
Plaintiff is unable to perform his past work as a sales clerk,
“surveillance system monitor,” and “waxer,” all of which are
sedentary and unskilled.
Thus, the ALJ found that
Plaintiff is not disabled.
For the reasons discussed herein,
substantial evidence simply because the record is devoid of a
substantial evidence, even in the absence of an opinion from an
examining medical source about Plaintiff’s functional capacity.”
Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10, 2012 WL
997222, *4 n.5 (M.D. Ala. March 23, 2012) (citing Green v. Soc.
physician)); see also Packer v. Astrue, 2013 U.S. Dist. LEXIS
20580, *7, 2013 WL 593497, *2 (S.D. Ala. February 14, 2013) (the
fact that no treating or examining medical source submitted a
physical capacities evaluation “does not, in and of itself, mean
that there is no medical evidence, much less no ‘substantial
evidence,’ to support the ALJ’s decision.”).
argument is without merit.
Second, in fulfilling his or her duty to conduct a full and
fair inquiry, the ALJ has the discretion to order a consultative
examination where the record establishes that such is necessary
to enable the ALJ to render a decision.
Holladay v. Bowen, 848
F.2d 1206, 1210 (11th Cir. 1988).
The ALJ is not required to
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1269
(11th Cir. 2007)(“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.”); Good v. Astrue, 240 Fed. Appx. 399, 404
sufficient for a decision.”).
Having reviewed the record in this case, the Court finds no
error in the ALJ’s decision to deny Plaintiff’s request for an
additional consultative examination.
Indeed, the record before
the ALJ contained examination findings and consultative reports
Sharpe, M.D., and from a consulting optometrist, Dr. John W.
(Tr. 292, 300).
December 1, 2012, Dr. Sharpe noted that Plaintiff had a history
of diabetes for approximately twenty years for which he was
being treated with medication and insulin.
Sharpe noted that Plaintiff had no kidney disease, no cerebral
vascular accident, no heart disease, no hospitalizations, and no
emergency room visits in the previous two years. 5
With respect to Plaintiff’s vision problems, Dr. Sharpe found
that Plaintiff’s eyesight was 20/70 in his left eye and 20/200
in his right eye without lenses.
to Dr. Sharpe that he wore reading glasses and managed all of
his activities of daily living, including cooking and driving,
although he did not drive at night.
Upon examination, Dr. Sharpe found that Plaintiff could bend to
remove his shoes and socks and climb on and off the examination
table (although he performed the latter with some difficulty);
he had a normal gait (although he had difficulty with heel/toe
gait); he needed no assistive device; and he had 5/5 muscle bulk
and strength, and 5/5 bilateral grip strength, with intact tone
and no atrophy. (Tr. 301-02).
Dr. Sharpe diagnosed Plaintiff
with diabetes mellitus with retinopathy and neuropathy, lower
back pain, morbid obesity, and uncontrolled hypertension.
Plaintiff reported to his treating ophthalmologist, Dr. Mark
Douglas, M.D., on August 27, 2013, that he had been able to
control his diabetes with medication. (Tr. 328).
Next, the record before the ALJ contained the consultative
report of Dr. John W. Clardy, O.D., an optometrist who performed
an eye examination on Plaintiff on November 27, 2012, and found
that Plaintiff had a detached retina in the right eye (with a
poor prognosis),6 and a normal visual field in the left eye (with
Plaintiff had sufficient vision in his right eye to see hand
motions (without the use of lenses), but that he had no depth
Dr. Clardy opined that Plaintiff
record contained the treatment notes of Plaintiff’s internist,
Dr. Huguette Douyon, M.D., who documented repeatedly throughout
2012 to 2014 that Plaintiff reported “no blurred vision.”
Plaintiff testified at his hearing in 2014 that, even with his
vision problems, he is able to read large print with glasses and
change, and cook.
(Tr. 41, 48, 176-80).
The treatment notes from Dr. Mark Douglas, M.D., from 2010 to
2013 also contain diagnoses of diabetic retinopathy, macular
degeneration, and detached retina of the right eye.
(Tr. 22942, 328-32).
Also, with respect to Plaintiff’s low back pain, the record
confirms the ALJ’s finding that there is no objective evidence,
such as MRIs or x-rays, showing any significant impairment of
To the contrary, Dr. Douyon treated
(Tr. 335, 351-52, 381).
Also, as stated, Plaintiff
reported driving, shopping, and mowing the lawn, and there is no
evidence of any problems with ambulation or the need for a cane
or other assistive device.
(Tr. 176-80, 302).
With respect to Plaintiff’s gout in his right arm and hand,
Dr. Douyon found in January 2012 that Plaintiff had stiffness
and decreased range of motion in his right elbow; however, he
had normal muscle strength and no joint swelling.
recommended only ice and elevation.
2012, Dr. Sharpe found normal range of motion in Plaintiff’s
upper extremities bilaterally.
With respect to Plaintiff’s hypertension, the record shows
that Dr. Douyon prescribed medication, diet, and exercise, while
noting Plaintiff’s poor compliance with his medication.
Plaintiff’s hypertension, or any of his impairments for that
matter, resulted in limitations in excess of the RFC.
Based on the foregoing, the Court finds that the record was
without obtaining an RFC assessment from a medical source.
Court further finds that substantial evidence supports the ALJ’s
determination that Plaintiff can perform a range of sedentary
work with the stated restrictions.
Indeed, Plaintiff has failed
to show that any limitations caused by his impairments exceed
the RFC and are not accommodated by the RFC and its stated
Accordingly, Plaintiff’s claim must fail.
B. The ALJ properly considered the effect of
Plaintiff’s obesity on his ability to
Last, Plaintiff argues that the ALJ erred in failing to
consider the impact of obesity on his ability to work, despite
finding it to be a severe impairment.
Plaintiff claims that the
ALJ did not mention obesity, except when he found it to be
(Doc. 12 at 5).
Plaintiff’s claim is without merit.
Social Security Ruling 02–1p guides courts in evaluating
disability claims brought by a claimant with obesity, providing
that an ALJ will consider a claimant’s obesity at every step of
the sequential evaluation process.
LEXIS 1, 2002 WL 34686281.
See SSR 02–1p, 2002 SSR
The Ruling states that “the combined
effects of obesity with other impairments can be greater than
the effects of each of the impairments considered separately”
impairment when, alone or in combination with another medically
determinable physical or mental impairment(s), it significantly
limits an individuals physical or mental ability to do basic
“There is no specific level of weight
impairment,” nor do “descriptive terms for levels of obesity
disability program purposes.”
Rather, the Agency “will do
an individualized assessment of the impact of obesity on an
individual’s functioning when deciding whether the impairment is
The Ruling recognizes, for example, that “someone
with obesity and arthritis affecting a weight-bearing joint may
have more pain and limitation than might be expected from the
In such cases, “[a]n assessment should .
be made of the effect obesity has upon the individual’s
activity within the work environment.”
Contrary to Plaintiff’s argument, the record shows that the
sequential evaluation process, including in assessing whether
Plaintiff met a Listing.
The ALJ stated:
undersigned must consider all of the claimant’s
physical and mental listings in conjunction with
the claimant’s obesity to determine if the
claimant’s obesity has reached a level that would
cause the claimant’s other impairments to meet or
medically equal a listed impairment (SSR 02-1p).
The ALJ concluded, based on the medical evidence of
record, that Plaintiff’s physical impairments, in conjunction
with his obesity, did not meet a Listing.
Then, the ALJ
expressly considered Plaintiff’s obesity in assessing the RFC,
[T]he claimant has had a long medical history of
morbid obesity (Exhibits 2F, 3F, 5F, 9F, 11F).
His medical evidence shows that he is 5’3” and
weighs approximately 300 pounds, with a Body Mass
Index approaching 53 (Exhibits 2F, 9F). His
physicians have counseled him on weight loss and
have encouraged a good nutrition and exercise
regimen (Exhibit 2F/44). The undersigned must
consider the combined effects of obesity with
other impairments, and as such, finds it likely
that the claimant’s lower back pain and leg pain
could be associated with his morbid obesity (SSR
02-1p). The claimant testified that he must
alternate between sitting and standing to help
alleviate lower back pain and leg pain, and that
he can walk though he must take breaks. As such,
combination with the claimant’s obesity supports
a less than sedentary exertional level with
limitations on the claimant’s ability to climb
stairs, stoop, crouch and kneel.
activities of daily living (driving, mowing, shopping, walking
short distances, visiting family and church), as well as Dr.
Sharpe’s observation that Plaintiff was able to bend to remove
his shoes and socks and was able to get on and off the examining
table, although with some difficulty noted with respect to the
(Tr. 25-27, 177-79).
The ALJ concluded that, “although
the claimant has been diagnosed as being morbidly obese, which
may be attributing to some pain in his extremities, he is still
brother weekly, indicating no serious limitation on his ability
to ambulate effectively.”
Having reviewed the evidence at length, the Court concludes
that the ALJ’s findings, including his specific reference to SSR
Plaintiff’s obesity and its effect on his other impairments at
all steps of the evaluation process.
It is the Plaintiff who
bears the burden of proving his disability in this case.
C.F.R. 404.1512 (“In general, you have to prove to us that you
are . . . disabled.).
Plaintiff has failed to show that his
obesity has in fact caused limitations to his exertional and
postural functions in excess of his RFC.7 Indeed, the substantial
evidence shows the contrary.
Thus, Plaintiff’s claim must fail.
As stated, the ALJ found that, while Plaintiff has the RFC to
perform a range of sedentary work, he “cannot climb ladders,
ropes and scaffolds and cannot crawl.
[He] has the ability to
occasionally climb stairs, stoop, crouch and kneel, but he
cannot work at unprotected heights, should avoid hazards, and
should avoid jobs that require good depth perception or fine
vision.” (Tr. 25).
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for a
supplemental security income be AFFIRMED.
DONE this 11th day of September, 2017.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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