Bell v. Social Security Administration

Filing 18

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/7/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DONNA E. BELL,

)
)
Plaintiff,
)
)
v.
)
)
NANCY BERRYHILL,1
)
Acting Commissioner of Social Security, )
)
Defendant.
)

NO. 3:14-cv-01886
CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION
Pending before the Court is Donna Bell’s Motion for Judgment on the Administrative Record
(Doc. No. 14). For the reasons stated herein, Bell’s Motion is DENIED.
I. INTRODUCTION
This is a civil action for judicial review of the Social Security Administration’s (“SSA”)
denial of benefits to Donna Bell on April 17, 2013. Bell filed an application for supplemental
security income on December 21, 2010, alleging disability beginning on January 1, 2010. The claim
was denied by the SSA on May 20, 2011, and upon reconsideration on October 27, 2011. Bell filed
a request for a hearing, and an Administrative Law Judge (“ALJ”) heard Bell’s case on March 15,
2013. The ALJ determined that Bell was not disabled under the Social Security Act. (Doc. No. 10
at 15.)2

1

Nancy Berryhill became acting Commissioner for the Social Security Administration on January

23, 2017.
2

Referenced hereinafter by page number(s) following the abbreviation “A.R.”, the Court cites the
A.R. by the page numbers which are stamped in the bottom right corner of the record.

II. ADMINISTRATIVE HEARING
The ALJ heard testimony from Bell and from Cindy Harris, a vocational expert. Bell
testified that she had a 12th grade education, was 52 years old, was about 5' 9" tall, weighed 283
pounds, did not smoke, and had no issues with abusing alcohol or drugs. (A.R. 36-37.) She stated
that she had not worked since January of 2010. (A.R. 37.) She testified that she supports herself with
her child’s and her grandchild’s disability payments plus food stamps and child support. (Id.) She
also stated that the money she received in 2009 and 2010 was for “helping people get their
disability.” (A.R. 37, 44.)
Bell testified that she had diabetes, took medicine for that condition, and checked her blood
sugar. (A.R. 46.) She stated that the symptoms from her diabetes included losing a toe, having
surgery on the other foot, tingling in her foot, and not being able to sit for a long time without
moving around. (Id.) She further testified that she lost her balance when walking and now uses a
cane. (A.R. 51.) Bell stated that she had breathing problems and used a breathing machine when
needed. (A.R. 51-52.)
Bell told the ALJ that she could stand only about 15 or 20 minutes at a time. (A.R. 53.) She
needs to have help (a cane) to walk, and she can sit only about 15 to 20 minutes at a time. (Id.) She
also testified that she lives with her five children and her grandson, and they help her bathe, cook,
and clean. (A.R. 54.) She has tumors in her eyes, she cannot see a far distance, and bright lights and
the sun hurt her eyes. (A.R. 55.) Bell takes medication for anxiety and depression. (A.R. 55-56.)

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The vocational expert, Cindy Harris, testified that, although there was no exact match in the
Directory of Occupational Titles (“DOT”), she believed “case aide” probably came the closest to
describing Bell’s prior work. (A.R. 57.) The ALJ posed a hypothetical question to Harris as follows:
I want you to consider an individual between ages 48 and 52 years old. . . . Has got
a[t] least high school education and past relevant work in the job you just described
which is light, semi-skilled. For the first hypothetical, I want you to consider that the
individual can perform exertional activities at a full range of light, postural activities
on an occasional basis with no ladders, no duties that require balancing or crawling.
So the individual can have - - should avoid concentrated exposure to extreme
temperatures, fumes, dust, gas inhalants, and all hazards. Also consider that the
individual should have no duties that require the individual to walk on uneven
surfaces. Consider from a mental standpoint that the individual can understand,
remember, and carry out a full range of detailed tasks and instructions and can have
frequent interaction with the public, coworkers, and supervisors. Is that past relevant
work going to be available?
(A.R. 58-59.)
Harris testified that past relevant work would be available to such an individual and there
also would be other jobs in the regional or national economy that would be available as well -- e.g.,
cashier, information clerk, interviewer. (A.R. 59.)
When the ALJ added the limitations of standing and walking only 15 to 20 minutes at a time
and less than two hours per day, with the aid of a cane, and lifting only from a seated position, Harris
testified that the jobs she had identified would not be available. (A.R. 59-60.) She stated, however,
that there would be a reduced number3 of “light” positions with these limitations -- jobs classified
as light, but performed from a seated position. (A.R. 60-61.)
When the ALJ added the limitation of recurring absences of at least two to three days per
month, Harris testified that such an individual would not be able to sustain employment. (A.R. 62.)

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Harris reduced the number of available jobs by 75 percent. (A.R. 61.)

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III. THE FIVE-STEP INQUIRY
The claimant bears the ultimate burden of establishing an entitlement to benefits by proving
his or her “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). The claimant’s physical or mental impairment must result from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3).
In determining disability, the SSA and the ALJ consider a five-step sequential evaluation
process. The Sixth Circuit has described these five steps as:
(1) A claimant who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
(2) A claimant who does not have a severe impairment will not be found to be disabled.
(3) A finding of disability will be made without consideration of vocational factors if a
claimant is not working and is suffering from a severe impairment which meets the duration
requirement and which meets or equals a listed impairment in Appendix 1 to Subpart P of the
Regulations. Claimants with lesser impairments proceed to step four.
(4) A claimant who can perform work that he has done in the past will not be found to be
disabled.
(5) If a claimant cannot perform his past work, other factors including age, education, past
work experience, and residual functional capacity must be considered to determine if other work can
be performed.
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007).

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IV. ADMINISTRATIVE DECISION
The ALJ in this case made the following findings:
1. Bell has not engaged in substantial gainful activity since December 21, 2010, the
application date.
2. Bell has the following severe impairments: diabetes mellitus, morbid obesity,
hypertension, asthma, and both anxiety and mood disorders.
3. Bell does not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments.
4. Through January 2013, Bell had the residual functional capacity (“RFC”) to perform “light
work,”4 except with restriction to occasional postural activities with no climbing of ladders,
balancing or crawling; a need to avoid concentrated exposure to temperature extremes, pulmonary
irritants like fumes, and hazards; an inability to walk on uneven surfaces; the ability to perform up
to detailed tasks; and the ability to work with the public, co-workers, and supervisors frequently.
Since January 2013, Bell’s RFC worsened slightly such that standing or walking is now limited to
15-20 minutes at a time and no more than two hours in an eight-hour work-day, with the use of a
cane.
5. Bell was capable of performing past relevant work as a case aide until January 2013. This
work did not require the performance of work-related activities precluded by Bell’s RFC.
Additionally, both prior to January 2013 and since that time, other work has existed in the national
economy that Bell could perform.
6. Bell has not been under a disability, as defined in the Social Security Act, since December
21, 2010, the date the application was filed.
(A.R.17-27.)
V. PLAINTIFF’S STATEMENT OF ERRORS
Plaintiff contends that the ALJ erred in the following ways:
(1) He failed to properly consider other severe impairments.
(2) He failed to include a function-by-function assessment in the RFC assessment.
4

The regulations define “light work” as lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. 416.967(b).

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(3) He relied on flawed vocational expert testimony.
(4) He failed to properly consider obesity.
(5) He failed to properly consider the opinion of Lillian BeAird-Gaines, M.D.
(6) He failed to perform a proper credibility analysis.
(Doc. No. 14-1 at 1.)
VI. STANDARD OF REVIEW
This Court’s review of the ALJ’s decision is limited to an inquiry into whether there is
substantial evidence to support the findings of the ALJ and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016).
Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Miller, 811 F.3d at 833.
If substantial evidence supports the ALJ’s decision, the Court defers to that finding even if there is
substantial evidence in the record that would have supported an opposite conclusion. Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
The Court may not try the case de novo, resolve conflicts in evidence, or decide questions
of credibility. Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012). The Court has the
power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing. 42 U.S.C. § 405(g).

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VII. ANALYSIS
A. Other Severe Impairments
Bell contends that the ALJ failed to find that the following conditions were severe: bilateral
ptosis (drooping of the eyelid), chronic kidney disease, idiopathic skin lesion of the left foot,
moderate nonproliferative diabetic retinopathy with exudative maculopathy of both eyes, and
peripheral vascular disease. Bell also has undergone excision of bilateral upper eyelid tumors with
reconstruction of the conjunctivae of the upper eyelids and amputation of her right fifth toe. In
addition, Bell has undergone incision and drainage of her right foot. Bell argues that the ALJ’s
failure to find these impairments to be severe or sufficiently state why he did not find them to be
severe was error.
In her Disability Report, Bell stated that her disabilities were asthma, hypertension, diabetes,
anxiety, depression, bronchitis, and high blood pressure. (A.R. 141.) At the administrative hearing,
the ALJ specifically asked Bell’s counsel if there were any other severe or non-severe impairments
besides morbid obesity, diabetes, hypertension, asthma, bronchitis, and glaucoma, and Bell’s counsel
stated there were not. (A.R. 43.) Counsel also represented that Bell was not alleging that she met or
equaled a listing. (Id.) Bell has waived this argument concerning additional severe impairments
through her Disability Report and her counsel’s representations to the ALJ.
Even if she had not waived this argument, when an ALJ considers, in steps 3-5, all of an
individual’s impairments, even those that are not severe, the ALJ’s failure to find additional severe
impairments at step two does not constitute reversible error. Fisk v. Astrue, 253 F. App’x 580, 583
(6th Cir. 2007); Buchanan v. Berryhill, 2017 WL1347327 at * 4 (M.D. Tenn. Apr. 12, 2017). Here,

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the ALJ considered Bell’s other impairments in making his RFC determination, and he accounted
for them by imposing significant limitations on Bell’s ability to perform light work, including her
ability to stand and walk.
B. Function by Function Assessment
Bell argues that the ALJ failed to conduct a function-by-function assessment in determining
her RFC, as required by SSR 96-8p. Although SSR 96-8p does require a function-by-function
evaluation to determine a claimant’s RFC, case law does not require the ALJ to discuss those
capacities for which no limitation is alleged or to provide a detailed statement in writing. Smith v.
Berryhill, 2017 WL 1196519 at * 9 (M.D. Tenn. Mar. 31, 2017). There is a difference between what
an ALJ must consider and what an ALJ must discuss in a written opinion. (Id.) The ALJ is required
only to explain how the evidence in the record supports the RFC determination, discuss the
claimant’s ability to perform sustained work-related activities, and explain the resolution of any
inconsistencies in the record. (Id.)
Here, the ALJ did not simply find that Bell could perform “light work.” He found that she
could perform light work with additional limitations:
except with restriction to occasional postural activities with no climbing of ladders,
balancing or crawling; a need to avoid concentrated exposure to temperature
extremes, pulmonary irritants like fumes, and hazards; an inability to walk on uneven
surfaces; the ability to perform up to detailed tasks; and the ability to work with the
public, co-workers, and supervisors frequently. Since January 2013, Bell’s RFC
worsened slightly such that standing or walking is now limited to 15-20 minutes at
a time and no more than two hours in an eight-hour work-day, with the use of a cane.
(A.R. 19.)
All of these limitations are part of the ALJ’s determination of Bell’s RFC. The ALJ
explained each of them and discussed the medical records and Bell’s testimony. (A.R. 19-25.) The

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ALJ did not err by failing to describe each step of a function-by-function analysis in his written
opinion.
C. Vocational Expert Testimony
Bell contends that the vocational expert, and ultimately the ALJ, found that she could do a
“full range” of light work, which requires standing or walking for a total of approximately 6 hours
of an 8-hour work day. The ALJ did not find that Bell could do a “full range” of light work. The
second hypothetical question posed to the expert by the ALJ added the limitations of being able to
stand and walk less than two hours per day and that all lifting has to be done from a seated position.5
Moreover, the ALJ stated that the individual would be limited to those jobs that are at a “less than
full range” of light work. (A.R. 59-60.) He said that he was in between the full range of sedentary
and the full range of light. (A.R. 60.)
Similarly, the ALJ opinion states, in finding that Bell’s RFC had worsened since January
of 2013, that Bell is limited to standing or walking no more than two hours in an eight-hour workday. Bell argues that the limitation to standing or walking no more than 2 hours per day was not
included in the RFC in this decision, but it was. (See A.R. 19.) The ALJ did not find that Bell can
do the full range of light work; he found that she can do light work with limitations, light work from
a seated position.
Bell also claims that the ALJ failed to explain how she could perform pushing or pulling
activities while holding a cane in her hand. Again, the ALJ specifically limited his question to jobs
in which all lifting has to be done from a seated position. (A.R. 59.) There is no requirement to use

5

“[T]he individual would be able to have a sit stand option but all the duties would have to be
performed seated.” (A.R. 60.)

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a cane to push or pull arm-hand controls or leg-foot controls while seated. In addition, there was
no evidence or argument that Bell could not push or pull from a seating position.
Finally, Bell argues that the ALJ basically testified for the vocational expert and told her
what to say. The Court has read the transcript and disagrees. The vocational expert agreed with
certain statements of the ALJ, but the Court finds nothing that required her to agree. The ALJ is
entitled to question and determine the credibility of the witnesses, including the vocational expert.
The Court finds that his questions were not improper.
D. Obesity
Bell contends that the ALJ failed to properly consider her obesity. The claimant bears the
evidentiary burden of establishing that her obesity imposes functional limitations. Boles v. Colvin,
2015 WL 4506174 at * 2 (M.D. Tenn. July 23, 2015). The SSA recognizes that obesity may increase
the severity of coexisting or related impairments and requires the ALJ to consider the effects of
obesity at all steps of the disability evaluation process, but it does not mandate a particular mode of
analysis for evaluating obesity claims. Id.; Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435,
442-43 (6th Cir. 2010).
The ALJ in this case identified morbid obesity as one of Bell’s severe impairments. (A.R.
17.) In addition, the ALJ discussed Bell’s obesity several times in his opinion. For example, he
stated that he had considered whether the claimant’s obesity independently or in concert with
another impairment meets or equals any of the listed impairments and concluded that it does not.
(Id.) He also noted that he had considered the possible impact of obesity on the claimant’s body
systems and how obesity might otherwise affect her general functioning. (A.R.19.)

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The Sixth Circuit has held that an ALJ does not need to make specific mention of obesity if
he credits an expert’s report that considers obesity. Coldiron, 391 F. App’x at 443. The ALJ here
cited the medical records of Skyline Medical Center (A.R. 13F), which noted Bell’s obesity. The
ALJ also noted that Dr. Andrew Beckler found that Bell’s obesity did not adversely limit her ability
to walk, twist, turn, bend, or lift. (A.R. 22, Ex. 9F.) In summarizing Bell’s medical records, the ALJ
stated: “Her obesity does not appear to significantly limit her mobility, based on examination
findings. She does not have significant obesity related health complications, aside from her diabetes
and hypertension.” (A.R. 24.)
The ALJ based his finding that Bell’s obesity did not significantly limit her ability to work
on medical evidence. The Court finds that the ALJ properly and adequately considered Bell’s
obesity in his opinion.
E. Dr. Lillian BeAird-Gaines
Bell contends that the ALJ failed to properly consider the opinion of Dr. Lillian BeAirdGaines, who was a treating physician and wrote a letter on Bell’s behalf, opining that Bell was
unable to work outside her home because of her medical conditions.(See A.R. 630.) Dr. BeAirdGaines’ letter states that Bell had been seen in the Vine Hill Clinic since August of 2008. The letter
notes that Bell has diabetes mellitus (under moderate control), asthma (mild intermittent), anxiety
disorder with panic attacks (moderate control), depression (chronic, recurrent), and obesity. (Id.) The
letter also states: “Ms. Bell experiences frequent episodes of debility due to her baseline medical
conditions and would experience a high rate of job absenteeism. Further, the stress associated with
full-time employment would likely exacerbate her Anxiety Disorder and result in worsening of her
Depression.” (Id.)

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Bell argues that the ALJ erred by failing to provide the required “good reasons” for rejecting
this treating source opinion. Social Security regulations require the agency to provide good reasons
for the weight given to a treating physician’s opinion. Allen v. Comm’r of Soc. Sec., 561 F.3d 646,
651 (6th Cir. 2009). The ALJ’s explanation must be sufficiently specific to make clear to any
subsequent reviewers the weight he or she gave to the treating physician’s medical opinion and the
reasons for that weight. Helm v. Comm’r. of Soc. Sec., 405 F.App’x 997, 1000 (6th Cir. 2011).

Here, the ALJ did provide his reasons for rejecting this opinion. He actually listed five
reasons for finding that Dr. BeAird-Gaines’ opinion merited little weight. For example, the ALJ
noted that Dr. BeAird-Gaines’ opinion was inconsistent with Bell’s treatment records (including
those from Dr. BeAird-Gaines’ own clinic) which suggested that Bell’s impairments were “under
even better control” than Dr. BeAird-Gaines suggested. (A.R. 24.) The ALJ also found that Dr.
BeAird-Gaines’ opinion was inconsistent with Bell’s documented daily activities. (A.R. 24.)
Bell obviously disagrees with the ALJ’s reasons, but the ALJ did explain those reasons and
found that the opinion was not supported by the medical evidence. The Court finds that the ALJ
adequately evaluated and explained his reasons for rejecting the letter from Dr. BeAird-Gaines.
F. Credibility
The Court is to accord the ALJ’s determination of credibility great weight and deference
particularly because the ALJ had the opportunity of observing the claimant’s demeanor while
testifying. Jones v. Comm’r. of Soc. Sec., 336 F.3d 468, 476 (6th Cir. 2003).6
Here, Bell claims that the ALJ did not adequately evaluate and assess her credibility. The
ALJ specifically found that the medical records did not support Bell’s allegations and that her
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The Sixth Circuit has held that an ALJ’s credibility findings are virtually “unchallengeable.”
Ritchie v. Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013).

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statements about her limitations were not entirely credible. (A.R. 23.) For example, he stated that
the medical records show that Bell was not compliant with her medications and treatment measures
and that lack of compliance played a much larger role in her problems. (Id..) see also A.R. 203 (Bell
admitted not checking her blood sugar in over a month, being non-compliant with her diabetes
medicine, and non-compliant with suggested diet changes); A.R. 212 ( Bell admitted not checking
blood sugar); A.R. 222 (Bell told doctor her diabetes was well controlled on medication); A.R. 567
(Bell not checking blood pressure or blood sugar at home); A.R. 573 (Bell non-compliant with blood
pressure medication); A.R. 624 (primary care physician advises that Bell is on medications, but takes
them as she wants, not as prescribed)).7
The ALJ also found that Bell’s description of her symptoms was inconsistent with her daily
activities, as reported by both Bell and her doctors. For example, Bell told the state psychological
examiner that she managed her medications and finances with some difficulty and that she could
prepare elaborate meals and wash dishes. She stated that she drives a few times a week in the
daytime and plays dominoes as a hobby. (A.R. 323.) That examiner found Bell to have moderate
impairment in her short-term memory and mild to moderate impairment in her ability to sustain
concentration. (Id.) The examiner found that Bell showed evidence of a moderate to marked
impairment in her social relating and moderate impairment in her ability to adapt to change and
follow instructions. (Id.)8

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The ALJ stated that Bell’s lack of compliance also suggested that her day-to-day symptoms were
not particularly serious. (A.R. 23-24.)
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Dr. Beckler’s records indicate that, upon physical examination, he found that Bell had no
restrictions to occasionally and frequently lift and/or carry and no restrictions to stand, walk or sit with normal
breaks. (A.R. 352.)

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The ALJ credited Bell’s complaints about her ability to walk and stand and added limitations
to her RFC based upon those physical difficulties. The ALJ found that, after January of 2013, Bell
could walk or stand only 15-20 minutes per day and no more than two hours in an eight-hour
workday, with the use of a cane. (A.R.19.)
As indicated above, the ALJ’s credibility determinations are entitled to great deference, and
the Court finds that this ALJ did not err in his credibility determination regarding Bell.
VII. CONCLUSION
For all these reasons, there is substantial evidence in the record of this case to support the
decision of the ALJ and the correct legal standards were applied. Therefore, Bell’s Motion for
Judgment on the Administrative Record (Doc. No. 14) will be denied and the decision of the SSA
will be affirmed. An appropriate Order will be entered.
IT IS SO ORDERED.

___________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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