Thomas v. Colvin
MEMORANDUM OPINION AND ORDER that the Commissioner's decision be AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Katherine P. Nelson on 9/11/17. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NANCY A. BERRYHILL1, Acting
Social Security Commissioner,
) CIVIL ACTION NO. 2:16-00581-N
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g) Plaintiff Eleanor Thomas.
(“Thomas” or “Plaintiff”) seeks judicial review of an adverse social security
ruling denying disability insurance benefits and supplemental security
(Docs. 1, 13).
With the consent of the parties, the Court has
designated the undersigned Magistrate Judge to conduct all proceedings and
order the entry of judgment in this civil action, in accordance with 28 U.S.C. §
636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See
Docs. 16, 18). The parties requested that oral argument be waived, and their
request was granted. (Docs. 17, 19). After considering the administrative
record and the memoranda of the parties, the Court finds that the decision of
the Commissioner due to be AFFIRMED and this action DISMISSED
1 Nancy A. Berryhill has replaced Carolyn Colvin and is now the acting Social
Plaintiff protectively applied for disability insurance benefits and
supplemental security income on April 29, 2013. (Doc. 13 at 1; Tr. 159-168,
194). Plaintiff alleged a disability onset date of January 1, 2012. (Doc. 12,
Fact Sheet; Doc. 14 at 1). Her application was initially denied on August 21,
2013, after which she requested a hearing.
(Doc. 13 at 1; Tr. 103-114).
Plaintiff attended a hearing before an Administrative Law Judge (“ALJ”) on
February 23, 2015, and the ALJ rendered an unfavorable decision on May 5,
2015. (Doc. 13 at 1; Tr. at 17-76).
At the time of the administrative hearing, Plaintiff was fifty eight
years old with a high school diploma, and previous work history as a
babysitter and maid.
Plaintiff alleges she is disabled due to
diabetes, neuropathy, and hypertension. (Id.) On May 5, 2015, an ALJ
denied benefits after determining that Plaintiff was capable of performing
medium work activity and could return to her previous job as a maid. (Tr. at
26-30). Plaintiff requested review of the hearing decision, but the Appeals
Council denied the request on September 29, 2016. (Tr. at 1-5).
Plaintiff claims that the ALJ erred in finding Plaintiff could perform
medium work and that Plaintiff should be found disabled under Grid Rule
202.04 and/or 201.01. (Doc. 13 at 1). Within Plaintiff’s first contention of
error is also a claim that the ALJ failed to properly develop the record and/or
improperly substituted his own opinion as to Plaintiff’s limitations. (Id. at
Defendant has responded to—and denies—these claims.
STANDARD OF REVIEW
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on
proper legal standards. Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). However, the
Court “ ‘may not decide the facts anew, reweigh the evidence, or substitute
our judgment for that of the [Commissioner].’ ”
Id. (quoting Phillips v.
Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))).
“‘Even if the evidence preponderates against the [Commissioner]’s factual
findings, [the Court] must affirm if the decision reached is supported by
substantial evidence.’ ”
Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d
1253, 1260 (11th Cir. 2007) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The Court] must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial
evidence[.]” Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted).
See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam)
(“We are neither to conduct a de novo proceeding, nor to rubber stamp the
administrative decisions that come before us. Rather, our function is to
ensure that the decision was based on a reasonable and consistently applied
standard, and was carefully considered in light of all the relevant facts.”). “In
determining whether substantial evidence exists, [a court] must…tak[e] into
account evidence favorable as well as unfavorable to the [Commissioner’s]
decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, the “substantial evidence” “standard of review applies only to
findings of fact.
No similar presumption of validity attaches to the
[Commissioner]’s conclusions of law, including determination of the proper
standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d
1050, 1053 (11th Cir. 1986) (quotation omitted).
Accord, e.g., Wiggins v.
Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for
appeals from the administrative denials of Social Security benefits dictates
that ‘(t)he findings of the Secretary as to any fact, if supported by substantial
evidence, shall be conclusive ....’ 42 U.S.C.A. s 405(g) … As is plain from the
statutory language, this deferential standard of review is applicable only to
findings of fact made by the Secretary, and it is well established that no
similar presumption of validity attaches to the Secretary’s conclusions of law,
including determination of the proper standards to be applied in reviewing
claims.” (some quotation marks omitted)).
This Court “conduct[s] ‘an
exacting examination’ of these factors.” Miles v. Chater, 84 F.3d 1397, 1400
(11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)). “‘The [Commissioner]’s failure to apply the correct
law or to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted mandates
reversal.’” Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991)). Accord Keeton v. Dep't of Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In sum, courts “review the Commissioner’s factual findings with
deference and the Commissioner’s legal conclusions with close scrutiny.”
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) (“In Social
Security appeals, we review de novo the legal principles upon which the
Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131 (11th
However, we review the resulting decision only to determine
whether it is supported by substantial evidence. Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004).”).
Eligibility for DIB and SSI requires that the claimant be
disabled. 42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is
disabled if she is unable “to engage in any substantial gainful
activity by reason of a medically determinable physical or
mental impairment ... 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).
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015)
(per curiam) (unpublished).2
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is
disabled: (1) whether the claimant is currently engaged in
substantial gainful activity; (2) whether the claimant has a
severe impairment or combination of impairments; (3) whether
the impairment meets or equals the severity of the specified
impairments in the Listing of Impairments; (4) based on a
residual functional capacity (“RFC”) assessment, whether the
claimant can perform any of his or her past relevant work
despite the impairment; and (5) whether there are significant
numbers of jobs in the national economy that the claimant can
perform given the claimant's RFC, age, education, and work
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v),
416.920(a)(4)(i)-(v); Phillips, 357 F.3d at 1237-39).3
“These regulations place a very heavy burden on the claimant to
demonstrate both a qualifying disability and an inability to perform past
relevant work.” Moore, 405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d
1090, 1093 (11th Cir. 1985)).
“In determining whether the claimant has
satisfied this initial burden, the examiner must consider four factors: (1)
objective medical facts or clinical findings; (2) the diagnoses of examining
2 In this Circuit, “[u]npublished opinions are not considered binding
precedent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2.
See also Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir.
2015) (per curiam) (“Cases printed in the Federal Appendix are cited as
The Court will hereinafter use “Step One,” “Step Two,” etc. when
referencing individual steps of this five-step sequential evaluation.
physicians; (3) evidence of pain; and (4) the claimant’s age, education, and
work history.” Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986) (per
curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983) (per
curiam)). “These factors must be considered both singly and in combination.
Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant
proves that he or she has a qualifying disability and cannot do his or her past
relevant work, it then becomes the Commissioner’s burden, at Step Five, to
prove that the claimant is capable—given his or her age, education, and work
history—of engaging in another kind of substantial gainful employment that
exists in the national economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
although the “claimant bears the burden of demonstrating the inability to
return to [his or] her past relevant work, the Commissioner of Social Security
has an obligation to develop a full and fair record.” Shnorr v. Bowen, 816
F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272,
1276 (11th Cir. 2003) (per curiam) (“It is well-established that the ALJ has a
basic duty to develop a full and fair record. Nevertheless, the claimant bears
the burden of proving that he is disabled, and, consequently, he is responsible
for producing evidence in support of his claim.” (citations omitted)). “This is
an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts. In determining whether a
claimant is disabled, the ALJ must consider the evidence as a whole.” Henry
v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam)
(citation and quotation omitted).
Where, as here, the ALJ denied benefits and the Appeals Council
denied review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the
[Appeals Council] has denied review, [the Court] will look only to the
evidence actually presented to the ALJ in determining whether the ALJ’s
decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320,
1323 (11th Cir. 1998). If the applicant attacks only the ALJ’s decision, the
Court may not consider evidence that was presented to the Appeals Council
but not to the ALJ. See id. at 1324.
At Step Two, the ALJ found that Plaintiff has severe impairments of
diabetes mellitus and hypertension.4 (Tr. at 23).
At Step Three, the ALJ
found that “[t]he claimant does not have an impairment or combination of
impairments that meets or equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” (Tr. at
The ALJ then determined that “[t]he claimant has the residual
4 The ALJ also concluded that Plaintiff has non-severe impairments of
headaches and chronic sinusitis and anxiety and depression. (Tr. at 23-26).
functional capacity to perform medium work as defined in 20 CFR
404.1567(c) and 416967(c) except for no unrestricted heights; no driving and
At Steps Four and Five the ALJ found that
plaintiff had no past relevant work at the level of substantial gainful activity,
there were a significant number of other jobs in the national
economy which she was able to perform (Tr. 30-31). As a result, the ALJ
concluded that Plaintiff was not disabled.
Plaintiff asserts that the ALJ’s determination was in error because
“[t]he evidence of record before the ALJ contained only raw medical evidence
…[and] [w]hile a consultative exam was ordered, the physician provided no
analysis of the raw medical findings, no diagnosis, and no assessment of Ms.
Thomas’ functional abilities.” (Doc. 13 at 6). Therefore, Plaintiff contends
that “[b]y failing to seek or obtain the opinion of an examining physician, the
ALJ failed to fully and fairly develop the record” and “[b]ecause there were no
assessments in the file, the ALJ had to fill the void himself” which resulted in
an opinion that is “not supported by the opinion of any medical source.” (Id.
Defendant asserts that Plaintiff failed to point to any deficiencies
within the record which necessitated the ordering of a consultative exam and
that the ALJ properly assessed Plaintiff’s RFC based on substantial evidence.
(Doc. 14 at 13). The undersigned will address whether the ALJ erred in
failing to develop the record and whether the ALJ’s RFC was based on
substantial evidence in turn.
Failure to Develop the Record
“It is well-established that the ALJ has a basic duty to develop a full
and fair record. 20 C.F.R. § 416.912(d). “Nevertheless, the claimant bears the
burden of proving that he is disabled, and, consequently, he is responsible for
producing evidence in support of his claim.” Ellison, 355 F.3d at 1276; see
also 20 C.F.R. § 416.912(a) (stating that “[claimant] must furnish medical
and other evidence that we can use to reach conclusions about your medical
impairment(s)”); 20 C.F.R. § 416.912(c) (stating “[y]our responsibility. You
must provide medical evidence showing that you have an impairment(s) and
how severe it is during the time you say you are disabled”). In fulfilling the
duty to conduct a full and fair inquiry, the ALJ is not required to order a
consultative examination unless the record establishes that such is necessary
to enable the ALJ to render a decision. River v. Astrue, 901 F. Supp. 2d 1317,
1327-28 (S.D. Ala. 2012); see also Ingram, 496 F.3d at 1269. (“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.”). It is only where a consultative examination is necessary
for the ALJ to make a decision due to some conflict, ambiguity, or other
insufficiency in the medical evidence that the regulations require an ALJ to
order a consultative examination. River, 901 F. Supp. 2d at 1328; see also 20
C.F.R. § 404.1519a(a)(2) (“When we purchase a consultative examination, we
will use the report from the consultative examination to try to resolve a
conflict or ambiguity if one exists. We will also use a consultative
examination to secure needed medical evidence the file does not contain such
as clinical findings, laboratory tests, a diagnosis or prognosis necessary for
decision.”), 20 C.F.R. § 404.1519a(b) (“A consultative examination may be
purchased when the evidence as a whole, both medical and nonmedical, is not
sufficient to support a decision on your claim.”); see also Hawkins v. Chater,
113 F.3d 1162, 1166 (10th Cir. 1997) (“The Secretary has broad latitude in
ordering consultative examinations.”).
Plaintiff summarily argues that a lack of medical assessment in
Plaintiff’s file triggered the ALJ’s duty to further develop the record prior to
determining Plaintiff’s RFC.
However, Plaintiff’s argument is misplaced
because a lack of physical assessment does not equate to a lack of sufficient
medical evidence on which the ALJ could rely to make an informed decision.
See Manasco v. Colvin, 2014 WL 1513173 at * 3 (N.D. Ala. 2014) (“Developing
a full and fair record, however, does not require an ALJ to secure a medical
source opinion regarding the claimant's RFC.”) citing to 20 C.F.R. §§
404.1546(c), 416.946(c); Langley v. Astrue, 777 F. Supp. 2d 1250, 1261 (N.D.
Ala. 2011) (“The failure to include [an RFC assessment from a medical
source] at the State agency level does not render the ALJ's RFC assessment
invalid.”); Green v. Soc. Sec. Admin, 223 F. App'x 915, 923–24 (11th Cir.
2007). “Because the overall RFC determination is ‘based on all the relevant
evidence in [the claimant's] case record,’ 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1) (emphasis added), the ALJ can fulfill his responsibility to
develop the record even without a medical source opinion. Thus, as long as
the ALJ's determination is based on substantial evidence, the absence of an
RFC assessment by a medical source will not render the ALJ's RFC
determination invalid.” Manasco at *3. (citing to Green, 223 F. App'x at 924.)
In Plaintiff’s case, the medical evidence as a whole, which Plaintiff
does not dispute that the ALJ considered in its entirety, contains several
references to Plaintiff’s physical limitations and/or lack thereof. Namely, as
pointed out by Defendant, Plaintiff’s VA medical records5 indicated that: on
April 25, 2012, Plaintiff had zero pain, a negative foot exam, steady gait, and
no edema (Doc. 14 at 2; Tr. 292-98, 580, 96); in November, 2012, Plaintiff had
zero pain, steady gait, and no edema. (Doc. 14 at 2-3; Tr. 283, 288); and in
April 2013, Plaintiff’s review of symptoms remained unchanged (Doc. 14 at 3;
Tr. at 276-77). Further, Plaintiff underwent a consultative exam by Dr. Judy
Travis, M.D., on July 18, 2013, which Plaintiff describes as failing to provide
any functional assessment. (Doc. 13 at 3). However, Dr. Travis did perform a
physical exam which the ALJ summarized as follows:
In July 2013, Judy Cooke Travis, M.D. performed a consultative
physical examination of the claimant. She complained of diabetes
mellitus, chronic sinusitis, hypertension, and muscle spasms around
her left eye and brow. Her blood pressure was 110/70. Her heart had
a regular rate and rhythm, with no murmurs, gallops, or rubs. Her
5 Plaintiff receives her medical treatment at the VA Medical Center and has
no primary care physician or treating physician. (Doc. 13 at 5).
back and spine had normal curvature and range of motion. Her upper
extremities had normal range of motion and 5/5 grip bilaterally, with
normal dexterity in both hands. Her lower extremities had a normal
appearance and range of motion bilaterally with no evidence of
muscular atrophy. She had normal sensation to touch and 5/5 motor
strength in all extremities.
Dr. Travis assess benign essential
hypertension and diabetes, uncomplicated type 1, uncontrolled. She
also provided a problem list of labile insulin dependent diabetes with
neuropathy, hypertension, anxiety, and chronic sinusitis (Ex. 4F). Dr.
Travis’s findings and diagnoses are generally consistent with the
medical evidence of record as a whole, which shows conservative
treatment for diabetes mellitus and hypertension, and with the
claimant’s descriptions of activities of daily living.
(Tr. at 28). The ALJ also noted that in 2014, Plaintiff continued to struggle
to control her diabetes, but reported walking 20 or 30 minutes most days with
a friend. (Tr. at 29). At that time, Plaintiff was assessed with mild and
improving neuropathy. (Id.)
Plaintiff does not refute the findings in the medical records referred to
above, nor does she point to additional records which contradict these
records, such that confusion or contradiction necessitated a need for further
As a result, the undersigned finds that the medical record
contained sufficient evidence on which the ALJ could make an informed
decision, such that the ALJ did not err by failing to order a consultative exam
that included a physical assessment of Plaintiff.
Because the ALJ did not error by failing to further develop the record,
the inquiry becomes whether the record contained substantial evidence to
support the ALJ’s RFC.
“The RFC assessment is a function-by-function
assessment based upon all of the relevant evidence of an individual’s ability
to do work-related activities.”
Social Security Ruling 96-8p, Titles II and
XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL
374184, *3. It involves determining the claimant's ability to do work in spite
of his or her impairments in consideration of all relevant evidence. Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The Court notes that the
ALJ is responsible for determining a claimant’s RFC. 20 C.F.R. § 416.946
(2015); see also Robinson v. Astrue, 3605 F. App'x 993, 999 (11th Cir. 2010)
(stating that “the task of determining a claimant's residual functional
capacity and ability to work is within the province of the ALJ, not of
doctors”). That decision cannot be based on “sit and squirm” jurisprudence.
Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984). However, the Court
also notes that the social security regulations state that Plaintiff is
responsible for providing evidence from which the ALJ can make an RFC
determination. 20 C.F.R. § 416.945(a)(3).
While recognizing that an ALJ has the authority to determine an RFC,
Plaintiff contends that in her case, the ALJ was “simply not qualified to
formulate a residual functional capacity on his own” because the ALJ did not
simply find that Plaintiff could perform a full range of medium work, but
rather, he added specific limitations, which was a “detailed analysis of
medical records [that] is not within his purview [because] such specificity can
only be reached by a physician.” (Doc. 13 at 7). In support of this argument,
Plaintiff states “[t]here is no evidence in the record that Ms. Thomas is
capable of performing medium work. She has never performed medium work
in the past.” (Doc. 13 at 8). Plaintiff’s argument is not persuasive.
Prior to determining Plaintiff’s RFC, the ALJ considered Plaintiff’s
impairments of anxiety and depression and found that they were not severe
because they did not cause more than minimal limitations to Plaintiff’s
ability to perform basic mental work activities. (Tr. at 23). In reaching his
RFC determination, the ALJ noted Plaintiff’s alleged disabling conditions,
symptoms, and limitations as follows: diabetes mellitus, hypertension, vision
loss, high cholesterol, and iron deficiency. (Tr. at 27). The ALJ summarized
Plaintiff’s complaints as follows:
She reported joint pain in her left arm. She stated she could lift
about five pounds and walk about a mile before resting for a few
minutes. She had difficulty with lifting, squatting, bending, standing,
and reaching. She has difficulty with hearing and seeing, particularly
at night. Consequently, she did not drive at night. However, she was
able to cook, clean, and do laundry on a daily basis, both for herself
and for her employers (Ex. 5E/6-8). At the hearing she testified that
she had neuropathy that caused pain in her lower extremities that
rated as 8 out of 10 and made it difficult for her to walk. She stated
that she could stand for five minutes and sit for 20 minutes. She had
headaches and sinus infections that made it difficult for her to focus.
Her hypertension and high blood sugar caused blurred vision.
(Tr. at 27). The ALJ then summarized Plaintiff’s medical records and noted
that Plaintiff had a history of diabetes dating back to 2002 which Plaintiff
has struggled to control with medication. (Tr. at 28-29). The ALJ further
stated as follows:
Although the claimant has underlying impairments capable of
resulting in some pain and limitations, her allegations as to the
intensity, frequency or level of severity is not completely credible. As
stated above, the claimant has diabetes mellitus that has been poorly
controlled at times, but it has not resulted in retinopathy or
nephropathy. Although the claimant testified that neuropathy caused
her extreme pain, treatment records indicate that it was mild and
improving (Ex. 9F/11). Her hypertension has been well controlled by
medication, and has not resulted in cardiovascular accidents, end
organ damage or other disabling abnormalities. Her allegations that
she had difficulty with sitting, standing, and walking appear
inconsistent with her reports that she continued to work part-time as a
maid, volunteer at her church, and walk 20-30 minutes a day for
exercise. The claimant’s reported activities of daily living show that
she is capable of the residual functional capacity provided.
The above residual functional capacity assessment is supported
by the record as a whole, including the claimant’s testimony as to her
ability to perform activities of daily living. The claimant has some
limitations due to her impairments, however, the impact of the
claimant’s symptoms does not wholly compromise the claimant’s
ability to function independently, appropriately, or effectively on a
sustained basis in a workplace setting. The intensity and persistence
of symptoms as alleged by the claimant are not consistent with the
medical record signs and laboratory findings or medical record. Her
limitations are addresses by limiting her to medium exertion with no
exposure to unrestricted heights and only occasional climbing. Her
concerns, with vision, although unsupported by the multiple vision
examinations at 1F, 4F, and 8F, are addressed by limiting her to no
(Tr. at 29-30).
As an initial matter, Plaintiff has not pointed to any medical evidence
that supports her contention that she is unable to perform a limited range of
medium work, as determined by the ALJ. Instead, Plaintiff points to her
subjective testimony as to her limitations and the fact that Plaintiff has
never before performed medium work. However, the ALJ considered
Plaintiff’s testimony and specifically articulated the reasons for finding it to
be less than credible. Additionally, the fact that Plaintiff has never worked
at the medium level is not evidence that she was or is incapable of doing so.
Lastly, despite Plaintiff’s assertions that the ALJ went beyond his purview by
applying restrictions to Plaintiff’s RFC, there is no indication in the record
that these restrictions were so complex that they required a medical opinion
to ascertain. Moreover, as the ALJ articulated, the subject restrictions were
based, in part, on Plaintiff’s non-credible testimony and her medically
unsupported claims relating to her vision. (Tr. at 30). As a result, Plaintiff’s
contention that the ALJ’s assessment was beyond the scope of what the ALJ
is allowed to do is without merit.
As discussed above, Plaintiff’s medical records contained sufficient
medical information on which the ALJ could rely in reaching his
determination as to Plaintiff’s RFC. Further, the ALJ properly articulated
his reasons for not finding Plaintiff’s testimony as to her physical limitations
to be credible. Moreover, it is evident that the ALJ considered the medical
records relating to Plaintiff’s impairments, which did not contain any
physical restrictions, in conjunction with her testimony that she continued to
work part time as a maid in determining Plaintiff’s RFC and then further
restricted Plaintiff based on her subjective visual concerns, even though the
ALJ did not find that the medical records substantiated those concerns. (Tr.
As a result, the undersigned finds that despite Plaintiff’s
assertions to the contrary, there was substantial evidence on which the ALJ
relied in determining Plaintiff’s RFC. Accordingly, the ALJ did not err.
Grid Rule 202.04 and/or 201.01
Plaintiff additionally argues that she is disabled under Grid Rule
202.04 and/or 201.01. (Doc. 13 at 8-9). However, Plaintiff’s contention is
based entirely on her assertion that the ALJ’s RFC was not supported by
Because the undersigned has determined that the
ALJ’s RFC determination was not in error, Plaintiff’s argument that she is
disabled under the subject grid rules is equally without merit.
Plaintiff has raised two claims in bringing this action and both are
without merit. Upon consideration of the entire record, the Court finds "such
relevant evidence as a reasonable mind might accept as adequate to support
a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Therefore, it
is ORDERED that the Commissioner’s decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and that this action
be DISMISSED. Final judgment will be entered separately.
DONE and ORDERED this the 11th day of September 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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