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2013 Sep-19 AM 11:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
PATRICIA A. HALL,
CAROLYN W. COLVIN,
Acting Commissioner of Social
CASE NO. 2:12-CV-2280-VEH
The plaintiff, Patricia A. Hall, brings this action pursuant to the provisions of
section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking
judicial review of a final adverse decision of the Commissioner of the Social Security
Administration (the Commissioner) denying her application for Supplemental
Security Income (SSI). The plaintiff filled an application for SSI alleging disability
The court notes that, on February 14, 2013, Carolyn W. Colvin was named the Acting
t h e S o c i a l S e c u r i t y A d m i n i s t r a t i o n . S e e
C o m m i s s i o n e r o f
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.”). Under 42 U.S.C. § 405(g), “[a]ny
action instituted in accordance with this subsection shall survive notwithstanding any change in the
person occupying the officer of Commissioner of Social Security or any vacancy in such office.”
Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil Procedure
the court has substituted Carolyn W. Colvin for Michael Astrue in the case caption above and
HEREBY DIRECTS the clerk to do the same party substitution on CM/ECF.
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beginning October 1, 2008. Plaintiff timely pursued and exhausted her administrative
remedies available before the Commissioner. Accordingly, this case is now ripe for
judicial review under 42 U.S.C. § 405(g). Based on the court’s review of the record
and the briefs submitted by the parties, the court finds that the decision of the
Commissioner is due to be affirmed.
I. STANDARD OF REVIEW
The sole function of this court is to determine whether the decision of the
Commissioner is supported by substantial evidence and whether proper legal
standards were applied. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). To that end this court “must scrutinize the record as a whole to determine if
the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth, at 1239 (citations omitted). Substantial evidence is “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Bloodsworth, at 1239. This court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Even if the court finds that the evidence
preponderates against the Commissioner’s decision, the court must affirm the
Commissioner’s decision if it is supported by substantial evidence. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003).
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II. STATUTORY AND REGULATORY FRAMEWORK
In order to qualify for disability benefits and to establish entitlement for a period of
disability, a claimant must be disabled. The Act defines disabled as the “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 twelve
months . . . .” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). For the purposes of
establishing entitlement to disability benefits, “physical or mental impairment” is
defined as “an impairment that results 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 whether a claimant is disabled, Social Security regulations
outline a five-step sequential process. 20 C.F.R. § 404.1520 (a)-(f). The
Commissioner must determine in sequence:
(1) whether the claimant is currently employed;
(2) whether she has a severe impairment;
(3) whether her impairment meets or equals one listed by the
(4) whether the claimant can perform her past work; and
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(5) whether the claimant is capable of performing any work in the
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); accord McDaniel v. Bowen, 800
F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied Steps One and
Two, she will automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her past work,
the burden shifts to the Secretary to show that the claimant can perform some other
job.” Pope, at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
In the present case, the ALJ determined the plaintiff met the first test, but
concluded she did not have a severe impairment at step two. Accordingly, the ALJ
found the plaintiff not disabled. R. 24.
III. FACTUAL BACKGROUND
The medical records contain no treatment notes after the plaintiff’s alleged
onset date. There is only one treatment note in the record after 2003. It is an
emergency room visit on May 23, 2008. The plaintiff complained of a two to three
month history of right flank pain and leg cramps. R. 212. She was discharged with
a diagnosis of acute low back pain. R. 211.
On December 23, 2008, Dr. Romeo conducted a consultative physical
examination of the plaintiff. R. 177-86. Dr. Romeo’s examination of the plaintiff’s
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extremities and back was normal in all respects. R. 179. Dr. Romeo found “no
deformity, tenderness, synovitis, or effusion” in the plaintiff’s joints. R. 179. There
were no spasms or deformities in the plaintiff’s back. R. 176. The plaintiff’s gait was
normal, and she was able to stoop, kneel, crouch, tandem walk, and heel/toe walk.
R. 179. Straight leg raise testing was negative. R. 179. Dr. Romeo found the
plaintiff’s range of motion was normal in all areas. R. 181-82. He reviewed an x-ray
of the plaintiff’s right knee, which showed “[m]oderate degenerative joint disease.”
R. 183. Dr. Romeo’s summary states the plaintiff had “[r]ight-sided rheumatic pain
without objectively identifiable etiology.” R. 180. Dr. Romeo also completed a
medical source opinion indicating the plaintiff had no limit in her ability to sit, walk
or stand. R. 184. He indicated the plaintiff would be able lift and carry 10 pounds
constantly, 20 pounds frequently, and 30 pounds occasionally. R. 184. Dr. Romeo
indicated the plaintiff could constantly perform all functions listed on the form
including pushing, pulling, climbing, stooping, kneeling, crouching, crawling and
handling. R. 185.
The plaintiff’s only argument on appeal is that the ALJ “failed to apply the
correct legal standard at step two of the sequential evaluation process in finding that
Ms. Hall did not have a medically determinable impairment.” Pl.’s Br. 3. She argues
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the x-ray taken by Dr. Romeo shows the presence of a medically determinable
impairment. Pl.’s br. 4. The plaintiff argues the ALJ was required to consider
whether that impairment was severe under the regulations. Pl.’s Br. 4.
The ALJ’s finding at step two was as follows: “There are no medical signs or
laboratory findings to substantiate the existence of a severe medically determinable
impairment.” Finding # 2, R. 24. In his decision, the ALJ discussed Dr. Romeo’s
Dr. Romeo indicated that the claimant had right-sided pain without any
objectively identifiable etiology. The findings from Dr. Romeo’s
physical examination showed the claimant is totally normal in all areas.
Her range of motion was totally within normal limits in all areas, and x-
rays of her right knee showed no fracture or subluxation.
R. 24. Based upon Dr. Romeo’s report, the ALJ concluded the plaintiff had no severe
medically determinable impairment:
I find that a comprehensive review of the current independent medical
source examinations clearly show that the claimant does not have any
physical or mental impairments. Accordingly, there are no medical
signs or laboratory findings to substantiate the existence of a
medically determinable impairment of a severe nature.
The regulations provide that in order to progress beyond step two, a claimant
must have an impairment that significantly limits her ability to do basic work
activities: “If you do not have any impairment or combination of impairments which
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significantly limits your physical or mental ability to do basic work activities, we will
find that you do not have a severe impairment and are, therefore, not disabled.” 20
C.F.R. § 416.920(c) (emphasis added). Therefore, the vocational impact of an
impairment is the crucial issue in determining whether an impairment is severe at step
two. If an impairment does not significantly limit the claimant’s “physical or mental
ability to do basic work activities,” it cannot be found to be a severe impairment at
The regulations further provide that it is the claimant’s responsibility to provide
evidence showing the presence of an impairment and how it affects her functioning:
You must provide medical evidence showing that you have an
impairment(s) and how severe it is during the time you say that you are
disabled. You must provide evidence . . . showing how your
impairment(s) affects your functioning during the time you say that you
are disabled . . . .
20 C.F.R. § 416.912(c). In Ellison v. Barnhart, the court emphasized that “the
claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.” 355 F.3d 1272, 1276
(11th Cir. 2003) (citing 20 C.F.R. § 416.912(a), (c)). The plaintiff argues the x-ray
showing moderate degenerative joint disease is sufficient to show she has a severe
impairment at step two. But “a diagnosis or a mere showing of ‘a deviation from
purely medical standards of bodily perfection or normality’ is insufficient; instead,
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the claimant must show the effect of the impairment on her ability to work.” Wind
v. Barnhart, 133 Fed. App’x 684, 690 (11th Cir. 2005) (unpublished) (citing
McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)).
In the present case, the ALJ applied the correct legal standard by considering
the impact of the plaintiff’s alleged impairments on her ability to work. The only
evidence showing the severity of the plaintiff’s physical impairments is from Dr.
Romeo. Dr. Romeo found the plaintiff was not limited in any way by her alleged
physical impairments. Although Dr. Romeo interpreted the plaintiff’s x-ray as
showing moderate degenerative joint disease of the right knee, he did not include
degenerative joint disease as a diagnosis in his report. Dr. Romeo’s summary only
states the plaintiff has “[r]ight-sided rheumatic pain without objectively identifiable
etiology.” R. 180. The ALJ relied upon Dr. Romeo’s report to conclude the plaintiff
did not have a physical impairment. That report provides substantial evidence to
support the ALJ’s finding of no physical impairment, and his ultimate finding that the
plaintiff did not have a severe impairment as defined by the regulations.
The court concludes the ALJ’s determination that the plaintiff is not disabled
is supported by substantial evidence, and that the ALJ applied the proper legal
standards in arriving at this decision. Accordingly, the Commissioner’s final decision
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is due to be affirmed. An appropriate order will be entered contemporaneously
DONE and ORDERED this 19th day of September, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge