Ward v. Colv(CONSENT)

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on February 27, 2015. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
DELORES DIANE WARD,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO.: 1:14cv206-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Delores Diane Ward (“Plaintiff”) filed applications for disability insurance benefits

under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq, and for
supplemental security income under Title XIV of the Act. Her applications were denied
at the initial administrative level. Plaintiff then requested and received a hearing before
an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a decision
in which he found Plaintiff not disabled from the alleged onset date of May 1, 2005,
through the date of the decision. Plaintiff appealed to the Appeals Council, which
rejected her request for review of the ALJ’s decision. The ALJ’s decision consequently
became the final decision of the Commissioner of Social Security (“Commissioner”).1

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to
Social Security matters were transferred to the Commissioner of Social Security.

See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the
court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties
have consented to the conduct of all proceedings and entry of a final judgment by the
undersigned United States Magistrate Judge. Pl.’s Consent to Jurisdiction (Doc. 10);
Def.’s Consent to Jurisdiction (Doc. 9). Based on the court’s review of the record and the
briefs of the parties, the court AFFIRMS the decision of the Commissioner.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to benefits when the person 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).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of
Impairments]?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
2

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.

2

An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
“not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Id. at 1238-39. The RFC is what the claimant is
still able to do despite the claimant’s impairments and is based on all relevant medical
and other evidence. Id. It may contain both exertional and nonexertional limitations. Id.
at 1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines4 (“grids”) or call a vocational expert (“VE”). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary

3

McDaniel is a supplemental security income case (SSI). The same sequence applies to disability
insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases.
See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).

4

See 20 C.F.R. pt. 404 subpt. P, app. 2.

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or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
“Substantial evidence is more than a scintilla, but less than a preponderance. It is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support the decision of the ALJ, but instead must
view the record in its entirety and take account of evidence which detracts from the
evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No
similar presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
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III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty-two years old at the time of the hearing before the ALJ, and had

completed the twelfth grade.

Tr. 60.

Following the administrative hearing, and

employing the five-step process, the ALJ found at Step One that Plaintiff “has not
engaged in substantial gainful activity since May 1, 2005, the alleged onset date[.]” Tr.
21.

At Step Two, the ALJ found that Plaintiff suffers from the following severe

impairments: “lumbar degenerative disc disease, chronic obstructive pulmonary disease,
congestive heart failure, major depressive disorder, and anxiety[.]” Id. At Step Three,
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[.]” Id. at 32.
Next, the ALJ articulated Plaintiff’s RFC as follows:
the claimant has the residual functional capacity to perform the full range of
light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b). In
function-by function terms, the claimant can perform lifting and carrying of
20 pounds occasionally, and she can perform lifting, and carrying of 10
pounds frequently. The claimant can perform standing and walking with
normal breaks for about 6-hours out of an 8-hour workday, and she can
perform sitting for about 6-hours out of an 8-hour workday. Due to
psychological factors, the claimant remains capable of understanding,
remembering, and carrying out short and simple instructions.
Id. at 34. After consulting the VE, the ALJ concluded at Step Four that Plaintiff “is
unable to perform any past relevant work[.]” Id. at 45. Finally, at Step Five, applying the
grids, the ALJ determined that “[b]ased on a residual functional capacity for the full
range of light work, considering the claimant’s age, education, and work experience, a
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finding of ‘not disabled’ is directed by Medical-Vocational Rule 202.14.” Id. at 46.
Accordingly, the ALJ determined that Plaintiff “has not been under a disability, as
defined in the Social Security Act, from May 1, 2005, through the date of th[e]
decision[.]” Id.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents the following issues for this court’s consideration in review of

the ALJ’s decision:
A.

Whether the ALJ “failed to comply with Social Security Ruling (‘SSR’) 8314 and/or SSR 85-15 by failing to cite examples of specific occupations
Ms. Ward can perform and the incidence of such work in the national
economy.”

B.

Whether the ALJ “failed to follow the ‘slight abnormality’ standard in
finding that Ms. Ward’s cervical degenerative disc disease is non-severe.”

C.

Whether the ALJ “failed to properly apply the pain standard.”

Pl.’s Br. (Doc. 12) at 5.
V.

DISCUSSION
A.

Whether the ALJ erred in failing to cite specific occupations.

Plaintiff first argues that the ALJ committed reversible error because, although he
found that “there are jobs that exist in significant numbers in the national economy that
the claimant can perform[,] . . . the ALJ failed to cite specific examples of jobs Ms. Ward
could perform and incidence of such work in the region in which she resides or in several
regions of the country.” Pl.’s Br. (Doc. 12) at 7 (internal quotation omitted). Plaintiff
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appears to believe that the ALJ was required to provide such examples of occupations
because, according to Plaintiff, the ALJ relied on a “vocational resource” to find that she
is not disabled and, therefore, SSRs 83-14 and 85-15 required the ALJ to identify and
discuss occupations which Plaintiff can perform given her RFC. Id. at 6-7. Defendant
claims that the ALJ was not required to cite examples of jobs Plaintiff can perform
because he relied upon the Grids in finding that she is not disabled. Def.’s Br. (Doc. 13)
at 4-5.
As the court explained previously, the ALJ may utilize either the Grids or a
vocational expert in performing his analysis under Step Five. See Phillips, 357 F.3d at
1239-40. As the court explained in Phillips,
The Medical Vocational Guidelines (“grids”) provide applicants with an
alternate path to qualify for disability benefits when their impairments do
not meet the requirements of the listed qualifying impairments. The grids
provide for adjudicators to consider factors such as age, confinement to
sedentary or light work, inability to speak English, educational deficiencies,
and lack of job experience. Each of these factors can independently limit
the number of jobs realistically available to an individual. Combinations of
these factors yield a statutorily-required finding of “Disabled” or “Not
Disabled.”
Id. at 1240. An ALJ’s use of a vocational expert as a resource in performing his Step
Five analysis is clearly contemplated as an alternative measure when the Grids are not
utilized by the ALJ. Id. The Eleventh Circuit has explained that “‘exclusive reliance on
the grids is not appropriate either when [the] claimant is unable to perform a full range of
work at a given residual functional level or when a claimant has non-exertional
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impairments that significantly limit basic work skills.’” Id. at 1242 (quoting Francis v.
Heckler, 749 F.2d 1562, 1566 (11th Cir. 1985)).
In this case, the ALJ indeed determined that “applying the Medical-Vocational
Rules directly supports a finding of ‘not disabled[.]’” Tr. 45. Specifically, the ALJ
found that “[b]ased on a residual functional capacity for the full range of light work,
considering the claimant’s age, education, and work experience, a finding of ‘not
disabled’ is directed by Medical-Vocational Rule 202.14.” Tr. 46. Plaintiff does not
argue that use of the grids by the ALJ was inappropriate because she is unable to perform
the full range of light work, as found by the ALJ, or because she has non-exertional
impairments that significantly limit her basic work skills.

Rather, Plaintiff is only

arguing that the ALJ should have queried a vocational expert about the types and number
of jobs available to her because she believes that the ALJ relied on such a vocational
resource at Step Five. As explained above, the ALJ plainly relied upon the Grids at Step
Five and, therefore, was not required to utilize a vocational source in finding Plaintiff not
disabled. Phillips, 357 F.3d at 1239-40. As such, the ALJ did not commit reversible
error in failing to question a vocational expert about the types and number of jobs
available to Plaintiff given her RFC.
B.

Whether the ALJ failed to follow the “slight abnormality” standard in
concluding that Plaintiff’s cervical degenerative disc disease is not a
severe impairment.

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Plaintiff next argues that the ALJ committed reversible error in failing to “discuss
or apply the ‘slight abnormality’ standard in regards to Ms. Ward’s cervical degenerative
disc disease.” Pl.’s Br. (Doc. 12) at 8. She also asserts that the ALJ “failed to include
any limitations in his RFC assessment resulting from Ms. Ward’s well documented
cervical degenerative disc disease.” Id. at 9. She claims that her “cervical degenerative
disc disease requires more severe limitations in the ALJ’s determination of her ability to
perform work, such as limiting [her] to less than light work[,]” and therefore should have
been recognized as a severe impairment by the ALJ and accounted for in his RFC
determination. Id. Defendant argues that, “[b]ecause the ALJ identified other severe
physical impairments and considered Plaintiff’s cervical spine condition when assessing
her RFC, any error in failing to find Plaintiff’s cervical degenerative disc disease as a
separate, severe impairment is no more than harmless error.” Def.’s Br. (Doc. 13) at 6.
Defendant also asserts that Plaintiff has failed to show that her cervical degenerative disc
disease indeed causes additional limitations on her ability to work beyond those described
in the ALJ’s RFC. Id. at 6-7.
As discussed above, the ALJ found Plaintiff to suffer from the severe impairment
of, inter alia, “lumbar degenerative disc disease.” Tr. 21. Although the ALJ did not also
expressly find Plaintiff’s cervical degenerative disc disease to constitute a severe
impairment, it is evident that the ALJ reviewed medical evidence documenting that
condition and various treatments that Plaintiff received to address it while discussing the
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conditions he found to be severe impairments. See Tr. 23-24 (discussing Plaintiff’s
follow-up visit with Dr. Shores in which he diagnosed “bilateral cervical facet
syndrome,” and subsequent “facet joint medial branch block” procedures administered to
Plaintiff on September 15, 1010, and September 29, 2010). See also Tr. 290-93. As the
ALJ noted, Tr. 24 & 37, Plaintiff advised Dr. Shores that these procedures resulted in
“100% relief in her neck pain after undergoing the confirmatory right C2-3, C3-4, and
C4-5 facet joint injections.” Tr. 271. Moreover, while Plaintiff correctly points out that
an April 15, 2010, MRI of her cervical spine “showed degenerative changes at C5/6,”
Pl.’s Br. (Doc. 12) at 8, the physician’s report states only that “there is mild focal spinal
stenosis present.” Tr. 335. The physician’s impression was that Plaintiff had “mild
subligamentous bulging of the disc” but that “intervertebral neural foramina are patent
bilaterally at this level. No abnormal signals from the conus medullaris are present.” Id.
The ALJ noted the physician’s impressions in his review of the medical evidence of
Plaintiff’s cervical degenerative disc disease.

Tr. 36.

As such, it is apparent that

objective medical evidence of the severity of Plaintiff’s cervical degenerative disc disease
was indisputably reviewed by the ALJ and furthermore indicated only that her condition
was “mild” and that her pain was substantially abated with treatment.
The great weight of evidence in the record, as well as the greater portion of
Plaintiff’s subjective complaints about her pain, concern her lower back, which the ALJ
did expressly find to be a severe impairment. Although Plaintiff asserts that her “record
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is replete with documentation of her cervical degenerative disc disease[,]” she points to
no records corroborating her assertion that this condition “requires more severe
limitations in the ALJ’s determination of her ability to perform work” or that it otherwise
“constitutes more than ‘slight abnormalities.’” Pl.’s Br. (Doc. 12) at 8-9. As such,
Plaintiff failed to carry her burden at Step Two to show that her cervical degenerative
disc disease constitutes a severe impairment, much less that it necessitates functional
limitations greater than those discussed in the ALJ’s RFC finding.
Furthermore, given that the ALJ did find that Plaintiff suffers from other severe
impairments, including, particularly, lumbar degenerative disc disease, any error by the
ALJ in failing to find Plaintiff’s cervical degenerative disc disease a severe impairment
was clearly harmless because, as discussed above, the record (see Tr. 36, 37) makes clear
that the ALJ considered Plaintiff’s cervical degenerative disc disease in the subsequent
sequential steps of his analysis when he articulated Plaintiff’s RFC. See Freeman v.
Comm’r, Soc. Sec. Admin., 2014 WL 6657482, *2 (11th Cir. Nov. 25, 2014) (“Although
the ALJ found that Mr. Freeman’s back pain was not a sever impairment, the record
demonstrates that she considered and discussed these symptoms at subsequent steps of
the sequential analysis. Accordingly, any error in failing to find that Mr. Freeman’s
lower back pain was severe was harmless because the symptoms were nonetheless
considered in the subsequent steps in the analysis.”).

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At bottom, two views of the ALJ’s consideration of Plaintiff’s cervical
degenerative disc disease are permitted by the record. On the one hand, the ALJ may
have failed, as a matter of mere oversight, to include Plaintiff’s cervical degenerative disc
disease among those impairments which he found to be severe. This supposition is
supported by the fact that he discussed the condition in the section of his opinion which
concludes “[b]ecause these impairments have more than a minimal effect on the
claimant’s ability to perform basic work activities, they are considered severe
impairments.” See Tr. 23-24, 32. On the other hand, the ALJ simply determined that
Plaintiff’s cervical degenerative disc disease is not a severe impairment because, in his
estimation, Plaintiff failed to show that it causes more than a minimal restriction in her
ability to do basic work activities. In either respect, the record is clear that the ALJ
considered the evidence related to the condition in formulating Plaintiff’s RFC. Plaintiff
has failed to demonstrate reversible error on the part of the ALJ.
C.

Whether the ALJ properly applied the pain standard.

Plaintiff’s final claim is that the ALJ failed to properly apply the pain standard.
She asserts that she “fulfills the pain standard given that there is evidence of an
underlying medical condition and that medical condition can reasonably be expected to
give rise to the claimed pain.” Pl.’s Br. (Doc. 12) at 12. She appears to contend that the
ALJ’s credibility finding with respect to her subjective testimony about pain
demonstrates the ALJ’s purportedly erroneous application of the pain standard. Id.
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Defendant maintains that the ALJ properly applied the pain standard, and, furthermore,
that the ALJ’s credibility findings respecting Plaintiff’s subjective testimony about her
pain are supported by substantial evidence. Def.’s Br. (Doc. 13) at 7-8.
The United States Court of Appeals for the Eleventh Circuit has articulated a
three-part “pain standard” to be utilized where a claimant attempts to establish disability
through subjective testimony about pain.
The pain standard requires: “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the
severity of the alleged pain; or (b) that the objectively determined medical
condition can reasonably be expected to give rise to the claimed pain.”
[Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002)]. If the ALJ
determined that the claimant has a medically determinable impairment that
could reasonably be expected to produce the pain or other symptoms, then
the ALJ evaluates the extent to which the intensity and persistence of those
symptoms limit her ability to work. 20 C.F.R. § 404.1529(b). At this
stage, the ALJ considers the claimant’s history, the medical signs and
laboratory findings, the claimant’s statements, statements by treating and
nontreating physicians, and other evidence of how the pain affects the
claimant’s daily activities and ability to work. Id. § 404.1529(a).
A claimant’s testimony supported by medical evidence that satisfies
the pain standard is sufficient to support a finding of disability. Foote v.
Chater, 67 F.3d 1553, 1561 (11th Cir.1995). If the ALJ decides not to
credit a claimant’s testimony about her symptoms, the ALJ “must articulate
explicit and adequate reasons for doing so. Failure to articulate the reasons
for discrediting subjective pain testimony requires . . . that the testimony be
accepted as true.” Id. at 1561–62.
McMahon v. Comm’r, Soc. Sec. Admin., 583 F.App’x 886, 893 (11th Cir. 2014).
Upon review of the ALJ’s decision, it is apparent that the ALJ properly applied the
pain standard. The ALJ recognized his obligation to apply and then accurately described
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the pain standard in his opinion. See Tr. 34. Having surveyed the objective medical
evidence and Plaintiff’s own prior statements and testimony about her pain, the ALJ
found as follows:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the [RFC
articulated by the ALJ].
Tr. 35.

As for the specific reasons why the ALJ partially discredited Plaintiff’s

complaints of disabling pain, the ALJ stated as follows:
The claimant has testified to inability to walk and stand for no more than
10-minutes. She reported being unable to pick up 10-pounds, and she was
unable to stoop, which is inconsistent with the medical evidence of record.
There are no treating or examining physicians that have restricted the
claimant from sitting, standing or lifting/carrying due to her medical
impairments. The claimant has rated her pain as 7/10 from the pain scale
with 10 being the worse pain, which the evidence of record documents
improvement with her medication regimen and epidural/block injections.
The claimant has stated that she can drive an automobile and she drives
maybe three times a week to appointments, grocery store and to the
pharmacy, which is inconsistent with total disability and consistent with the
limitations outlined in . . . the residual functional capacity for light work.
The claimant states that she can take care of her own personal care such as
bathing, dressing, and grooming. She can perform light housework,
grocery shop, cook, and she could do the laundry—all which are consistent
with the limitations recited in the residual functional capacity . . . . She has
denied being able to perform any yard work, which is inconsistent with her
reports to Dr. Shores that she felt well enough to mow her lawn to due [sic]
pain relief. . . . Although, the claimant does live in a rural area, she has a
car and she has admitted to driving to herself [sic] to appointments, grocery
shopping, and to the pharmacy. The claimant may not be able to do her
past work, but she admitted to working after her alleged onset date in her
prior job on and off because of her medical condition, which suggests that
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she can perform the work activity as outlined in the residual functional
capacity of light work . . . .
Tr. 43-44. Ultimately, the ALJ concluded that “the claimant has overstated the extent of
her medical condition and functional restrictions. While the claimant’s condition may
reasonably be expected to result in mild to moderate deficits, the evidence as a whole
does not support a finding that the claimant experiences the disabling limitations as she
so alleged.” Tr. 44.
Rather than challenging any of the specific reasons the ALJ articulated for
partially discrediting Plaintiff’s testimony, Plaintiff simply states in a conclusory fashion
that
Ms. Ward’s complaints of severe pain are consistent with the severe
impairments the ALJ found Ms. Ward to be suffering from and with the
medical record. In fact, Ms. Ward satisfies the pain standard given that it
does not require objective proof of the pain itself. As such, Ms. Ward
satisfies the requirement of an underlying medical condition that could
reasonably be expected to produce her pain.
Pl.’s Br. (Doc. 12) at 12. Of course, there is no dispute that the ALJ indeed found that
Plaintiff satisfied the pain standard because he determined that the “claimant’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms[.]” Tr. 35. But, contrary to Plaintiff’s apparent belief, this finding, alone,
does not compel the conclusion that Plaintiff is disabled. Rather, as the Eleventh Circuit
has made clear, once the ALJ determines that a claimant’s impairments might reasonably
be expected to cause the sort of pain described by the claimant, the ALJ is required to
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“evaluate[] the extent to which the intensity and persistence of” the claimant’s alleged
pain “limit her ability to work.” McMahon, 583 F.App’x at 893 (citing 20 C.F.R. §
404.1529(b)). To do this, the ALJ does not rely on just the Plaintiff’s statements. Rather,
“the ALJ considers the claimant’s history, the medical signs and laboratory findings, the
claimant’s statements, statements by treating and nontreating physicians, and other
evidence of how the pain affects the claimant’s daily activities and ability to work.” Id.
(citing 20 C.F.R. § 404.1529(a)). As recounted above, the ALJ exhaustively performed
this analysis, Plaintiff has not identified any singular instance in which the ALJ
improperly relied upon record evidence, and, moreover, the ALJ’s credibility findings are
supported by substantial evidence in the record. As such, the ALJ did not fail to properly
apply the pain standard and did not commit reversible error in rendering his credibility
findings regarding Plaintiff’s subjective complaints of disabling pain.
VI.

CONCLUSION
The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is AFFIRMED.
separate judgment will issue.
Done this 27th day of February, 2015.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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A