Walker v. Colvin
Filing
12
FINAL OPINION AND ORDER AFFIRMING Commissioner's decision. The Court finds that the decision of the ALJ was supported by substantial evidence and was the result of an application of proper legal standards. The Clerk of Court is DIRECTED to enter judgment in favor of the Commissioner. Signed by Magistrate Judge Janet F. King on 8/22/16. (kxw) Modified on 8/22/2016 to edit text (kxw).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PAULETTE FAMBRO WALKER,
Plaintiff,
v.
CIVIL ACTION FILE NO.
1:15-CV-0945-JFK
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,1
Defendant.
FINAL OPINION AND ORDER
Plaintiff in the above-styled case brings this action pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision
of the Commissioner of the Social Security Administration which denied her
application for disability insurance benefits. For the reasons set forth below, the court
ORDERS that the Commissioner’s decision be AFFIRMED.
I.
Background & Procedural History
Plaintiff Paulette Fambro Walker (“Walker”), born April 9, 1951, seeks
disability insurance benefits based primarily upon her congestive heart failure and
1
Carolyn W. Colvin became Acting Commissioner of Social Security on
February 14, 2013.
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related symptoms, including fatigue and alleged loss of concentration.2 [Record (“R.”)
43]. Walker has a high school education and prior work experience as an office
manager and customer service representative. [R. 209]. Walker has not worked since
September 2009 when her employer went out of business and she was laid off from her
customer service job. [R. 28, 40, 57, 270]. Walker received unemployment benefits
and continued to search for employment for approximately one year. [R. 28, 57–58].
Walker currently lives with her daughter and her daughter’s family. [R. 44].
The claimant filed an application for disability insurance benefits on November
15, 2010, alleging that she became disabled on September 30, 2009. [R. 22, 143–48].
After her application was denied initially and on reconsideration, an administrative
hearing was held on May 15, 2013. [R. 22, 35–65, 77–83, 87–90]. The Administrative
Law Judge (“ALJ”) issued a decision denying Plaintiff’s application on September 19,
2013, and the Appeals Council denied Plaintiff’s request for review on January 27,
2015. [R. 1–6, 22–30]. Plaintiff filed her complaint in this court on June 9, 2015,
seeking judicial review of the Commissioner’s final decision. [Doc. 3]. The parties
have consented to proceed before the undersigned Magistrate Judge.
2
Walker was fifty-eight (58) years old on the date of alleged onset and sixtytwo (62) years old when she testified before the ALJ.
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The ALJ found that Plaintiff suffered from the following severe impairments:
obesity, hypertension, cardiomyopathy, congestive heart failure with occasional leg
swelling, mitral regurgitation with shortness of breath and palpitations, and fatigue.3
[R. 24]. Although these impairments are “severe” within the meaning of the Social
Security regulations, the ALJ found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 25]. Plaintiff
was found to be capable of performing her past relevant work as an administrative
officer and customer service representative. [R. 30]. The ALJ, therefore, found that
Plaintiff has not been under a disability since September 30, 2009, the amended alleged
onset date, through the date of decision, issued September 19, 2013. [R. 30].
The decision of the ALJ [R. 5–9] states the relevant facts of this case as
modified herein as follows:
The claimant reported that she is disabled due to obesity, hypertension,
cardiomyopathy, congestive heart failure with occasional leg swelling, mitral
3
“Cardiomyopathy” is defined as “a structural or functional disease of heart
muscle that is marked especially by hypertrophy of cardiac muscle, by enlargement of
the heart, by rigidity and loss of flexibility of the heart walls, or by narrowing of the
ventricles but is not due to a congenital developmental defect, to coronary
atherosclerosis, to valve dysfunction, or to hypertension.” http://www.merriamwebster.com/unabridged/cardiomyopathy (last visited August 18, 2016).
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regurgitation with shortness of breath and palpitations, and fatigue. However, the
claimant’s allegations of disability were not substantiated by the medical evidence of
record.
The claimant complained of chest pain, but chest x-rays dated January 8, 2010,
did not reflect evidence of any cardiopulmonary process. In addition, a physical
examination of the claimant was relatively normal. Alicia Cain, M.D., a consultative
examiner, noted that the claimant possessed a full range of motion in all of her
extremities as well as five out five motor strength. Dr. Cain described the claimant’s
gait as being normal, and she noted that the claimant did not require an assistive device
during ambulation.
The claimant reported that her ability to sit, stand, walk, lift, and climb stairs is
compromised due to pain and shortness of breath.
However, the claimant
acknowledged that she is able to independently dress, feed herself, use the toilet, shop,
and prepare her own meals. An echocardiogram of the claimant demonstrated
evidence of an abnormal nonspecific T wave with minimal voltage criteria for the left
ventricle heart. Based upon her observation and testing, Dr. Cain opined the claimant
should be able to carry twenty pounds, handle objects without difficulty, and sit, stand,
and walk for six hours out of an eight-hour work day (Exhibit 1F).
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The Atlanta Heart Associates (Atlanta) treatment notes indicated that the
claimant’s pace maker was operating in normal fashion. The claimant’s blood pressure
was elevated at times. Thus, the claimant was advised to exercise regularly and follow
a low sodium, low cholesterol diet. The Atlanta treatment notes revealed that the
claimant was prescribed medications that included, but were not limited to, Coreg,
Digoxin, Furosemide, Lisinopril, and Norvasc. The claimant indicated that she feels
“okay” and that she was tolerating her medications well. In fact, the claimant’s mitral
regurgitation was classified as being “mild,” and she possessed an ejection fraction of
fifty percent on June 17, 2010 (Exhibits 2F, 3F, 5F, 6F, 8F).
In addition, Charles Jones, M.D., a State medical consultant, noted on the
claimant’s physical residual assessment that she was able to frequently lift objects up
to twenty-five pounds, sit, stand, and walk six hours out of an eight hour day (Exhibit
12F). Dr. Jones reported the claimant should avoid concentrated exposure to protected
heights but did not restrict her from working around extreme cold, heat, wetness,
humidity, noise, vibration, and respiratory irritants. Although the claimant experienced
environmental limitations due to her impairments, Dr. Jones opined that the claimant
did not possess any postural, manipulative, visual, or communicative limitations.
Overall, Dr. Jones opined that the claimant still has the residual functional capacity to
perform a range of medium work (Exhibit 12F).
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On March 10, 2011, the claimant presented to Wellspring Medical Center
(Wellspring) for complaints of fatigue, palpitations, dizziness, and headaches.
However, the objective medical records classified the claimant’s cardiovascular system
as normal with a regular heart rate and rhythm. In addition, the Wellspring records
indicated that the claimant's condition of hypertension was “fairly well controlled”
with medication (Exhibit 4F).
Oluropo Ayeni, M.D., a treating physician, noted that the claimant experienced
fatigue, dyspnea, palpitations and dizziness that were exacerbated by walking,
performing household chores, or standing for long periods of time; thus, Dr. Ayeni
opined that the claimant should avoid these activities. Dr. Ayeni reported that the
claimant possessed a full range of motion in all of her extremities. She indicated that
the claimant was not impaired in her ability to handle her personal hygiene, sort paper,
perform fine and gross movements, and use a computer. Needless to say, Dr. Ayeni
did not preclude the claimant from all work (Exhibit 4F).
On May 13, 2011, Homayoun Amin, M.D., a treating physician, reported that
there was no evidence of apical impulse, murmurs, gallops, or rubs. The claimant’s
cardiovascular examination was still relatively normal (Exhibit 6F). In fact, Dr. Amin
advised the claimant to exercise on a regular basis (Exhibit 10F). Contrary to the
current medical evidence of records, Dr. Amin opined the claimant could only lift ten
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pounds occasionally and lesser amounts frequently. On February 21, 2012, he noted
that the claimant could only sit for two hours and stand or walk for one hour. Dr.
Amin also reported that the claimant would be absent from work for more than four
days per month based upon a decreased left ventricular ejection fraction of twenty
percent that occurred three years prior to the claimant’s alleged onset date followed by
the implantation of her pacemaker in the year of 2008 (Exhibit 13F).
The Hands of Hope Medical Center treatment notes showed that the claimant’s
blood pressure decreased to 135/69 on January 17, 2013, and 112/73 on April 18,
2013. The claimant acknowledged that she reduced her salt intake (Exhibits 15F, 16F).
During the hearing, the claimant testified that she is unable to work due to
symptoms of fatigue, poor concentration, heart palpitations, and the need to rest during
the day. She stated that movement of her arms and walking causes her to feel fatigue.
She stated that she is able to do laundry, cook, and walk for a block or two before she
must rest. The claimant reported that her medication of Coreg was increased from
25mg to 50mg that helped decrease her heart palpitations. She stated that she is able
to attend church and occasionally shop at the grocery store. The claimant indicated
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that she was five feet and seven inches tall and weighs one hundred and seventy-four
pounds. She stated that she could lift five pounds.4
The claimant testified that she stopped working because her company shut
down. She stated that she received unemployment benefits for approximately a year,
and she indicated that she continued to search for jobs after September 30, 2009, but
was unable to find positions that she was qualified to perform.
Otis Pearson, a vocational expert, classified the claimant’s past relevant work
as: an administrative officer (sedentary, skilled work), and a customer service rep
(light, semi-skilled). Mr. Pearson opined that a hypothetical person with the claimant’s
particular residual functional capacity would have been capable of performing all of
her past relevant work.
4
With respect to lifting and carrying on a regular basis, Plaintiff testified as
follows:
Well, five pounds is manageable. I usually don’t lift groceries or
anything like that; my daughter helps me with that. It just varies; I can’t
do constant lifting of no more than five pounds, I can’t do it. It just
drains my energy, takes me down to the fatigue that sets in.
[R. 49–50].
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II.
Standard
An individual is considered to be disabled if he is unable 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).
The impairment or impairments must result from anatomical,
psychological, or physiological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques and must be of such severity
that the claimant is not only unable to do his previous work but cannot, considering
age, education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy. See 42 U.S.C. §§ 423(d)(2) and (3).
“We review the Commissioner’s decision to determine if it is supported by
substantial evidence and based upon proper legal standards.” Lewis v. Callahan, 125
F.3d 1436, 1439 (11th Cir. 1997). “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.”
Id. at 1440.
“Even if the evidence preponderates against the
[Commissioner’s] factual findings, we must affirm if the decision reached is supported
by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
“‘We may not decide the facts anew, reweigh the evidence, or substitute our judgment
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for that of the [Commissioner].’” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th
Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
“The burden is primarily on the claimant to prove that he is disabled, and
therefore entitled to receive Social Security disability benefits.” Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001) (citing 20 C.F.R. § 404.1512(a)). Under the
regulations as promulgated by the Commissioner, a five step sequential procedure is
followed in order to determine whether a claimant has met the burden of proving his
disability. See Doughty, 245 F.3d at 1278; 20 C.F.R. §§ 404.1520, 416.920. At step
one, the claimant must prove that he has not engaged in substantial gainful activity.
See id. The claimant must establish at step two that he is suffering from a severe
impairment or combination of impairments. See id. At step three, the Commissioner
will determine if the claimant has shown that his impairment or combination of
impairments meets or medically equals the criteria of an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. See Doughty, 245 F.3d at 1278; 20 C.F.R. §§
404.1520, 416.920. If the claimant is able to make this showing, he will be considered
disabled without consideration of age, education, and work experience. See id. “If the
claimant cannot prove the existence of a listed impairment, he must prove at step four
that his impairment prevents him from performing his past relevant work.” Doughty,
245 F.3d at 1278. “At the fifth step, the regulations direct the Commissioner to
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consider the claimant’s residual functional capacity, age, education, and past work
experience to determine whether the claimant can perform other work besides his past
relevant work.” Id. If, at any step in the sequence, a claimant can be found disabled
or not disabled, the sequential evaluation ceases and further inquiry ends. See 20
C.F.R. §§ 404.1520(a), 416.920(a).
III.
Findings of the ALJ
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014.
2.
The claimant has not engaged in substantial gainful activity since
September 30, 2009, the alleged onset date (20 CFR § 404.1571, et seq.).
3.
The claimant has the following severe impairments: obesity,
hypertension, cardiomyopathy, congestive heart failure with occasional
leg swelling, mitral regurgitation with shortness of breath and
palpitations, and fatigue (20 CFR § 404.1520(c)).
4.
The claimant does not have an impairment or combination of
impairments that meets or medically 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 and 404.1526).
5.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform medium work as
defined in 20 CFR § 404.1567(c). The claimant can lift and/or carry
twenty-five pounds frequently and fifty pounds occasionally. She can sit,
stand, and walk with normal breaks for a total of about six hours in an
eight-hour day. The claimant can perform unlimited pushing and/or
pulling, including the operation of hand and/or foot controls. However,
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the claimant must avoid concentrated exposure to unprotected heights.
She has the unlimited ability to work in environments including extreme
cold, heat, wetness, humidity, noise, vibration, and respiratory irritants.
6.
The claimant is capable of performing past relevant work as an
administrative officer and a customer service representative. This work
does not require the performance of work-related activities precluded by
the claimant’s residual functional capacity (20 CFR § 404.1565).
7.
The claimant has not been under a disability, as defined in the
Social Security Act, from September 30, 2009, through the date of this
decision (20 CFR § 404.1520(1)).
[R. 24–26, 30].
IV.
Discussion
On appeal, Plaintiff asserts that the Commissioner’s decision should be reversed
because the ALJ allegedly failed to “properly state the medical opinion” of
Consultative Examiner, Dr. Robert J. Storms and, therefore, also failed to properly
assess Plaintiff Walker’s residual functional capacity (“RFC”). [Doc. 10 at 12].
Plaintiff suggests that the ALJ erred in omitting the word “simple” when characterizing
Dr. Storms’ assessment. [Doc. 10 at 12]. The crux of Plaintiff’s argument is that if the
ALJ had limited Plaintiff to performing simple tasks (consistent with Dr. Storms’
purported limitation), then the ALJ would have had to find Plaintiff unable to perform
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her past relevant work and been required to proceed to step five of the sequential
evaluation process.5 [Doc. 10 at 12].
A.
Dr. Storms Did Not Limit Plaintiff To Simple Tasks Or Simple
Instructions
Plaintiff’s legal argument is based on a faulty premise. As a factual matter,
there is nothing within Dr. Storms’ report to indicate that Plaintiff Walker had any
mental impairment or non-exertional limitations. Dr. Storms first noted that Plaintiff
has “no history of psychiatric hospitalization and does not take psychiatric
medications.” [R. 320]. Dr. Storms’ assessment of Plaintiff’s formal mental status
was unremarkable in that Plaintiff was within normal bounds as to all areas, including
speech, mood/affect, perceptual abnormalities, thought processes, consciousness,
orientation, memory/assessment, vegetative symptoms, energy level/speed, and
reliability. [R. 322]. Dr. Storms estimated Plaintiff’s IQ as “in the average range.” [R.
322].
Contrary to Plaintiff’s suggestion, Dr. Storms did not limit Claimant to simple
tasks or simple instructions. While the term “simple” was included within what appears
5
According to Plaintiff, because the administrative officer job is classified as
a skilled position and because the customer service representative is classified as a
semi-skilled position in the Dictionary of Occupational Titles, Plaintiff would be
unable to perform these jobs if limited to simple tasks and simple instructions. [Doc.
10 at 12 (citing R. 61)].
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to be a list of standard questions, Dr. Storms does not opine that Plaintiff was actually
restricted to simple tasks or only had the ability to follow simple instructions. As seen
in the “Summary and Prognosis” section of his report, Dr. Storms answered the
questions (underlined as in the actual report) as follows:
Can claimant understand/carry out simple instructions?
She can understand and can carry out simple instructions.
Can claimant sustain focused attention in order to complete simple
tasks in a timely fashion?
To the extent that she is physically capable of working, she can sustain
attention long enough to complete simple tasks in a timely fashion.
Can claimant get along with co-workers/supervisors/public?
She is able to get along with co-workers, supervisors, and
the public.
Would claimant decompensate under pressure?
To the extent that she is physically capable of working, she
would not decompensate under ordinary job stress.
Can claimant handle his/her own finances?
Should disability be awarded, she can handle her own
finances.
[R. 323]. Dr. Storms provides no prognosis because his conclusion is that Plaintiff
“has no Axis I mental disorder.” [R. 323]. Consistent with Plaintiff Walker’s own
testimony, infra, Dr. Storms’ report indicates that Plaintiff’s primary complaint is “her
reported heart failure.” [R. 323]. According to Dr. Storms, Plaintiff alleges to be
functioning with only “25 percent heart capacity; defibrillator.” [R. 320].
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Significantly, Dr. Storms twice qualifies his opinion as to Walker’s mental capacity
with the statement, “To the extent that she [Walker] is physically capable of working
. . . .”6 [R. 323]. Plaintiff’s suggestion that the ALJ did not “properly state the medical
opinion” of Dr. Storms finds no support in the record.
B.
The ALJ’s RFC Is Supported By Substantial Evidence
Moreover, the Court finds that the RFC in this case is well supported by
substantial evidence. As stated by the ALJ, the RFC finds support in the medical
records, the lack of aggressive medical treatment, and the Claimant’s own description
of her lifestyle and daily activities. [R. 29].
“The residual functional capacity is an assessment, based upon all of the relevant
evidence, of a claimant’s remaining ability to do work despite his impairments. . . .
Along with his age, education and work experience, the claimant’s residual functional
capacity is considered in determining whether the claimant can work.” Lewis, 125
F.3d at 1440 (citing 20 C.F.R. §§ 404.1545(a), 404.1520(f)). “RFC includes physical
abilities, such as sitting, standing or walking, and mental abilities, such as the ability
to understand, remember and carry out instructions or to respond appropriately to
supervision, coworkers and work pressure.” Dempsey v. Comm’r of Social Security,
6
Dr. Storms also observed that “Ms. Walker’s overall presentation was
straightforward and matter of fact with no embellishment. In my opinion, malingering
was not an issue.” [R. 322].
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454 Fed. Appx. 729, 731 n.3 (11th Cir. 2011) (citation omitted). In determining the
claimant’s RFC, the ALJ is required to consider the limiting effects of all the
claimant’s impairments, even those that are not severe. See Phillips, 357 F.3d at 1238
(“[T]he ALJ must determine the claimant’s RFC using all relevant medical and other
evidence in the case.”); and see Jones v. Dept. of Health & Human Servs., 941 F.2d
1529, 1533 (11th Cir. 1991) (citation omitted) (“Where a claimant has alleged several
impairments, the Secretary has a duty to consider the impairments in combination and
to determine whether the combined impairments render the claimant disabled.”); 20
C.F.R. § 404.1545(e).
In the present case, the ALJ’s RFC as to Plaintiff Walker reads as follows:
[T]he claimant has the residual functional capacity to
perform medium work as defined in 20 C.F.R §
404.1567(c). The claimant can lift and/or carry twenty-five
pounds frequently and fifty pounds occasionally. She can
sit, stand, and walk with normal breaks for a total of about
six hours in an eight-hour day. The claimant can perform
unlimited pushing and/or pulling, including the operation of
hand and/or foot controls. However, the claimant must
avoid concentrated exposure to unprotected heights. She
has unlimited ability to work in environments including
extreme cold, heat, wetness, humidity, noise, vibration,
respiratory irritants.
[R. 25–26]. “Medium work involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do
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medium work, we determine that he or she can also do sedentary and light work.” 20
C.F.R. § 404.1567.
1.
Physical Impairment / Exertional Limitations
With respect to the RFC’s exertional (physical) limitations, the ALJ assigned
“significant weight” to the RFC opinion of Dr. Jones. [R. 29]. On January 21, 2012,
Dr. Jones opined that despite Walker’s congestive heart failure, Claimant was capable
of: occasionally lifting and/or carrying 50 pounds, frequently lifting and/or carrying
25 pounds, standing and/or walking for about 6 hours in an 8-hour workday, and
unlimited pushing and/or pulling (including operation of hand and/or foot controls).
[Exhibit 12F / R. 363–70]. Dr. Jones noted, “Claimant’s cardiomyopathy limits the
weight she can lift and/or carry.” [R. 364]. Speaking to the severity of Claimant’s
symptoms, Dr. Jones wrote:
Claimant’s statement that she can only lift 5 pounds and walk 1 block
without stopping is not credible based on objective evidence in the MER.
CL also alleges she takes full-time care of her dying sister, doing house
work, cooking, cleaning house daily, goes to church, and driving her to
doctor appointments.
[R. 368].7 As “Additional Comments,” Dr. Jones explained that beyond Walker’s
hospital admission in 2006 due to presentation of symptoms associated with CHF
7
At least between May 2011 and November 2011, Walker was the primary care
giver for her sister, who was suffering from terminal cancer. [R. 44]. Walker’s sister
passed away in November of 2011. [R. 44].
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(congestive heart failure), at which time she was diagnosed with hypertension and nonischemic cardiomyopathy, examining physicians in 2010 (Dr. Cain) and 2011 (Dr.
Ayeni) both found Plaintiff’s “Cardiac exam unremarkable.” [R. 370]. The same two
physicians found Plaintiff to have clear lungs, no edema, pulses full and equal, no joint
deformities or muscle atrophy, her gait was stable unassisted, her motor and sensory
appeared intact, her range of motion was full and equal throughout in January 2010,
range of motion slightly decreased in lower back flexion, otherwise full and equal in
March 2011, and strength in all groups tested was 5/5 in January 2010, and strength
4-5/5 in March 2011. [R. 370].
The Vocational Expert (“VE”) testified that Plaintiff Walker was able to perform
her past relevant work. [R. 59–64]. The VE classified Plaintiff’s prior positions as
follows: administrative officer (not office manager), DOT number - 169.167-010,
sedentary work, SVP 7, and skilled; customer service representative, DOT number 299.367-010, light work, SVP 4, semi-skilled. [R. 61]. In response to the ALJ’s first
hypothetical question (range of medium work based upon Exhibit 12F - Dr. Jones), the
VE testified that Plaintiff would be capable of performing her past relevant work –
both as an administrative officer and as a customer service representative. [R. 61–62].
Similarly, as to the second hypothetical posed by the ALJ (range of light work based
upon Exhibit 1F - Dr. Cain), the VE testified that Plaintiff would be capable of
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performing her past relevant work. [R. 62–64]. The VE only precluded Plaintiff’s past
relevant work under the third hypothetical (based upon Exhibit 4F - Dr. Ayeni). [R.
64]. The ALJ assigned Dr. Ayeni’s opinion “lesser weight.”8 [R. 29]. The ALJ took
judicial notice that “the allegations of fatigue and shortness of breath upon exertion
would conclude no past relevant work, no jobs.”
[R. 64]. Accordingly, the
undersigned finds that the ALJ’s RFC encompasses the exertional functional
limitations supported by the record.
2.
Mental Impairment / Non-Exertional Limitations
As for the existence of any mental impairment, the ALJ assigned “significant
weight” to the opinions of Dr. Shahar and Dr. Storms. [R. 29]. As explained by the
ALJ, Dr. Shahar’s opinion corroborated Dr. Storms’ opinion that Plaintiff Walker did
not possess any medically determinable mental impairments. [R. 29, Exhibit 11F].
The ALJ found that both Drs. Shahar’s and Storms’ opinions were consistent with the
medical evidence of record when viewed as a whole. [R. 29 (citing SSR 96-6p, 1996
WL 374180)].
The ALJ properly found that because there was no objective medical evidence
to support a medically determinable mental impairment, there were no functional
8
On appeal, Claimant does not contend that the ALJ improperly weighed the
medical opinions and does not challenge the ALJ’s finding that Walker is capable of
performing a range of medium level work.
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limitations.9 [R. 24–25]. Plaintiff Walker testified at the outset of her evidentiary
hearing that she was unable to work due to fatigue and lack of concentration. [R. 43].
When asked by her attorney representative to explain why she felt incapable of
working, Walker testified as follows:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Ms. Walker, tell me in your own words why you feel you’re
incapable of working a job.
The fatigue, the concentration is gone.
Okay.
The heart palpitations, during the day I rest quite a bit –
Okay.
– If I get exhausted or get tired I have to lay down, and –
What causes you to get exhausted or tired?
Sometimes any kind of movement, for instance, shampooing my
hair or moving my arms. When I move my arms, I feel like I’m
more fatigued then. Walking can cause the fatigue, and you just
feel like you go down to a level you just have to rest. And then
after I lay down or rest for a few minutes, I can come back.
Okay, how often would you say you rest throughout the day?
I get up early, like 6:30 a.m. and I go back to bed about 8 a.m. so
it varies depending on what I have to do. If I do laundry, I have to
– it takes me a while to complete it, and just have to come lay
around. And the fatigue is just what gets me.
[R. 43].
Despite her alleged poor concentration, Plaintiff testified that she did not take
any psychological medication and did not attend counseling. [R. 56]. Plaintiff also
9
Again, as discussed with respect to the alleged restriction to “simple” tasks and
instructions, the skill level for the administrative officer position and the customer
service job is irrelevant.
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agreed with the ALJ at the hearing that whatever challenges she might have from a
mental health perspective stem from her cardiac concerns. [R. 56]. Accordingly,
based on the evidentiary record, the ALJ expressly found:
Poor concentration is not a medically determinable impairment in this
case. According to Social Security Ruling 96-4p, a medically
determinable impairment may not be established solely on the basis
of the claimant’s allegation of symptoms alone. Instead, there must be
evidence from an acceptable medical source in order to establish the
existence of a medically determinable impairment per Social Security
Ruling 06-3p.
In this case, there were no objective treatment records or emergency room
visits for these conditions [poor concentration]. Fran Shahar, Ph.D., a
State agency medical consultant, opined the claimant did not possess any
medically determinable mental impairments (Exhibit 11F).
In addition, Robert J. Storms, Ph.D., a consultative examiner, opined the
claimant is capable of sustaining attention long enough to complete tasks
in a timely fashion (Exhibit 7F). Therefore, I find that the claimant does
not have a medically determinable impairment of poor concentration.
[R. 24–25 (emphasis added)]. In the absence of a medically determinable mental
impairment, there is no evidentiary basis for inclusion of a functional limitation within
the RFC for alleged poor concentration. See 20 C.F.R. §§ 404.1508, 404.1527(a)(1),
and 404.1528. Plaintiff does not satisfy her burden of establishing the existence of a
mental impairment. See Doughty, 245 F.3d at 1278.
21
AO 72A
(Rev.8/82)
V.
Conclusion
Based on the forgoing reasons and cited authority, the Court finds that the
decision of the ALJ was supported by substantial evidence and was the result of an
application of proper legal standards.
It is, therefore, ORDERED that the
Commissioner’s decision be AFFIRMED. The Clerk of Court is DIRECTED to
enter judgment in favor of the Commissioner.
SO ORDERED THIS 22nd day of August, 2016.
22
AO 72A
(Rev.8/82)
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