Norfleet v. Astrue

Filing 25

MEMORANDUM AND OPINION: Ordered that the decision of the Commissioner be AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Bert W. Milling, Jr on 5/7/2012. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
GLORIA NORFLEET,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 11-0482-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 14-15).
The parties filed written consent and 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. 22).
argument was waived in this action (Doc. 24).

Oral

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
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substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
thirty-four years old, had completed a high school education
(Tr. 41), and had previous work experience as a babysitter, food
service manager, and nursery home worker (Tr. 41-47).

In

claiming benefits, Plaintiff alleges disability due to morbid
obesity, umbilical hernia, hypertension, headaches, duodenal
ulcer disease, diabetes, peripheral vascular edema, carpal
tunnel syndrome, intra abdominal mass, osteoarthritis,
peripheral neuritis, cholecystitis, and depression (Doc. 14).
The Plaintiff filed applications for disability and SSI on
January 7, 2009 (Tr. 132-38; see also Tr. 9).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
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who determined that although she could not return to her past
relevant work, there were specified sedentary jobs which
Norfleet could perform (Tr. 9-28).

Plaintiff requested review

of the hearing decision (Tr. 5) by the Appeals Council, but it
was denied (Tr. 1-4).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Norfleet

(1) The Appeals Council failed to properly

examine newly-submitted evidence; (2) the ALJ’s residual
functional capacity (hereinafter RFC) fails to consider all of
her impairments; (3) the ALJ failed to complete a Psychiatric
Review Technique Form (hereinafter PRTF) or incorporate that
information into the decision; and (4) the ALJ’s hypothetical
questions to the vocational expert were not complete (Doc. 15).
Defendant has responded to—and denies—these claims (Doc. 19).
Plaintiff’s first claim is that the Appeals Council failed
to properly examine newly-submitted evidence (Doc. 15, p. 8).
It should be noted that "[a] reviewing court is limited to [the
certified] record [of all of the evidence formally considered by
the Secretary] in examining the evidence."
760 F.2d 1186, 1193 (11th Cir. 1985).

Cherry v. Heckler,

However, “new evidence

first submitted to the Appeals Council is part of the
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administrative record that goes to the district court for review
when the Appeals Council accepts the case for review as well as
when the Council denies review.”

Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994).

Under

Ingram v. Commissioner of Social Security Administration, 496
F.3d 1253, 1264 (11th Cir. 2007), district courts are instructed
to consider, if such a claim is made, whether the Appeals
Council properly considered the newly-submitted evidence in
light of the ALJ’s decision.

To make that determination, the

Court considers whether the claimant “establish[ed] that:

(1)

there is new, noncumulative evidence; (2) the evidence is
'material,' that is, relevant and probative so that there is a
reasonable possibility that it would change the administrative
result, and (3) there is good cause for the failure to submit
the evidence at the administrative level."

Caulder v. Bowen,

791 F.2d 872, 877 (11th Cir. 1986).
In examining the action at hand, the Court notes that the
Appeals Council denied review of the additional evidence (Tr. 14).

Therefore, the Court will look at the three prongs of

Caulder to determine how to proceed.
In examining the new evidence, the Court notes that, with
few exceptions, the treatment notes, pain form, and medical
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source statement from Dr. Judy Travis (Tr. 517-29) represent
periods of time either pre-dating Norfleet’s asserted date of
disability, May 27, 2007, or post-date the ALJ’s decision date
of July 16, 2010.

Dr. Travis examined Plaintiff on July 15,

July 27, and August 5, 2010 (Tr. 521-22), but the notes shed no
new evidence leading to a disability finding; the Court further
notes that the treatment notes post-dating the ALJ’s decision
provide no indication that the diagnoses relate back to any
earlier period (see Tr. 518-20).

Dr. Travis also completed a

medical source statement which indicates that Plaintiff is
extremely limited in her ability to do anything (Tr. 527-29).
The Court notes that the form is dated March 14, 2011 and
indicates that these limitations date back to 2009 (Tr. 529),
though there is a gap in treatment notes from September 28, 2006
until July 15, 2010.
The Court notes that the medical notes from Dr. Fernando
Alegria date from November 24, 2008 through April 7, 2009 (Tr.
530-52) and concern Norfleet’s complaints of abdominal pain.
Though some of this evidence duplicates other records already
available in the transcript (see Tr. 290, 303-04, 306-09), the
Court notes that later records from Dr. Alegria (Tr. 446-58)
provide information more germane to Plaintiff’s impairments, but
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still come up short in Plaintiff’s burden of proving disability.
The Court finds that the three-prong standard has not been
met because there is not a reasonable possibility that it would
change the administrative result.

The evidence from Dr. Travis

does not relate to the relevant period of consideration; the
evidence from Dr. Alegria is cumulative to and pre-dates more
relevant evidence in the record.

Norfleet’s claim that the

Appeals Council failed to properly examine newly-submitted
evidence is without merit.
Plaintiff next claims that the ALJ’s determination of her
RFC fails to consider all of her impairments.

More

specifically, Norfleet asserts that the ALJ failed to consider:
(a) the severity of some of her impairments; (b) the combined
effect of her impairments; and (c) the effect her medications
have on her (Doc. 15, pp. 2-5, 6-8).

The Court notes that the

ALJ is responsible for determining a claimant=s RFC.

20 C.F.R. '

404.1546 (2011).
In connection with this claim, the Plaintiff first asserts
that the ALJ failed to consider the severity of her impairments.
She specifically references her carpal tunnel syndrome,
headaches, duodenal ulcer disease (Doc. 15, p. 4).

The Court

notes that , in Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.
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1984), the Eleventh Circuit Court of Appeals held that "[a]n
impairment can be considered as not severe only if it is a
slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the
individual's ability to work, irrespective of age, education, or
work experience."

Brady v. Heckler, 724 F.2d 914, 920 (11th

Cir. 1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985);
cf. 20 C.F.R. § 404.1521(a) (2011).1

The Court of Appeals has

gone on to say that "[t]he 'severity' of a medically ascertained
disability must be measured in terms of its effect upon ability
to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality."
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

McCruter

It is also

noted that, under SSR 96-3p, “evidence about the functionally
limiting effects of an individual’s impairment(s) must be
evaluated in order to assess the effect of the impairment(s) on
the individual’s ability to do basic work activities.”
The Court notes that the ALJ found that certain of
Norfleet’s impairments were severe (Tr. 12).

Though not stating

specifically that the impairments Plaintiff now references were

1

"An impairment or combination of impairments is not severe if
it does not significantly limit your physical or mental ability to do
basic work activities."

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severe or not, the ALJ’s failure to include them in the list
implicitly relegates them to the level of non-severe
impairments.

The Court would further note that although

Plaintiff has cited numerous references in the record to
substantiate the existence of these impairments, Norfleet has
not shown that they, individually, inhibit her ability to work
under Brady.

As such, the Court finds no error in the ALJ’s

failure to specifically designate the impairments as severe or
non-severe.
Plaintiff next claims that the ALJ’s determination of her
RFC fails to consider the combined effect of her impairments.
It is true that "the Secretary shall consider the combined
effect of all of the individual's impairments without regard to
whether any such impairment, if considered separately, would be
of such severity."

42 U.S.C. § 423(d)(2)C).

The Eleventh

Circuit Court of Appeals has noted this instruction and further
found that "[i]t is the duty of the administrative law judge to
make specific and well-articulated findings as to the effect of
the combination of impairments and to decide whether the
combined impairments cause the claimant to be disabled."

Bowen

v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984); see also Reeves
v. Heckler, 734 F.2d 519 (11th Cir. 1984); Wiggins v. Schweiker,
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679 F.2d 1387 (11th Cir. 1982).
In the ALJ's findings, he lists Plaintiff's impairments and
concludes by saying that she “does not have an impairment or
combination of impairments that meets or medically equals one of
the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1” (Tr. 12).

This specific language has been upheld by

the Eleventh Circuit Court of Appeals as sufficient
consideration of the effects of the combinations of a claimant's
impairments.

Jones v. Department of Health and Human Services,

941 F.2d 1529, 1533 (11th Cir. 1991) (the claimant does not have
“an impairment or combination of impairments listed in, or
medically equal to one listed in Appendix 1, Subpart P,
Regulations No. 4").

Norfleet’s claim notwithstanding, the ALJ

has sufficiently met the Jones requirement.
Plaintiff next claims that the ALJ’s determination of her
RFC fails to consider the effect her medications have on her.
More specifically, Norfleet argues that the fact that the
medical records show that she takes seven different blood
pressure medications should be sufficient evidence to support
her assertion that it causes her to need to urinate three times
hourly (Doc. 15, p. 6).
The ALJ specifically addressed this issue, noting that
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medical evidence had supported her claim of frequent urination
in March 2007 though “the treatment records reveal that the
claimant failed to report having any problem with frequent
urination after that date” (Tr. 22).

The evidence supports this

conclusion and Norfleet has failed to point to anything
suggesting otherwise.

Plaintiff’s assertion that her taking

seven hypertension medications should be evidence enough is
baseless.
Finally, with regard to the RFC, Norfleet has asserted that
the ALJ ignored the impact of her morbid obesity (Doc. 15, pp.
6-8).

The Court notes that, in SSR 02-1p, the Social Security

Administration issued a ruling entitled Evaluation of Obesity
which examines the analysis for determining the following:
whether a person is obese (based on a formula known as the Body
Mass Index); whether the obesity is a medically determinable
impairment; and whether the obesity is severe.

The latter

determination is made by determining whether “it significantly
limits an individual’s physical or mental ability to do basic
work activities.”

SSR 02-1p.

The ALJ specifically noted that he had considered the
impact, noting that obesity was no longer a Listing (Tr. 25).
The ALJ specifically found that Norfleet had the ability to
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perform specified sedentary jobs.

As with Plaintiff’s claim

concerning the ALJ’s failure to consider the combined effect of
her impairments, the Court finds that this claim lacks merit.
Norfleet has also claimed that the ALJ failed to complete a
PRTF or incorporate that information into the decision.
Defendant has pointed out, in brief, that the law had changed at
the time of the ALJ’s decision so that the Form was no longer
required (Doc. 19, p. 11, n.8).

20 C.F.R. § 404.1520a (2011).

However, since that time, the Eleventh Circuit Court of Appeals,
in Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005), has
held that “where a claimant has presented a colorable claim of
mental impairment, the social security regulations require the
ALJ to complete a PRTF, append it to the decision, and
incorporate its mode of analysis into his findings and
conclusions.

Failure to do so requires remand.”

Defendant has further asserted, however, that Plaintiff did
not assert a mental impairment during the administrative
proceedings (Doc. 19, p. 11).

The evidence shows that a

disability report completed by Plaintiff in connection with her
application asserts no mental impairments (Tr. 178).

The Court

also notes that the ALJ specifically listed physical impairments
which Norfleet had asserted as the basis for her disability
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claim (Tr. 36), and that when he queried her about her ailments,
she, again, asserted no mental impairments (see
59; see generally Tr. 35-76).

Tr. 48-52, 56-

Plaintiff cannot now avail

herself of the ALJ’s failure to address a claim not asserted.
Norfleet’s final claim is that the ALJ’s hypothetical
questions to the vocational expert were not complete.

This

claim was made in connection with Plaintiff’s various assertions
regarding the ALJ’s failure to properly consider her RFC (Doc.
15, pp. 3-4).
The Court notes that the Eleventh Circuit Court of Appeals
has held that an ALJ's failure to include severe impairments
suffered by a claimant in a hypothetical question to a
vocational expert to be reversible error where the ALJ relied on
that expert's testimony in reaching a disability decision.
Pendley v. Heckler, 767 F.2d 1561 (11th Cir. 1985).

As the

Court has already found, in this Memorandum Opinion, that
Norfleet’s assertion that the ALJ did not properly consider the
severity of some of her impairments to be without merit, this
claim too must fail.
Plaintiff has raised four different claims in bring this
action; none of those claims have merit.

Upon consideration of

the entire record, the Court finds "such relevant evidence as a
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reasonable mind might accept as adequate to support a
conclusion."

Perales, 402 U.S. at 401.

Therefore, it is

ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and
that this action be DISMISSED.

Judgment will be entered by

separate Order.
DONE this 7th day of May, 2012.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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