York v. Astrue
Order ent. that the decision of the Commissioner of Social Security denying Plaintiff's claim for disability insurance benefits and supplemental income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/28/2013. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SHERONE DENISE YORK,
CAROLYN W. COLVIN,1
Commissioner of Social Security,
Civil Action No. 12-00023-B
Plaintiff, Sherone Denise York (hereinafter “Plaintiff”), brings this action seeking judicial
review of a final decision of the Commissioner of Social Security denying her claim for
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. On October 12, 2012, the
parties consented to have the undersigned conduct any and all proceedings in this case. (Doc.
17). 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 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 AFFIRMED.
Plaintiff protectively filed an application for disability insurance benefits on June 3, 2008.
(Tr. 172). She also filed an application for supplemental security income benefits on June 19,
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue 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. § 405(g).
2008. (Id. at 151). Plaintiff alleges that she has been disabled since June 18, 2007,2 due to her
left arm amputation, phantom pain, and blood clots in her legs. (Id. at 73, 176). Plaintiff also
claims that she suffers from depression, hypertension, and obesity. (Id. at 425, 427-28, 431).
Plaintiff’s applications were denied initially, and she timely filed a Request for Hearing. (Id. at.
33). On November 20, 2009, Plaintiff’s first administrative hearing was suspended so that the
ALJ could obtain additional medical records and Plaintiff could retain an attorney. (Id. at 68).
On July 15, 2010, Plaintiff and her attorney attended a second administrative hearing before
Administrative Law Judge Joseph F. Dent (hereinafter “ALJ”). (Id. at 409). A vocational expert
(“VE”) also appeared at the hearing and provided testimony. (Id. at 440). On August 11, 2010,
the ALJ issued an unfavorable decision finding that Plaintiff is not disabled.
(Id. at 23).
Plaintiff’s request for review was denied by the Appeals Council on November 23, 2011. (Id. at
1). 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).
Issues on Appeal
Whether the ALJ erred in failing to evaluate Plaintiff’s obesity in
accordance with Social Security Ruling (“SSR”) 02-1p?
Whether the ALJ erred in rejecting Plaintiff’s subjective
complaints of pain?
Plaintiff was born on July 30, 1974, and was thirty-five years of age at the time of the
Plaintiff previously submitted applications for disability insurance benefits and
supplemental security income in July 2007. (Tr. at 23, 172-73). Those applications
were denied on January 15, 2008, and Plaintiff did not appeal the decisions, rendering
them final. (Id.). The ALJ found that any alleged disability from June 18, 2007 through
January 15, 2008, is precluded by res judicata. (Id. at 23). Plaintiff does not challenge
second administrative hearing. (Tr. at 414). Plaintiff testified that she completed high school
and worked for approximately ten years as a stocker at Wal-Mart until she was injured in a motor
vehicle accident on June 18, 2007. (Id. at 414-16). The accident resulted in the amputation of
Plaintiff’s left (non-dominant) arm, and while hospitalized, she suffered blood clots in
her legs. (Id. at 176, 281). Plaintiff maintains that she cannot return to work now because of
the amputation of her left arm, phantom pain, hypertension, depression, and obesity.
(Id. at 176, 423-29, 431; Doc. 14 at 3-4, 6).
At the administrative hearing conducted on July 15, 2010, Plaintiff testified that she
experiences burning and aching in her left arm that she estimated (on an ascending pain scale of
one to ten) as being an eight out of ten without medication and a six or seven with medication.
(Id. at 424). She testified that the pain in her arm “goes and comes.” (Id.). In addition, Plaintiff
testified that she has hypertension which is controlled with medication, and that her hypertension
causes her to experience headaches two or three times a week that last for about thirty minutes at
a time. (Id. at 425, 433). According to Plaintiff, she is five feet, three inches tall and weighs two
hundred ninety pounds. (Id. at 427-28). Plaintiff indicated that she has problems with her ankles
swelling and with sitting,3 standing, walking, reaching, and lifting.4 (Id. at 422, 424, 426-28).
Plaintiff also testified that, as a result of her amputation, she can no longer tie shoes, button
clothing, bathe under her arms, comb her hair, pick up her children, sweep, or open jars. (Id. at
Plaintiff testified that she is only able to sit for forty-five minutes, stand for forty minutes, and
walk for fifteen minutes. (Tr. at 426-27).
Plaintiff testified that she cannot lift her twenty-seven pound baby, but she can lift a gallon of
milk. (Tr. at 422-23).
Plaintiff further testified that she is the primary caregiver for her four children, ages
eleven, four, three, and one. (Id. at 417). In addition, Plaintiff indicated that she is able to
shower and “put on [her] clothes,”5 prepare simple meals, dust, use a vacuum, fold some clothes,
change diapers, and with daily help from near-by relatives, she is able to dress and bathe her
children. (Id. at 185-88, 418-19, 421-23). Plaintiff also reported that she drives, shops, attends
church, goes to doctor’s appointments, and gets her medication refilled.6 (Id. at 188-89, 421-22,
Plaintiff has had no vocational rehabilitation, therapy, or training since leaving the
hospital following her accident in 2007. (Id. at 430-31). She testified that she takes medication
for depression and pain, and that the pain mediation makes her sleepy. (Id. at 419-20, 431).
Standard Of Review
In reviewing claims brought under the Act, this Court’s role is a limited one. The Court’s
review is limited to determining 1) whether the decision of the Secretary is supported by
substantial evidence and 2) whether the correct legal standards were applied. 7 Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A court may not decide the facts anew, reweigh
Plaintiff testified that she needs help putting on certain clothing. (Tr. at 418).
Plaintiff stated in her Function Report dated August 4, 2008, that she gets up in the morning
and “put[s] on [her] clothes, help[s] prepare breakfast for [her] children[,] help[s] feed them[,]
put[s] on their clothes[,] play[s] a little while[,] do[es] some household chores[,] help[s]
prepare lunch for them[,] [and] rest[s].” (Tr. at 185). She also stated that she takes care of her
four children, including changing their diapers, helping prepare their meals, and helping with
their baths, that she is able to dust, fold some clothes, and sweep, and that she maintains a bank
account and is able to pay her bills and handle her finances. (Id. at 186-188).
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).
the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792
F.2d 1065, 1067 (11th Cir. 1986). The Commissioner’s findings of fact must be affirmed if they
are based upon substantial evidence. Brown v. Sullivan, 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.”).
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, *4 (S.D. Ala. June 14, 1999).
An individual who applies for Social Security disability benefits must prove his
disability. 20 C.F.R. §§ 404.1512, 416.912. 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 months.” 42 U.S.C. §§ 423(d)(1)(A); see also 20
C.F.R. §§ 404.1505(a), 416.905(a).
The Social Security regulations provide a five-step
sequential evaluation process for determining if a claimant has proven her disability.8 20 C.F.R.
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
§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff has not engaged in substantial
gainful activity since June 18, 2007, and that she has the severe impairments of amputation of
left upper extremity, major depressive disorder (mild), hypertension (benign), and morbid
obesity.9 (Tr. at 25). The ALJ also determined that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of the listed impairments
contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 26).
The ALJ concluded that Plaintiff retains the residual functional capacity (hereinafter
“RFC”) to perform less than the full range of sedentary work. (Id. at 27). Specifically, the ALJ
found that Plaintiff is limited to sedentary work which will allow her to alternate between sitting
and standing positions every thirty to sixty minutes throughout the day while remaining at her
work-station. (Id.). He also found that Plaintiff cannot push, pull, reach, handle, or finger with
her left upper extremity, which is not her dominant upper extremity, and that she cannot crawl,
climb ladders, ropes, or scaffolds.
Additionally, he determined that Plaintiff can
four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age, education and work history. Id.
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, 836
(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)).
The ALJ also found that Plaintiff had the non-severe impairment of deep venous thrombosis
(“DVT”), which was non-severe because Plaintiff only had this condition while she was in the
hospital recovering from the motor vehicle accident, and it did not last more than twelve
consecutive months. (Tr. at 26).
occasionally balance, stoop, kneel, crouch, and climb ramps and stairs, and that she can
frequently reach overhead with her right upper extremity, her dominant upper extremity. (Id.).
He also found that Plaintiff should avoid all exposure to hazardous machinery and unprotected
heights, and that she is limited to performing simple, routine, and repetitive one and two step
tasks in a low stress job involving only occasional decision making and only occasional changes
in the work setting. (Id.). The ALJ determined that while Plaintiff’s left arm amputation has
caused an “obvious limitation,” her statements concerning the intensity, persistence, and limiting
effects of the pain and other symptoms caused by her impairments are “only marginally
credible.” (Id. at 28, 30-31).
Utilizing the services of a VE, the ALJ determined that Plaintiff is not capable of
performing her past relevant work (hereinafter “PRW”) as a stock clerk, which is a heavy, semiskilled occupation. (Id. at 31). However, considering Plaintiff’s RFC and vocational factors
such as age, education, and work experience, in conjunction with the Medical-Vocational
Guidelines and the VE’s testimony, the ALJ determined that Plaintiff is able to perform other
jobs existing in significant numbers in the national economy such as stringing machine tender,
and napper tender, both of which are sedentary, unskilled occupations. (Id. at 31-32). Thus, the
ALJ concluded that Plaintiff is not disabled. (Id.).
1. Medical Evidence
The relevant evidence of record reflects that on June 18, 2007, Plaintiff was admitted to
Vaughn Regional Medical Center in Selma, Alabama, for injuries sustained in an automobile
(Id. at 227).
On that day, she was airlifted to the University of Alabama at
Birmingham (“UAB”) Medical Center where she underwent surgery to amputate her left arm.
(Id. at 233, 304). Following surgery, Plaintiff developed deep vein thrombosis, sepsis, and
pneumonia and required intubation. (Id. at 281-83). She remained in the hospital for two and a
half months and was discharged to Spain Rehabilitation Center on September 6, 2007. (Id. at
284). At the time of her transfer to the rehabilitation center, Plaintiff was breathing well, healing
well, on no antibiotics, eating a regular diet, ambulating with some assistance,10 and her pain was
“well controlled.” (Id. at 284, 350).
At Spain Rehabilitation Center, Plaintiff received physical therapy for two weeks and
“performed well,” “with the exception of having decreased balance which occurred
infrequently.” (Id. at 276). She also “performed well” in occupational therapy, “with the
exception of occasional decreased endurance and strength.” (Id.). Plaintiff “had no significant
complications during her uneventful stay at Spain Rehab” and was discharged on September 18,
On October 3, 2007, Plaintiff saw Dr. Anthony Pitts for a follow up examination. Dr.
Pitts noted that Plaintiff had “good control” over her pain with Lortab and Neurontin and that
her hypertension and glucose intolerance were being medically managed as well. (Id. at 276).
Following a neuropsychological evaluation, Dr. Pitts recommended that Plaintiff continue
Lexapro because of her “flat affect, limited energy, and grief over the recent death of her
mother.” (Id.). Dr. Pitts concluded that Plaintiff was “coping adequately” and had “strong
family support.” (Id.). He instructed Plaintiff to continue her follow up care and to call her
primary care physician with any other medical problems. (Id. at 277).
On November 28, 2007, Plaintiff returned for a follow up examination and was examined
by Dr. Thomas Matthews. He noted that Plaintiff was “[d]oing very well with no complaints”
Dr. Anthony Pitts noted that, at the time of her transfer to the rehabilitation center, Plaintiff
had an unsteady gait and would easily lose her balance. (Tr. at 350).
and “ambulating without difficulty.” (Id. at 274). Dr. Matthews did note that Plaintiff was
experiencing phantom pain in her left arm, which she rated as a six out of ten on an ascending
pain scale, with ten being the worst possible pain. (Id. at 274, 310). Plaintiff reported that her
pain was “improved by medications,” and that she had not refilled her medications (which
included Lasix, Lortab, Neurontin, Lopressor, and Lexapro) for about a month. (Id. at 274). Dr.
Matthews noted, “[s]he reports she has not taken any of these for about a month - apparently she
ran out of meds and did not seek refills.” (Id.). He concluded, “Ms. York is doing very well
after her long complicated ICU stay. She has no complaints today.” (Id.). He continued her
prescriptions for Lortab, Neurontin, and Lexapro and referred her to the Russell Clinic for
management of her hypertension. (Id. at 275).
On December 4, 2007, Plaintiff was examined by Dr. Aaron Sweeney who noted that
Plaintiff complained of “phantom arm pain which she describe[d] as a 5/10 in severity but [she]
has responded well to Neurontin therapy.” (Id. at 344). Dr. Sweeney further noted, “[s]he also
complains of pain in the area of skin graft located in the left thigh that hurts when she sleeps on
it. No other issues per the patient.” (Id.). Dr. Sweeney continued Plaintiff’s medication therapy
for pain and for hypertension and encouraged her to lose weight. (Id. at 345).
On December 19, 2007, Plaintiff had a follow up visit and was seen by Dr. Samuel
Windham who noted that she was “still having phantom pain, but otherwise progressing
appropriately without any symptom of complication or other problems.” (Id. at 273). He noted
that she appeared to be “slight[ly] depressed” and was seeing Dr. Aaron Sweeney for her primary
care from that point forward. (Id.).
Plaintiff saw Dr. Sweeney on February 18, 2008, and complained of phantom arm pain
which had not worsened but had not gotten any better. (Id. at 341). Plaintiff reported that she
had stopped taking Lortab but had to restart it, and that she was taking it twice daily. (Id.).
Plaintiff described the pain as “alternating between dull and sharp” and occasionally of a
“burning quality.” (Id.). Dr. Sweeney noted that Plaintiff was in no acute distress, that she had
gained twenty-five pounds in two months, and that she appeared to be depressed, although she
denied symptoms of depression. (Id.).
On April 22, 2008, Plaintiff returned to Dr. Sweeney for a follow up examination and
reported that her phantom arm pain was more manageable. (Id. at 339). Plaintiff also reported
that she did not wish to have her medications adjusted. Dr. Sweeney noted that “she feels she is
able to tolerate the pain.” (Id.). Plaintiff reported that she stays physically active by playing
with her children at night. (Id.). Dr. Sweeney noted that Plaintiff was in no acute distress, that
her blood pressure was better, and that she had no lower extremity swelling; however, she had
considerable weight gain since the last visit. (Id. at 339-40). Her examination in all other
respects was normal. (Id. at 339). Dr. Sweeney encouraged her to increase her physical activity.
(Id. at 340).
On June 3, 2008, Plaintiff filed her current application for disability benefits. (Id. at 172).
On August 12, 2008, State Agency physician Dr. Robert Heilpern reviewed Plaintiff’s medical
records in connection with her disability application, and he completed a Physical Residual
Functional Capacity Assessment. He concluded that as a result of her amputation, she had no
manipulative functioning (reaching, handling, fingering, feeling) with respect to her left upper
extremity. (Id. at 385). He also concluded that Plaintiff could stand, walk, and sit for six hours
each in an eight-hour workday, could occasionally lift/carry twenty pounds, could frequently
lift/carry ten pounds, could frequently climb stairs, balance, stoop, kneel, and crouch, but could
never climb a ladder or crawl. (Id. at 382-84). He further found that Plaintiff was not limited
with respect to visual, communicative, and environmental limitations, except that she should
avoid exposure to hazardous machinery and heights. (Id. at 385-86). Dr. Heilpern noted that
Plaintiff “has difficulty with all activities as a result of the loss of her [left upper extremity].”
(Id. at 387). He explained further, “[s]he does “chores, etc. but it takes longer.” (Id.).
On that same date, August 12, 2008, State Agency physician Dr. Robert Estock,
completed a Psychiatric Review Technique related to Plaintiff’s diagnosis of depression. (Id. at
368, 371). Dr. Estock concluded that Plaintiff was only “mildly” limited by her depression. (Id.
The medical records indicate that after Plaintiff saw Dr. Sweeney on April 22, 2008, she
did not seek medical treatment from any physician for any reason for approximately seventeen
months. (Id. at 339). On September 15, 2009, almost a year and a half after her previous visit,
Plaintiff returned to Dr. Sweeney for a follow up visit and medication refills. (Id. at 397).
Plaintiff reported that she was having burning sensations related to her left arm very similar to
her prior pain. (Id.). Dr. Sweeny noted that “she has not been taking any of her medications
due to running out, and notably her [blood pressure] is quite high today.” (Id.). He also noted
that she was in no acute distress, that her gait was normal, and that her physical examination
otherwise was normal.
He continued her medication regimen of Chlorthalidone,
Benazepril, Amitriptyline, and Gabapentin.11 (Id. at 398).
On December 4, 2009, Plaintiff returned to Dr. Sweeney for a “hypertension follow-up.”
Chlorthalidone and Benazepril are medications used to treat high blood pressure. See
lineplus/druginfo/meds/a692011.html. Amitriptyline is class of medications called tricyclic
antidepressants and is used to treat the symptoms of depression. See http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a682388.html. Gabapentin is a medication used to relieve pain. See
Dr. Sweeney noted that Plaintiff’s blood pressure was “reasonably well controlled.” (Id. at 400).
Plaintiff reported phantom arm pain, and Dr. Sweeney increased her dosage of Amitriptyline and
Gabapentin. (Id.). Dr. Sweeney noted that Plaintiff was in no acute distress, that her gait was
normal, and that her physical examination was otherwise normal. (Id.). Plaintiff returned on
January 19, 2010, for a routine follow up and medication refill and was seen by Dr. Stephen
Russell, who continued her regular course of treatment. (Id. at 406).
On February 16, 2010, the Agency referred Plaintiff to Dr. Richard S. Reynolds, Ph.D.,
for a consultative psychological examination. (Id. at 391-93). Plaintiff reported to Dr. Reynolds
that she had no past psychiatric treatment but that her mother had passed away in 2007, causing
her to experience “tearfulness, constant worry, low mood, low energy, sleep disturbance,
sadness, and diminished interest.” (Id. at 391). Dr. Reynolds noted that Plaintiff came to the
visit “unassisted”, and that she described her daily activities as waking at 6:30 a.m., going to bed
between 10:00 and 11:00 p.m., sharing the housework, cooking, and grocery shopping with
relatives, managing her own finances, driving, watching TV, and reading. (Id. at 392). She also
reported having friends and going to church. (Id.). Dr. Reynolds found Plaintiff to be alert,
oriented, and cooperative, with no psychotic intrusions, no homicidal ideation, and no suicidal
ideation. (Id.). He noted that although her affect was sad, her memory, judgment, insight, and
decision making abilities were intact, and her thought content and associations were logical and
tight. (Id.). Dr. Reynolds diagnosed Plaintiff with “major depression, mild to moderate.” (Id. at
391). He opined that Plaintiff’s ability to understand, carry out, and remember instructions and
respond appropriately to supervision, co-workers, and work pressure “may be somewhat
impaired” by her “mild” depression. (Id. at 393-94). He further explained in his Medical Source
Statement (Mental) that Plaintiff had no limitation whatsoever with respect to understanding,
remembering, and carrying out simple instructions and only mild limitations with respect to
complex instructions. (Id. at 394). He noted that Plaintiff would need no assistance with any
funds awarded by Social Security. (Id.).
a. Whether the ALJ erred in failing to evaluate
Plaintiff’s obesity in accordance with Social Security
Ruling (“SSR”) 02-1p?
In her brief, Plaintiff claims that the ALJ erred in this case by “fail[ing] to comply with
SSR 02-1p.” (Doc. 14 at 6). Plaintiff essentially argues that, while the ALJ found her morbid
obesity to be a severe impairment, he failed to consider the impact of her obesity on her ability to
work when formulating her RFC. Plaintiff is correct that “[a]n ALJ must consider obesity as an
impairment when evaluating disability.” Sanders v. Astrue, 2011 U.S. Dist. LEXIS 125033, *89, 2011 WL 5118808, *3 (M.D. Ala. October 28, 2011) (citing SSR 02-1p)12 (“‘[W]e consider
obesity to be a medically determinable impairment and remind adjudicators to consider its
effects when evaluating disability.’”). However, “while the ALJ has the responsibility to make a
determination on Plaintiff’s RFC, it is Plaintiff who bears the burden of proving her RFC, i.e.,
Plaintiff must establish that her obesity results in functional limitations and that she was
‘disabled’ under the Social Security Act.” Sanders, 2011 U.S. Dist. LEXIS 125033 at *9 (citing
SSR 02-1p provides, in part, that “[o]besity can cause limitation of function,” in areas such as
“sitting, standing, walking, lifting, carrying, pushing, . . . pulling, . . . climbing, balance,
stooping, . . . crouching[,] ability to manipulate . . . the hands and fingers[,] [and] ability to
tolerate extreme heat, humidity, or hazards. . . .” 2002 SSR LEXIS 1, *16, 2002 WL 34686281,
*6. This ruling directs the ALJ to assess “the effect obesity has upon the individual’s ability to
perform routine movement and necessary physical activity within the work environment” “on a
regular and continuing basis” and explain how he reached his conclusions on whether obesity
caused any physical or mental limitations. 2002 SSR LEXIS 1 at *16-18.
20 C.F.R. § 404.1512(a) & (c) (2011) (claimant must provide medical evidence showing that she
has an impairment and how severe it is during the time that she says that she is disabled).
In the present case, the ALJ found Plaintiff’s obesity to be a severe impairment, and
although he did not specifically reference SSR 02-1p or discuss the degree to which he attributed
any additional limitation to Plaintiff due to her obesity, there is no question that he considered
Plaintiff’s obesity in his disability determination, as he repeatedly referenced her weight when
setting forth the bases for his determination that she was not disabled. (Id. at 25-29). Indeed, the
ALJ referred to Plaintiff’s obesity or weight no less than six times in his decision. (Id.). He
ultimately concluded, however, that the medical evidence did not support a finding that her
obesity (alone or in combination with any other impairment) resulted in a disabling medical
Based upon a careful review of the record, the Court agrees with the ALJ that Plaintiff
has not established that her obesity caused significant limitations on her ability to work. Indeed,
the record is devoid of any such evidence. Therefore, the Court finds that the ALJ properly
considered the issue of Plaintiff’s obesity in making his disability determination and that the
medical evidence does not support a finding that Plaintiff’s obesity resulted in functional
limitations that prevent her from performing a reduced range of sedentary work. See Gary v.
Astrue, 2009 U.S. Dist. LEXIS 87046, *7-8, 2009 WL 3063318, *3 (M.D. Ala. Sept. 22, 2009)
(ALJ’s failure to mention obesity or explain whether claimant’s obesity caused any physical or
mental limitations did not provide basis for relief where the claimant identified no evidence in
the record to support her position that the condition caused significant limitations on her ability
to work); Vickers v. Astrue, 2009 U.S. Dist. LEXIS 128327, *42-43, 2009 WL 722273, *14
(N.D. Fla. Feb. 6, 2009), adopted by 2009 U.S. Dist. LEXIS 21704 (N.D. Fla. March 18, 2009)
(remand for failure to mention obesity is not required where the claimant does not show how his
obesity impaired his ability to work). Therefore, Plaintiff’s claim is without merit.
In addition to the Court’s finding that the ALJ did not err in his consideration of
Plaintiff’s obesity, the Court further finds that the substantial evidence in this case supports the
ALJ’s RFC assessment that Plaintiff can perform a range of sedentary work. (Id. at 27). As
discussed above, Plaintiff’s medical records show that by September 18, 2007, her amputation
site had healed well, and she had successfully completed her rehabilitation at the Spain
Rehabilitation Center. (Id. at 276, 279). Her treating physician, Dr. Pitts, noted that she
“performed well” in physical and occupational therapy and “had no significant complications
during her uneventful stay” at the rehabilitation center. (Id. at 276). In the months and years
following her discharge, Plaintiff’s treating physicians consistently documented that she was
“doing very well,” that she ambulated without difficultly, that her gait was normal, and that she
had “good control” over her pain.13 (Id. at 274, 276, 339, 344, 397, 400). Her treatment records
reflect that she actually went months (even as long as a year and a half) without pain medication
and without seeing a physician. (Id. at 274, 397). Plaintiff’s treatment records further reflect
that she had only mild to moderate depression 14 and that her high blood pressure was
In April 2008, Plaintiff reported to Dr. Sweeney that she did not need to have her pain
medications adjusted because she could tolerate the pain. (Tr. at 339).
Consultative psychologist, Dr. Reynolds, found Plaintiff’s depression to be no more than “mild
to moderate” and, in a separate Medical Source Statement (Mental) form, noted that Plaintiff had
no limitations with respect to understanding, remembering, carrying out, and making judgments
related to simple instructions and only mild limitations related to complex instructions. (Id. at
391, 394). He opined that Plaintiff’s ability to understand, carry out, and remember instructions
and respond appropriately to supervision, co-workers and work pressure “may be somewhat
impaired.” (Tr. at 393) (emphasis added). Likewise, State Agency psychiatrist, Dr. Estock,
completed a Psychiatric Review Technique and concluded that Plaintiff was only “mildly”
limited by her depression. (Id. at 378). Plaintiff also testified at her first administrative hearing
“reasonably well controlled” with medication. (Id. at 273, 378, 394, 400). This evidence
supports the ALJ’s determination that Plaintiff could perform a reduced range of sedentary work.
Moreover, State Agency physician, Dr. Heilpern, found in his Physical RFC Assessment
that despite the complete loss of use of Plaintiff’s left (non-dominant) arm, which also precluded
her from crawling, climbing a ladder, rope, or scaffold, or working around hazardous machinery
and heights, Plaintiff could still stand, walk, and sit for six hours each in an eight-hour workday,
occasionally lift/carry twenty pounds with her right upper extremity, frequently lift/carry ten
pounds, and frequently climb stairs, balance, stoop, kneel, and crouch. (Id. at 382, 384-86). Dr.
Heilpern further opined that Plaintiff had no limitations with respect to visual, communicative,
and environmental functioning. (Id. at 385-86). This evidence further supports the ALJ’s
determination that Plaintiff could perform a reduced range of sedentary work.15
In addition, Plaintiff’s own accounts of her activities of daily living reflect that she lives
alone with her four children, ages eleven, four, three, and one and that she is their primary
caregiver. (Id. at 185, 417-19). Although there are tasks that she can no longer perform without
assistance (i.e., tie shoes, button clothing, pick up her children, put on certain items of clothing,
comb her hair, sweep, or open jars), she can take a shower, “put on [her] clothes,” change
diapers, help dress her children, help bathe her children, play with her children, prepare simple
meals, do some household chores, vacuum, dust, and fold some clothes. (Id. at 185-88, 418-19,
In addition, she goes out alone, drives, shops, attends church, goes to doctor’s
on November 20, 2009, that she has never sought treatment from a psychologist or psychiatrist
and that no physician has ever recommended that she do so. (Id. at 65).
The ALJ’s determination is further supported by the Vocational Expert’s testimony that even
with Plaintiff’s limitations, she could do “simple machine tending” such as stringing machine
tender and napper tender, both of which are sedentary and unskilled. (Tr. at 442-43).
appointments, gets her medications refilled, and takes care of her finances. (Id. at 188-89, 42122, 428).
This evidence also supports the ALJ’s assessment that Plaintiff is capable of
performing a reduced range of sedentary work.16
While the Court does not question the obvious impairment caused by Plaintiff’s
amputated left arm, the substantial evidence in this case supports the ALJ’s RFC assessment that,
despite her impairments, Plaintiff can still perform a range of sedentary work. Therefore, she is
not disabled. See Chaverst v. Astrue, 2012 U.S. Dist. LEXIS 155852, *12, 2012 WL 5379063,
*1 (N.D. Ala. Oct. 31, 2012) (ALJ did not err in finding that claimant had the RFC to perform
simple light work despite the loss of his dominant right arm, noting that the medical evidence
showed that claimant had progressed well following his surgery and generally functioned
without taking prescription pain medication).
b. Whether the ALJ erred in rejecting Plaintiff’s
subjective complaints of pain?
Plaintiff also claims that the ALJ erred in improperly evaluating her testimony with
regard to the severity of her pain. (Doc. 14 at 9). At her hearing on July 15, 2010, Plaintiff
The Court also rejects Plaintiff’s argument that the ALJ committed reversible error by relying
on the fact that she became pregnant and gave birth to her fourth child after her accident as
support for his disability determination. (Doc. 14 at 11). While the ALJ did note that Plaintiff
became pregnant and gave birth to her youngest child after her accident, he did so in the context
of her activities of daily living, which included playing with her children and driving. (Tr. at
31). While the Court agrees with Plaintiff that the relevance of those facts is tenuous at best, the
remaining substantial evidence in this case supports the ALJ’s determination that Plaintiff is not
disabled. Therefore, Plaintiff’s argument that the ALJ’s misplaced reliance on those facts
constitutes reversible error is without merit. See Louis v. Commissioner of Soc. Sec., 2012 U.S.
Dist. LEXIS 62497, *2-3, 2012 WL 1579337, *1 (W.D. Mich. May 4, 2012) (ALJ’s comment
that claimant was “capable of becoming pregnant . . . [and] providing the majority of her own
care and that of her children” did not constitute reversible error inasmuch as the ALJ “did not
deny Plaintiff’s claim based on her decision to become pregnant but because the evidence
showed that she was not disabled.”).
maintained that she cannot work because she has phantom pain (a burning and aching pain) in
the remainder of her left arm every single day that “goes and comes,” that without medication,
the pain is an eight on an ascending pain scale of one to ten, that with medication, the pain is a
six or seven out of ten, that she has to take the pain medication three times a day, that the
medication makes her drowsy, that her hypertension causes her to have headaches two or three
times a week that last for about thirty minutes, and that she can only sit for about forty-five
minutes without feeling a sharp pain down her back side. (Tr. at 420, 424-27). The ALJ found
this testimony to be only marginally credible. (Id. at 30). The Court agrees.
The standard by which Plaintiff’s complaints of pain are to be evaluated requires “(1)
evidence of an underlying medical condition and either (2) objective medical evidence that
confirms the severity of the alleged pain arising from that condition or (3) that the objectively
determined medical condition is of such a severity that it can be reasonably expected to give rise
to the alleged pain.” Hubbard v. Commissioner of Soc. Sec., 348 Fed. Appx. 551, 554 (11th Cir.
2009) (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). “This standard can be
satisfied by a claimant’s subjective testimony if that testimony is supported by medical
evidence.” Id. (citing Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)). The Eleventh
Circuit has also held that the determination of whether objective medical impairments could
reasonably be expected to produce the pain was a factual question to be made by the Secretary
and, therefore, “subject only to limited review in the courts to ensure that the finding is supported
by substantial evidence.” Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir. 1985), vacated on
other grounds and reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986).
Furthermore, the Social Security regulations specifically state:
[S]tatements about your pain or other symptoms will not alone
establish that you are disabled; there must be medical signs and
laboratory findings which show that you have a medical
impairment(s) which could reasonably be expected to produce the
pain or other symptoms alleged and which, when considered with
all of the other evidence (including statements about the intensity
and persistence of your pain or other symptoms which may
reasonably be accepted as consistent with the medical signs and
laboratory findings), would lead to a conclusion that you are
20 C.F.R. 404.1529(a) (2010).
As discussed above, the medical evidence of record shows, as the ALJ found, that despite
Plaintiff’s claims of debilitating phantom arm pain, hypertension headaches, and pain down her
back side from sitting, Plaintiff has repeatedly gone months and even as long as a year and a half
without taking her prescribed pain medications and high blood pressure medications or seeking
medical treatment for pain or for any other condition.
(Id. at 274, 397). On November 28,
2007, Plaintiff described her pain level as six out of ten in severity, and on December 4, 2007,
Dr. Sweeney noted that Plaintiff was responding well to her medication therapy and that her pain
level was a five out of ten in severity. (Id. at 310, 344). On April 22, 2008, Plaintiff told Dr.
Sweeney that she did not need to have her pain medications adjusted because she could tolerate
the pain. (Id. at 339). In addition, on December 4, 2009, Dr. Sweeney noted that Plaintiff’s high
blood pressure (which she testified causes her headaches two or three times a week) was
“reasonably well controlled” with medication. (Id. at 400). Plaintiff’s treating physicians have
regularly noted that she presented in “no acute distress,” that she walked with a normal gait, that
she was “ambulating without difficulty,” and that she was “[d]oing very well with no
complaints.” (Id. at 274, 339, 341, 397, 400). This evidence, particularly Plaintiff’s failure to
take her prescription pain medications, combined with the evidence of Plaintiff’s activities of
daily living recounted above, undermines Plaintiff’s credibility and her claims that her pain
makes it impossible for her to work.
“[C]redibility determinations are the province of the ALJ,” Moore v. Barnhart, 405 F.3d
1208, 1212 (11th Cir. 2005), and a reviewing court will not disturb a clearly articulated
credibility finding with substantial supporting evidence in the record. Kalishek v. Commissioner
of Soc. Sec., 470 Fed. Appx. 868, 871 (11th Cir. 2012). Based upon a careful review of all of the
evidence in the record, the Court finds that the ALJ properly evaluated Plaintiff’s credibility and
clearly articulated his finding with regard to Plaintiff’s pain, and the ALJ’s credibility finding is
supported by substantial evidence in the record. Therefore, Plaintiff’s claim that the ALJ erred
in evaluating his testimony with regard to the severity of her pain is without merit.
For the reasons set forth herein, 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 disability insurance benefits and
supplemental security income be AFFIRMED.
DONE this 28th day of March, 2013.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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