OLSON v. COLVIN

Filing 15

ORDER affirming the determination of the Social Security Commissioner. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 5/10/2017. (efw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
THEODORE OLSON,
Plaintiff,
v.
NANCY A BERRYHILL,
Commissioner of Social Security,
Defendant.

:
:
:
:
:
:
:
:
:
:

CASE NO. 3:16-CV-57-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, denied Plaintiff’s application for disability insurance
benefits and Supplemental Security Income (SSI), finding that he is not disabled within
the meaning of the Social Security Act and Regulations. Plaintiff contends that the
Commissioner’s decision was in error and seeks review under the relevant provisions of
42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). All administrative remedies have been
exhausted. Both parties filed their written consents for all proceedings to be conducted
by the United States Magistrate Judge, including the entry of a final judgment directly
appealable to the Eleventh Circuit Court of Appeals pursuant to 28 U.S.C. § 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner’s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards
were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam).

“Substantial evidence is something more than a mere scintilla, but less than a
preponderance. If the Commissioner's decision is supported by substantial evidence, this
court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). The court’s role in
reviewing claims brought under the Social Security Act is a narrow one. The court may
neither decide facts, re-weigh evidence, nor substitute its judgment for that of the
Commissioner.1 Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). It must,
however, decide if the Commissioner applied the proper standards in reaching a decision.
Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam). The court must
scrutinize the entire record to determine the reasonableness of the Commissioner’s
factual findings.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

However, even if the evidence preponderates against the Commissioner’s decision, it
must be affirmed if substantial evidence supports it. Id.
The Plaintiff bears the initial burden of proving that he is unable to perform his
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). The Plaintiff’s burden
is a heavy one and is so stringent that it has been described as bordering on the
unrealistic. Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981).2 A Plaintiff
seeking Social Security disability benefits must demonstrate that he suffers from an

1

Credibility determinations are left to the Commissioner and not to the courts. Carnes v.
Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the
courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986) (per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered
prior to October 1, 1981.
2

impairment that prevents him from engaging in any substantial gainful activity for a
twelve-month period. 42 U.S.C. § 423(d)(1). In addition to meeting the requirements of
these statutes, in order to be eligible for disability payments, a Plaintiff must meet the
requirements of the Commissioner’s regulations promulgated pursuant to the authority
given in the Social Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine
if a Plaintiff is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20
C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the Plaintiff is
working.

Id.

If not, the Commissioner determines whether the Plaintiff has an

impairment which prevents the performance of basic work activities. Id. Second, the
Commissioner determines the severity of the Plaintiff’s impairment or combination of
impairments. Id. Third, the Commissioner determines whether the Plaintiff’s severe
impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the
Regulations (the “Listing”). Id. Fourth, the Commissioner determines whether the
Plaintiff’s residual functional capacity can meet the physical and mental demands of past
work. Id. Fifth and finally, the Commissioner determines whether the Plaintiff’s residual
functional capacity, age, education, and past work experience prevent the performance of
any other work. In arriving at a decision, the Commissioner must consider the combined
effects of all of the alleged impairments, without regard to whether each, if considered
separately, would be disabling. Id. The Commissioner’s failure to apply correct legal
standards to the evidence is grounds for reversal. Id.

3

ISSUES
I.

Whether the ALJ properly evaluated Plaintiff’s credibility.

II.

Whether the ALJ properly evaluated Plaintiff’s mother’s testimony.

III.

Whether the ALJ properly evaluated Plaintiff’s limitations related to his
obesity.
Administrative Proceedings
Plaintiff Theodore Robert Olson III filed an application for supplemental security

income on August 24, 2012 alleging disability commencing June 1, 2005. His claim was
denied initially on November 20, 2012 and on reconsideration on February 15, 2013. On
April 11, 2013 he filed a written request for an evidentiary hearing before an
administrative law judge (ALJ) and the hearing was conducted on December 1, 2014.
Plaintiff, represented by counsel, appeared at the hearing and gave testimony. Tr. 21. An
impartial vocational expert (VE) also testified. Id. The ALJ issued an unfavorable
decision on January 29, 2015. Tr. 18-33. Plaintiff next sought review by the Appeals
Council on February 11, 2015, but was denied on April 25, 2016. Tr. 14-17; 1-6. Having
exhausted the administrative remedies available to him under the Social Security Act,
Plaintiff now seeks review of the final decision by the Commissioner.
Statement of Facts and Evidence
On his application date, Plaintiff was thirty-five years old. He has a high school
diploma and completed two years of college. He previously worked as a truck driver and
a tattoo artist. Tr. 199, 27, 45, 214. He alleged that he is disabled to work due to bipolar
disorder, depression, post-traumatic stress disorder (PTSD), poor circulation, cellulitis,
4

sleep disorder, diabetes, obesity, and fracture and pinched nerve in the back. Tr. 213,
266, 311.
In conducting the five-step sequential analysis, the ALJ found at step two that
Plaintiff has severe impairments of diabetes, obesity, lumbar radiculopathy, and major
depressive disorder. Finding No. 3, Tr. 23-24. At step three, he determined that these
impairments—considered both alone and in combination with one another—neither meet
nor medically equal a listed impairment found in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Finding No. 3, Tr. 23-24. Between steps three and four, the ALJ formulated
a residual functional capacity assessment (RFC) which permits Plaintiff to engage in
sedentary work as defined in 20 C.F.R. § 416.967(a) with added nonexertional
restrictions. Finding No. 4, Tr. 25. At step four, he found that Plaintiff’s restricted RFC
prevents him from returning to any past relevant work. Finding No. 5, Tr. 27. In the
step-five analysis, a VE was given hypothetical questions posed by both the ALJ and
Plaintiff’s counsel and testified that Plaintiff could work in jobs available in the national
economy as a document preparer, printed circuit board screener, or lens inserter. Finding
No. 9, Tr. 27-28. The ALJ therefore found Plaintiff not disabled. Finding No. 10, Tr. 28.
DISCUSSION
In his brief before the Court, Plaintiff asserts three errors. He first argues that the
ALJ discounted his credibility without cause and without setting forth reasons for doing
so. Next, he contends the ALJ failed to evaluate testimony by a lay witness—Plaintiff’s
mother. Third, Plaintiff asserts the ALJ erred in how he evaluated limitations resulting
from Plaintiff’s obesity. Pl.’s Br. 1-2, EFC No. 13. The Commissioner responds that
5

substantial evidence supports the ALJ’s credibility findings and the manner in which he
considered the testimony of the witnesses, and that his formulation of Plaintiff’s RFC
adequately accounts for Plaintiff’s obesity. Comm’r’s Br. 1, 4, 11-12, ECF No. 14.
I.

Did the ALJ properly evaluate Plaintiff’s credibility?
The ALJ found that Plaintiff’s subjective complaints of pain and other symptoms

were “not entirely credible.” Tr. 26. The ALJ employed the correct two-step process
required by the Commissioner’s regulations and rulings in 20 C.F.R. § 416.929 and SSRs
96-4p and 96-7p. Tr. 25. The ALJ gave three reasons for his finding: (1) the medical
evidence does not reveal disabling limitations; (2) there is no evidence of regular medical
attention, but instead only “minimal and sporadic” treatment mostly at emergency rooms;
and (3) Plaintiff’s daily routine and activities belie his complaints, especially as to
depression. Tr. 25-26. The ALJ is correct.
A review of the medical records and the ALJ’s written decision shows that the
ALJ considered the record as a whole and applied proper legal standards. When an ALJ
discredits subjective testimony as to pain or other symptoms, he must articulate explicit
and adequate reasons for doing so. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
When the ALJ does so, a court cannot reweigh the evidence but must give substantial
deference to the Commissioner’s decision. Dyer, 395 F.3d at 1206. Plaintiff’s reliance
on Mace v. Comm’r of Soc. Sec., 605 F. App’x 837 (11th Cir. 2015) is misplaced. Mace
requires an ALJ to consider that certain impairments produce symptomology that is
inconsistent over time, expressed as “good and bad days.” Id. at 844. The ALJ must
weigh the evidence in light of functional abilities in a home setting as opposed to the
6

demands of the workplace. Id. at 843. The record here shows a wide range of daily
activities over a sustained period of time. These activities include travel to other states,
driving, reading, using computers, shopping, managing money, and child care. Tr. 287302. The ALJ did not isolate a single day or period of time nor did he focus on a single
activity. He considered the record evidence as a whole. There is no error in the way the
ALJ evaluated Plaintiff’s subjective complaints of pain and other symptoms.
II.

Did the ALJ properly evaluate Plaintiff’s mother’s testimony?
Plaintiff asserts that the ALJ did not evaluate the evidence given by his mother in

the form of a Third-Party Function Report in November 2012. Her statements, however,
are cumulative to the statements and testimony of Plaintiff as to his daily activity and
symptomology. As such, her statements were clearly rejected by the ALJ in so far the
statements purportedly show that Plaintiff has pain and discomfort so severe that he is
unable to work. This is not error. Osborn v. Barnhart, 194 F. App’x 654, 666 (11th Cir.
2006)(“ Even if the ALJ fails to make an explicit credibility determination as to a family
member's testimony or statements, however, we will not find error if the credibility
determination was implicit in the rejection of the claimant's testimony.”).
III.

Did the ALJ properly evaluate Plaintiff’s limitations related to his obesity?
In his third and final enumeration of error, Plaintiff argues that the ALJ did not

properly evaluate limitations resulting from Plaintiff’s obesity. In his brief, Plaintiff
appears to have conflated two previous decisions by the Court into a single, erroneous
citation of authority. He purports to rely on this Court’s prior decision in Taylor v.
Astrue, 5:09-cv-146-HL, 2010 WL 2197279 (M.D. Ga. June 1, 2010). However his
7

Westlaw citation is, in fact, to this Court’s decision in Thomas v. Barnhart, 5:06-cv-6HL, 2008 WL 822514 (M.D. Ga. March 26, 2008). Both cases discuss obesity and
resulted in remand because of error in the ALJ’s evaluation of obesity.
In Thomas, the Court found that “the ALJ’s decision does not discuss or even
mention obesity.” Thomas, 2008 WL 822514, at *2. That is not the case here. The ALJ
found obesity to be a severe impairment. Finding No. 2, Tr. 23. He further noted that
obesity and back pain were found in a November 2011 consultative examination report.
Tr. 25-26. The ALJ thus did not err under the ruling in Thomas.
In Taylor, the Court remanded a claimant’s case to the Commissioner, finding that
“the ALJ did not consult medical evidence or the vocational expert in determining
(claimant’s) ability to work coupled with obesity.” Taylor, 2010 WL 2197279, at *5. In
the instant case, the ALJ expressly considered what little medical evidence there was as
to the limiting effects of obesity. In the November 2011 consultative examination, Amita
Oza, M.D. noted Plaintiff’s weight and height and characterized him as morbidly obese.
Ex. 8F, Tr. 443. Dr. Oza also found that “he should be able to do something in a
sedentary position with frequent change in position.” Ex. 8F, Tr. 444. The ALJ gave Dr.
Oza’s findings “great weight.” Finding No. 4, Tr. 27. So the ALJ clearly complied with
this Court’s decision in Taylor requiring an ALJ to consider medical evidence of obesity.
A review of the hypotheticals posed by the ALJ to the VE at the evidentiary
hearing show that he fully credited Dr. Oza’s finding that Plaintiff’s obesity limits him to
only sedentary work and further limits him to postural changes every fifteen minutes.
The hypothetical questions are premised exactly according to Dr. Oza’s clinical findings
8

at the conclusion of his report. Tr. 52-54, 444. Having consulted both the medical
evidence and the VE in determining Plaintiff’s ability to work, coupled with his obesity,
the ALJ fully complied with the Court’s Taylor holding and there is no merit in
Plaintiff’s third asserted error.
CONCLUSION
For the reasons stated above, the determination of the Social Security
Commissioner is affirmed.
SO ORDERED, this 10th day of May, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

9