Qualls v. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER AFFIRMING the decision of the Commissioner, as further set out. Signed by Honorable Judge Gray M. Borden on 1/30/17. Also mailed to SSA Office of Hearings and Appeals & SSA Chief Judge.(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
CATHY DIANE QUALLS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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CASE NO.: 1:15-cv-421-GMB

MEMORANDUM OPINION AND ORDER
Plaintiff Cathy Diane Qualls commenced this action on June 15, 2015, seeking
judicial review of a final adverse decision of the Commissioner of Social Security
denying her application for a period of disability, disability insurance benefits, widow’s
disability benefits, and supplemental disability insurance benefits under Titles II and XVI
of the Social Security Act. Doc. 1. The case is ripe for review pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). The parties have consented to the entry of a final judgment by
the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Rule
73.1 of the Local Rules for the United States District Court for the Middle District of
Alabama. Docs. 16 & 17. Based upon a review of the parties’ briefs, the evidentiary
record, and the relevant authority, the court finds that, for the reasons explained below,
the Commissioner’s decision is due to be AFFIRMED.
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin, Acting
Commissioner of Social Security, as the defendant in this lawsuit. No further action needs to be taken to
continue this lawsuit pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The Clerk
of Court is DIRECTED to take the appropriate steps to reflect this change on the docket sheet.

I. STANDARD OF REVIEW
The court reviews a social security case to determine whether the Commissioner’s
decision “is supported by substantial evidence and based upon proper legal standards.”
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The court “may not decide the
facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner,” but rather it “must defer to the Commissioner’s decision if it is
supported by substantial evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997)
(internal quotation marks omitted). Indeed, the court must affirm the Commissioner’s
decision “if it is supported by substantial evidence and the correct legal standards were
applied.” Kelly v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999) (citing Graham v. Apfel,
129 F.3d 1420, 1422 (11th Cir. 1997)).
“Substantial evidence is more than a scintilla—i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion.”
Jones ex rel. T.J.J. v. Astrue, 2011 WL 1706465, at *1 (M.D. Ala. May 5, 2011) (citing
Lewis, 125 F.3d at 1440). The court must scrutinize the entire record to determine the
reasonableness of the decision reached. Hale v. Bowen, 831 F.2d 1007, 1010 (11th Cir.
1987). “If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as a finder of
fact, and even if the court finds that the evidence preponderates against the
Commissioner’s decision.” Jones, 2011 WL 1706465 at *2 (citing Edwards v. Sullivan,
937 F.2d 580, 584 n.3 (11th Cir. 1991)). The court will reverse the Commissioner’s
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decision on plenary review if the decision applies incorrect law, or if the decision fails to
provide the court with sufficient reasoning to determine that the Commissioner properly
applied the law. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991); Jones,
2011 WL 1706465 at *2 (citing Keeton v. Dep’t of Health & Human Servs., 21 F.3d
1064, 1066 (11th Cir. 1994)).

There is no presumption that the Commissioner’s

conclusions of law are valid. Id.
II. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show 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 12 months.” 42 U.S.C. §§ 416(i)
& 423(d)(1)(A). A physical or mental impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrated by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3).

Qualls bears the burden of proving that she is disabled, and she is

responsible for producing evidence to support her claim. Ellison v. Barnhart, 355 F.3d
1272, 1276 (11th Cir. 2003).
Determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a). Specifically, the Commissioner must determine in
sequence:
(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment severe?

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(3) Does the claimant’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the claimant unable to perform his or her former occupation?
(5) Is the claimant unable to perform any other work within the economy?
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (quoting 20 C.F.R. §§ 416.920(a)−(f)).
“Once the finding is made that a claimant cannot return to prior work the burden of proof
shifts to the Secretary to show other work the claimant can do.” Foote v. Chater, 67 F.3d
1553, 1559 (11th Cir. 1995) (citing Gibson v. Heckler, 762 F.2d 1516 (11th Cir. 1985)).
III. DISCUSSION
A.

Factual and Procedural Background
Qualls is 55 years old. Doc. 19-8. She has a 5th-grade education with past work

experience as a waitress, short-order cook, garment sorter, and daycare worker. Doc.
19-8.
Qualls applied for a period of disability, disability insurance benefits, and
supplemental security insurance benefits on February 13, 2007, claiming a disability
onset date of December 19, 2003 due to back problems, pain in both knees, neuropathy in
both feet, and carpal tunnel in both hands. Docs. 19-2, 19-4, 19-5 & 19-8. Qualls’
applications were denied at the administrative level. Doc. 19-3. Qualls requested and

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received a hearing before an Administrative Law Judge (“ALJ”),2 who denied her claims
on July 14, 2009. Doc. 19-2. Qualls sought review of the ALJ’s decision by the Appeals
Council, and that request was denied on May 28, 2010. Doc. 19-2. Qualls appealed the
ALJ’s July 14, 2009 decision to this court, which reversed and remanded her claims.3
Doc. 19-8.
Following remand, the Appeals Council vacated the ALJ’s July 14, 2009 decision
and remanded the case back to the ALJ for additional proceedings consistent with the
district court’s order. Docs. 19-8 & 19-9. A second hearing was held before the ALJ on
May 15, 2012,4 and Qualls’ claims were denied for the second time on July 20, 2012.5
Doc. 19-8. Qualls filed exceptions to the ALJ’s decision with the Appeals Council, but
they were untimely, and thus were not considered by the Appeals Council. Doc. 19-8. As
a result, the ALJ’s July 20, 2012 decision became the final decision of the Commissioner,
and this is the decision that is currently before the undersigned for review. Doc. 19-8.
B.

Issues Presented
Qualls presents the court with two issues for review: (1) whether the ALJ erred by

failing to question Qualls’ daughter at the May 15, 2012 hearing concerning Qualls’
2

Qualls chose to appear and to testify at this hearing without the assistance of an attorney or other
representative. Doc. 19-2.
3
Specifically, United States Magistrate Judge Charles S. Coody entered an order reversing and remanding
the ALJ’s July 14, 2009 decision to the Commissioner with instructions for the Commissioner to include
Qualls’ neuropathy as a severe impairment and also to account for the functional limitations of her
neuropathy at steps four and five of the sequential analysis when reevaluating her disability claims. See
Qualls v. Astrue, Civil Action No. 1:10-cv-651-CSC (M.D. Ala. Jan. 17, 2012).
4
Qualls was represented by her current counsel at this hearing. Doc. 19-8.
5
The ALJ’s July 20, 2012 decision explains that after Qualls filed her February 13, 2007 applications, she
filed a second Title XVI claim for benefits on July 22, 2010, and an additional claim for Title II widow’s
benefits on December 13, 2011. Docs. 19-8 & 19-9. The ALJ’s July 20, 2012 decision resolves all of
those claims. Doc. 19-8.

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impairments; and (2) whether the ALJ erred by failing to comply with the Eleventh
Circuit’s pain standard. Doc. 15. For the reasons that follow, the court finds that the
ALJ’s decision is due to be affirmed on both issues.
Qualls’ argument as to the first issue—whether the ALJ erred by failing to elicit
testimony from her daughter at the May 15, 2012 hearing—can only be described as
perfunctory. Qualls’ brief on this issue contains a single sentence of argument—“Ms.
Qualls contends that her daughter was at the hearing held on May 15, 2015, and that the
Judge was well aware that she was available for questioning”—and even that sentence
fails to reference the correct hearing date (i.e., May 15, 2012).6 Doc. 15 at 6. While
Qualls provides the court with a single case citation to Brown v. Shalala, 44 F.3d 931
(11th Cir. 1995), she makes no effort to explain how or why the specific facts and
circumstances of that case compel a similar result here.7 Doc. 15 at 6. There are also no
citations to the record in Qualls’ brief on this issue, despite the court’s June 24, 2015
order directing that
Claims or contentions by the plaintiff alleging deficiencies in the ALJ’s
consideration of claims or alleging mistaken conclusions of fact or law and
contentions or arguments by the Commissioner supporting the ALJ’s
conclusions of fact or law must include a specific reference, by page
number, to the portion of the record which (1) recites the ALJ’s
6

Another example of the perfunctory nature of Qualls’ brief is her table of contents, which indicates that
every section of the brief is located on “PAGE,” but no actual page numbers are provided. Doc. 15 at 2.
In fact, Qualls’ brief contains no page numbers at all. Doc. 15.
7
The totality of Qualls’ discussion of Brown is as follows:
The Eleventh Circuit has held that the ALJ must elicit clearly relevant and readily
available testimony, Brown v. Shalala, 44 F.3d 931, 936 (11th Cir. 1995). The Court
criticized the ALJ’s failure to question the claimant’s daughter concerning her
complaints, noting the importance of the testimony of family and friends in a case where
the claimant “had great difficulty conveying with any precision” the way in which her
various subjective ailments affect her ability to work. Id.
Doc. 15 at 6.

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consideration or conclusion and (2) which supports the party’s claims,
contentions or arguments.
Doc. 15 at 6; Doc. 3 at ¶ 6. Given the wholly conclusory nature of Qualls’ argument, her
failure to support this argument with any citations to the record despite the court’s order
to the contrary, and her failure to develop this argument in any other meaningful way, the
court finds that this argument is “waived for insufficient development.” See Doc. 18 at 5;
Outlaw v. Barnhart, 197 F. App’x 825, 828 n.3 (11th Cir. 2006) (finding that claimant
waived issue without elaboration or citation to authority for the claim); Nelson v. Astrue,
2013 WL 1909419, at *6 (N.D. Ala. May 6, 2013) (holding that argument was too
undeveloped for the court to make any determination when claimant failed to explain
how the ALJ erred or to present any supporting argument or legal authority for the
claim); Kuykendall v. Astrue, 2012 WL 3777004, at *3 (N.D. Ala. Aug. 23, 2012)
(“Given the conclusory nature of Plaintiff’s arguments and his failure to support his
position with citations to the evidence, this Court is inclined to agree with the
Commissioner that Plaintiff’s arguments should be deemed waived.”) (internal quotation
marks omitted).
However, even if this issue were not waived, it would still fail on its merit for
several reasons. First, Qualls’ argument that the ALJ was “well aware” that her daughter
was available to testify at the May 15, 2012 hearing is not supported by the record. The
only evidence before the ALJ at the May 15, 2012 hearing regarding Qualls’ daughter
was that she drove Qualls to the hearing. Doc. 19-8 at 56 (testifying, “My daughter
brought me down here today”). However, Qualls’ daughter is not on the list of parties

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present at the hearing, neither Qualls nor her attorney stated or otherwise indicated during
the hearing that Qualls’ daughter was present and willing to testify at the hearing, and
there is no other evidence in the record to suggest that the ALJ knew or should have
known that Qualls’ daughter was present and willing to testify at the hearing. Doc. 19-8
at 34. Despite Qualls’ urging, the court declines to presume that Qualls daughter was
readily available to testify at the May 15, 2012 hearing simply because she drove Qualls
to the hearing.
Qualls’ reliance on Brown v. Shalala is also misplaced, as that case faulted an ALJ
who failed to question a claimant’s husband about her impairments when the claimant
“had great difficulty conveying with any precision the manner in which her various
subjective ailments affected her ability to engage in substantial gainful activity.” 44 F.3d
at 936.

The record in this case, however, shows that Qualls did not have “great

difficulty” conveying the extent of her ailments to the ALJ; rather, she testified clearly
and extensively about her impairments and how they limited her functioning. Doc. 19-8
at 44-62. Moreover, the decision in Brown was based in part on the fact that the
claimant was not represented by an attorney during her hearing before the ALJ. See 44
F.3d at 936. The same cannot be said here, as Qualls was represented at the May 15,
2012 hearing by counsel who could have, but simply did not, offer testimony from her
daughter about her impairments and how they limited her functioning. Doc. 19-8. The
court will not criticize the ALJ for failing to act as Qualls’ counsel in this regard.
Accordingly, for these reasons, the court finds that the ALJ did not err in failing to
question Qualls’ daughter at the May 15, 2012 hearing.
8

The court reaches a similar conclusion on the second issue raised by Qualls
concerning the ALJ’s application of the Eleventh Circuit’s pain standard.

Qualls

contends that the ALJ erred by failing to apply proper legal standards in assessing her
subjective complaints of pain and also by failing to articulate adequate reasons for
rejecting her subjective testimony. Doc. 15 at 7. The Commissioner contends that the
ALJ applied the proper legal standards when evaluating Qualls’ subjective complaints of
pain and that the ALJ’s decision is supported by substantial evidence. After carefully
reviewing the record, the court agrees with the Commissioner that the ALJ analyzed
Qualls’ subjective complaints of pain under the proper legal standards and that her
decision is supported by substantial evidence.
The Eleventh Circuit articulated the “pain standard” in Holt v. Sullivan, 921 F.2d
1221 (11th Cir. 1991), which applies when a disability claimant attempts to establish a
disability through her own testimony of pain or other subjective symptoms.

This

standard requires
(1) evidence of an underlying medical condition and either (2) objective
medical evidence that confirms the severity of the alleged pain arising from
that condition or (3) that the objectively determined medical condition is of
such a severity that it can be reasonably expected to give rise to the alleged
pain.
Id. (internal citations omitted). If a claimant testifies as to her subjective complaints of
disabling pain or other symptoms, as Qualls has here, “the ALJ must clearly ‘articulate
explicit and adequate reasons’ for discrediting the claimant’s allegations of completely
disabling symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting
Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995)). “Although this circuit does not
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require an explicit finding as to credibility, . . . the implication must be obvious to the
reviewing court.” Id. (internal quotation marks omitted). “The credibility determination
does not need to cite particular phrases or formulations but it cannot merely be a broad
rejection which is not enough to enable [the district court] to conclude that [the ALJ]
considered her medical condition as a whole.” Id. (internal quotation marks omitted).
Qualls contends that the ALJ erred in applying the Eleventh Circuit’s pain
standard for two reasons. First, Qualls contends that the ALJ erred in assessing her
subjective complaints of pain because “the proper standard [(the Holt standard)] is not
ever referenced in the administration decision.” Doc. 15 at 7. Second, Qualls contends
that the “ALJ failed to set forth adequate reasons for rejecting [her] subjective
complaints.” Doc. 15 at 7. While these arguments are more developed than Qualls’
argument regarding the ALJ’s failure to obtain testimony from her daughter, they still
lack merit.
While there is no dispute that the ALJ does not specifically cite or refer to the
language of Holt’s three-part test in her decision denying Qualls’ claims, her findings and
discussion indicate that the standard was applied. See Wilson v. Barnhart, 284 F.3d 1219
(11th Cir. 2002); Johnson v. Comm’r, Soc. Sec. Admin., 618 F. App’x 544 (11th Cir.
2015). In Wilson v. Barnhart, the Eleventh Circuit held that an ALJ properly applied the
Holt pain standard, even though the ALJ did not cite or refer to the language of that test,
when the ALJ cited 20 C.F.R. § 404.1529, which contained the same language regarding
the subjective pain testimony that the Circuit interpreted when initially establishing its
three-part pain standard. 294 F.3d at 1225–26. Like in Wilson, the ALJ here cited 20
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C.F.R. §§ 404.1529 and 416.15298 in denying Qualls’ claims. Doc. 19-8 at 20. When
combining those references with her findings and discussion, “it is clear that the ALJ
applied this Circuit’s pain standard.” Wilson, 294 F.3d at 1226; Johnson, 618 F. App’x at
549.
It is also evident from the ALJ’s extensive analysis that she considered whether
there existed an underlying medically determinable physical or mental impairment and
whether Qualls’ statements about the intensity, persistence, and functionally-limiting
effects of her pain were substantiated by objective medical evidence or whether the
objectively determined medical condition could reasonably be expected to give rise to
Qualls’ claimed pain. Indeed, the ALJ specifically concluded:
Based upon the longitudinal medical record, I find that the claimant’s
medically determinable impairments could reasonably be expected to cause
some of her 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 above residual
functional capacity assessment.9
Doc. 19-8 at 26. In Johnson v. Commissioner, Social Security Administration, the Circuit
found that a similar statement by an ALJ supported its conclusion that the pain standard
was properly applied, even though the ALJ’s decision did not cite or refer to Holt’s
three-part test. 618 F. App’x at 550.
The ALJ also clearly articulated the bases for her findings and her reasons for
discrediting Qualls’ subjective complaints of pain. For example, the ALJ found that
8

Both of these regulations address how the Administration evaluates a claimant’s symptoms, including
pain.
9
The ALJ concluded that Qualls had the residual functional capacity to perform less than the full range of
light work with certain limitations. Doc. 19-8 at 19–20.

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“[w]hile the clinical findings do provide some support for the claimant’s subjective
complaints, the record contains a considerable number of findings upon clinical
examination that I find inconsistent with a claim of inability to perform any sustained
work activity.” Doc. 19-8 at 22. The ALJ followed that finding with an extensive
discussion of the objective medical evidence and how this evidence conflicted with
Qualls’ subjective complaints, explaining, among other things:
The claimant has complained of significant and ongoing pain in her back,
knees, hands/wrists and neuropathy symptoms, but there is simply no
objective evidence from her medical records or from the examinations
performed by Dr. Arnold or Dr. Ellis, to support her statements concerning
the severity and limiting affects [sic] of her physical complaints. The
treatment records from the claimant’s primary care physician (Dr. Cook)
from 1999 through 2007, indicate no physical problems of great
significance. The claimant would see Dr. Cook about once a year, with
some complaints of back pain or joint pain, but without too much in the
way of actual findings or treatment. The claimant has had numerous visits
to the ER at Medical Center Enterprise, with ongoing complaints of back,
knee and neuropathy pain, but her lumbar and knee x-ray studies showed
no abnormalities.
While the claimant’s degenerative disc disease,
arthralgias, neuropathy, obesity and/or reported history of carpel tunnel
syndrome are supported by the record, from a physical and/or exertional
point of view the medical evidence is pretty mild. This is especially
evident through Dr. Arnold’s and Dr. Ellis’ examinations. Both doctors
observed that the claimant could ambulate effectively without an assistive
device; she demonstrated normal extremity ranges of motion and strength;
Romberg and Phalen’s were negative; and straight leg raises were negative
bilaterally.
Doc. 19-8 at 23. The ALJ also noted that, despite Qualls’ allegations of disabling
symptoms, she admitted that she lives alone; she can read, write, and perform simple
math; she can drive a car, care for her personal needs, and perform household chores such
as washing dishes, sweeping, mopping, and doing laundry; she gets along well with
others; she can do her own grocery shopping; she goes to church every Sunday when she
12

is physically able; and she reads and watches television. Doc. 19-8 at 26. According to
the ALJ, “[t]hese admitted abilities, are hardly suggestive of total disability and when the
above noted objective evidence is considered.” Doc. 19-8 at 26. As a result, “it is clear
that the claimant would not be precluded from performing the physical and mental
requirements of a less than full range of light and unskilled work, on a regular and
sustained basis.” Doc. 19-8 at 26.
On this record, the court does not find that the ALJ erred in assessing Qualls’
complaints of pain or other subjective symptoms, or otherwise failed to set out on the
record the reasons for discrediting Qualls’ testimony about her limitations. Simply put,
Qualls failed to present evidence sufficient to satisfy the elements of the pain standard,10
and the record demonstrates that the ALJ’s determination on this issue is supported by
substantial evidence and resulted from a correct application of the law. See Johnson, 618
F. App’x at 449–551.
IV. CONCLUSION
The district court’s standard of review is to determine whether the ALJ’s decision,
as a whole, was supported by substantial evidence in the record. See Dyer, 395 F.3d at
1211. The court concludes that, for the foregoing reasons, the ALJ’s decision to deny
Qualls’ claims was supported by substantial evidence. Therefore, it is ORDERED that
the decision of the Commissioner is AFFIRMED.
10

With respect to the ALJ’s rejection of Qualls’ testimony regarding the extent of her disabling pain, it
appears from Qualls’ brief that the only specific findings she takes issue with are the ALJ “merely
not[ing] claimant doesn’t use any assistive devices and doesn’t have any medical records,” but even a
cursory review of the ALJ’s decision shows that these were just a few of the many reasons given by the
ALJ for rejecting Qualls’ testimony and ultimately concluding that she was not disabled within the
meaning of Social Security law. Doc. 15 at 7; Doc. 19-8.

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A final judgment will be entered separately.
DONE this 30th day of January, 2017.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE

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