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Case 2:12-cv-02280-VEH Document 10 Filed 09/19/13 Page 1 of 9

FILED

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

SOUTHERN DIVISION

PATRICIA A. HALL,

Plaintiff,

v.

CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

Defendant.

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CASE NO. 2:12-CV-2280-VEH

MEMORANDUM OPINION1

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

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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.

Case 2:12-cv-02280-VEH Document 10 Filed 09/19/13 Page 2 of 9

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

Secretary;

(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

national economy.

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.

IV. DISCUSSION

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

physical examination:

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.

R. 24.

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

step two.

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.

V. CONCLUSION

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

herewith.

DONE and ORDERED this 19th day of September, 2013.




VIRGINIA EMERSON HOPKINS
United States District Judge

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