BAILEY v. COLVIN
ORDER affirming the determination of the Social Security Commissioner. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6/23/2017. (efw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
NANCY A BERRYHILL,
Commissioner of Social Security,
CASE NO. 3:16-CV-102-MSH
Social Security Appeal
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, finding that she 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).
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
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 she is unable to perform her
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 she suffers from an
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).
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.
impairment that prevents her 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
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.
Whether the ALJ evaluated Plaintiff’s obesity.
Whether the ALJ properly evaluated Plaintiff’s credibility.
Plaintiff Julia M. Bailey filed applications for disability insurance benefits and
supplemental security income on October 10, 2012 alleging that she became disabled to
work on August 6, 2012.
Her claims were denied on January 16, 2013 and on
reconsideration on March 12, 2013. She filed a written request for an evidentiary hearing
before an administrative law judge (ALJ) on April 30, 2013. The hearing was held on
August 7, 2014. Plaintiff appeared with her attorney and gave testimony, as did an
impartial vocational expert (VE). Tr. 17. The ALJ issued an “unfavorable” written
decision denying her applications on October 20, 2014. Tr. 14-33. She sought review by
the Appeals Council on November 7, 2014 but was denied on June 13, 2016. Tr. 12-13,
2-8. Having exhausted the administrative remedies available to her under the Social
Security Act, she now seeks judicial review of the final decision by the Commissioner to
deny her claims.
Statement of Facts and Evidence
On the alleged date of disability onset, Plaintiff was fifty-two years old. She has a
high school education and worked previously as a cook and server in restaurants. Tr. 26.
In conducting the five-step sequential analysis set forth in the Commissioner’s
regulations for the evaluation of disability claims, at step two the ALJ found her to have
severe impairments of seizure disorder, depression, anxiety, history of knee pain, and
obesity. 20 C.F.R. §§ 404.1520(c), 416.920(c). Finding No. 3, Tr. 19-20. At step three
he further found that these impairments, considered both alone and in combination with
one another, neither meet nor medically equal a listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Finding No. 4, Tr. 20-21. Between steps three and four, the ALJ
formulated a residual functional capacity assessment (RFC) which permits her to engage
in work at the light exertional level with added exertional and nonexertional restrictions.
Finding No. 5, Tr. 21-26. Next, the ALJ determined at step four that the RFC assessment
prohibited her from returning to her past relevant work. Finding No. 6, Tr. 26. In his
step-five analysis, the ALJ established that there are jobs available to Plaintiff in the
national economy which her RFC permits her to perform and—relying on testimony from
the VE—found cashier, ticket marker, and mail clerk to be representative occupations.
Finding No. 10, Tr. 26-27. Therefore, he found Plaintiff to not be disabled. Finding No.
11, Tr. 28.
In her brief before the Court, Plaintiff raises two allegations of error. First, she
argues the ALJ failed to evaluate her obesity. Second, she claims the ALJ improperly
discounted her credibility in considering her statements about her symptoms. Pl.’s Br. 1,
2, ECF No. 13. The Commissioner responds that the ALJ properly considered Plaintiff’s
obesity and her subjective complaints. Comm’r’s Br. 3, 7, ECF No. 16. The issues are
addressed by the Court in the order Plaintiff has raised them.
Did the ALJ evaluate Plaintiff’s obesity?
The ALJ found at step two that Plaintiff has the severe impairment of obesity even
though Plaintiff had not listed obesity as a reason she considered herself disabled to
work. Finding No. 3, Tr. 19-20, 248. He addressed obesity in the context of Social
Security Ruling 02-01p, noting that obesity must be considered in determining severe
impairments, whether impairments meet or equal a listed impairment, whether
impairments prevent a return to past relevant work, and whether impairments preclude a
claimant from engaging in other available work. Tr. 19, 20. In other words, the ALJ
properly acknowledged the requirement in the Commissioner’s regulations governing
obesity that it be considered throughout the five-step sequential analysis.
Plaintiff’s reliance on this Court’s prior decisions in Thomas v. Barnhart, 5:06-cv6-HL, 2008 WL 822514 (M.D. Ga. March 26, 2008) and Taylor v. Astrue, 5:09-cv-146HL, 2010 WL 2197279 (M.D. Ga. June 1, 2010) is misplaced. In Thomas, the ALJ failed
to mention or discuss obesity. In Taylor, the ALJ did not consult or review the medical
evidence of obesity in determining claimant’s ability to work. The ALJ here found
obesity to be a severe impairment and noted Plaintiff’s weight on presentations to her
health care providers throughout his written decision.
On March 22, 2011, Plaintiff was treated at Athens Neurological Associates. The
ALJ explicitly considered her weight and blood pressure and her otherwise benign
condition. Tr. 23. She was seen again on December 5, 2011 and the ALJ again noted her
weight relative to her blood pressure in the record. Tr. 24. At the evidentiary hearing,
her attorney established through her testimony her weight and height, but neither at the
hearing nor in the medical evidence of record is there any indication that obesity caused
functional limitations which would preclude Plaintiff from working. The ALJ thoroughly
considered obesity, found it to be a severe impairment, discussed it throughout his
decision, and thus no error is found. Lewis v. Comm’r of Soc. Sec., 487 F. App’x 481
(11th Cir. 2012).
Did the ALJ properly evaluate Plaintiff’s credibility?
The ALJ discounted Plaintiff’s credibility regarding her statements and testimony
about her symptoms. Plaintiff asserts he failed to consider the appropriate regulatory
factors and did not give explicit and adequate reasons for doing so. As pointed out in the
decision, the ALJ first noted that Plaintiff quit previous work not because she was unable
to do it, but because she wanted to open a catering business. Tr. 26. He further discussed
her seizure disorder and evidence in the record that seizures were much less frequent than
she said and were controlled by medication. Tr. 26, 40, 48. Furthermore, objective
medical testing such as MRIs and CT scans did not support her claim. The ALJ drew his
conclusion to discount her credibility after acknowledging the correct regulations and
rulings. Tr. 21-22. In doing so, he sufficiently explained his decision and applied the
correct principles of law. Markuske v. Comm’r of Soc. Sec., 572 F. App’x 762 (11th Cir.
2014). Plaintiff’s second asserted error is without merit.
For the reasons stated above, the determination of the Social Security
Commissioner is affirmed.
SO ORDERED, this 23rd day of June, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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