Patterson v. Colvin (CONSENT)

Filing 15

MEMORANDUM OPINION: The court has carefully and independently reviewed the record and concludes that substantial evidence supports the ALJs conclusion that plaintiff is not disabled. Thus, the court concludes that the decision of the Commissioner is due to be affirmed. A separate order will be entered. Signed by Honorable Judge Charles S. Coody on 9/12/2017. (dmn, )

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
VICKE PIKE PATTERSON
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant

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CIV. ACT. NO. 2:16-cv-49-CSC
(WO)

MEMORANDUM OPINION

I. Introduction
The plaintiff applied for disability insurance benefits pursuant to Title II of
the Social Security Act, 42 U.S.C. § 401 et seq., alleging that she was unable to
work because of a disability.

Her application was denied at the initial

administrative level. The plaintiff then requested and received a hearing before an
Administrative Law Judge (“ALJ”). Following the hearing, the ALJ also denied
the claim. The Appeals Council rejected a subsequent request for review. The
ALJ's decision consequently became the final decision of the Commissioner of
Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th

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Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103296, 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.

Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C. §§
405 (g) and 1383(c)(3).2 Based on the court's review of the record in this case and
the briefs of the parties, the court concludes that the decision of the Commissioner
will be affirmed.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability 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...

To make this determination3 the Commissioner employs a five step,
sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(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?
(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?

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

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Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United
States Magistrate Judge.

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

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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).4

The standard of 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); Ingram v. Comm’r of Soc. Sec. Admin.,
496 F.3d 1253, 1260 (11th Cir. 2007).
scintilla, but less than a preponderance.

“Substantial evidence is more than a
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); Crawford v. Comm'r of Soc. Sec., 363 F.3d
1155, 1158–59 (11th Cir. 2004). A reviewing court may not look only to those
parts of the record which supports 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, 1180 (11th Cir.
1986).

The court “may not decide the facts anew, reweigh the evidence, or

substitute . . . [its] judgment for that of the [Commissioner].” Phillips v. Barnhart,
357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration in original) (quotation marks
omitted).
[The court must, however,] . . . scrutinize the record in its entirety to
determine the reasonableness of the [Commissioner's] . . . factual findings .
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McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) 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) (Unit A).

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. . 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).
III. The Issues

A. Introduction. The plaintiff was over the age of 55 years at the time of
the hearing before the ALJ. She has a General Equivalency Degree (“GED”) and
three years of college. The plaintiff’s prior work experience includes work as a
certified nursing assistant, a general office clerk and a home health aide. (R. 4142). Following the administrative hearing, the ALJ concluded that the plaintiff has
severe impairments of “status post closed reduction, percutaneous pinning of left
distal radius fracture; status post left shoulder arthroscopy with debridement and
labral repair; status post left hip replacement in 2003; osteoarthritis of the left hip;
degenerative disc disease of the cervical and lumbar spine, status post anterior
cervical discectomy and fusion at C4-5 and C5-6 in 1987 and status post fusion at
U-5 and LS-Sl.” (R. 29) (emphasis in original). Nonetheless, the ALJ concluded
that the plaintiff was not disabled because she has the residual functional capacity
to perform sedentary work for which she “has acquired work skills from past
relevant work that are transferable to other occupations with jobs existing in
significant numbers in the national economy.” (R. 45).

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B.

The Plaintiff's Claims.

The plaintiff presents three issues for

consideration by the court:
(1)

The ALJ erred when he found the plaintiff’s pain symptoms were not
credible and held that the plaintiff was not disabled.

(2)

The ALJ erred in finding that there was not significant vocational
adjustment to transition into other jobs to meet the medical-vocational
guidelines (“grids”); and

(3)

The ALJ erred when he substituted his own opinion for that of the
vocational expert.

(Doc. # 12, Pl’s Br. at 3-4).
IV. Discussion
A. Introduction. A disability claimant bears the initial burden of
demonstrating an inability to return to her past work. Lucas v. Sullivan, 918 F.2d
1567 (11th Cir. 1990). In determining whether the claimant has satisfied this
burden, the Commissioner is guided by four factors: (1) objective medical facts or
clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of
pain and disability, e.g., the testimony of the claimant and her family or friends;
and (4) the claimant’s age, education, and work history. Tieniber v. Heckler, 720
F.2d 1251 (11th Cir. 1983). The ALJ must conscientiously probe into, inquire of
and explore all relevant facts to elicit both favorable and unfavorable facts for
review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981). The ALJ

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must also state, with sufficient specificity, the reasons for his decision referencing
the plaintiff’s impairments.
Any such decision by the Commissioner of Social Security which
involves a determination of disability and which is in whole or in part
unfavorable to such individual shall contain a statement of the case, in
understandable language, setting forth a discussion of the evidence,
and stating the Commissioner’s determination and the reason or
reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphases added). Within this analytical framework, the
court will address the plaintiff’s claims.
B. The Plaintiff’s Pain Symptoms. The plaintiff argues that although the
ALJ recognized that she experienced pain, the ALJ’s conclusion that the effects of
the pain were “inconsistent, exaggerated and not entirely credible” (R. 32) is
erroneous because it is inconsistent with the medical evidence. In other words, the
plaintiff argues that the ALJ erred when he found her pain symptoms not credible.
To evaluate attempts to establish disability through testimony about pain and
subjective symptoms, a three-part pain standard is applied. 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) evidence that the objectively determined medical condition is of such a
severity that it can be reasonably expected to give rise to the alleged pain. Wilson
v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). A reversal of the ALJ's decision
is warranted if the decision contains no evidence of the proper application of the
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three-part standard. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
However, an ALJ only needs to make it apparent that he was mindful of the pain
standard when coming to his decision. Wilson, 284 F.3d at 1225-26. If the ALJ
discredits subjective testimony, he must articulate explicit and adequate reasons for
doing so. Id. The ALJ is not required to specifically refer to every piece of
evidence to explain his credibility finding, so long as the decision shows
consideration of the claimant's condition as a whole. Mitchell v. Comm'r, Soc. Sec.
Admin., 771 F.3d 780, 782 (11th Cir. 2014).
While characterizing application of the pain standard as a “two-step
process,” the ALJ explicitly recognized the application of the standard. (R. at 3031). On that score, nothing more is required. Further, after describing in detail
inconsistencies in the plaintiff’s testimony, the ALJ found that
After careful consideration of the evidence, the undersigned finds that
the claimant's medically determinable impairments could reasonably
be expected to cause some degree of some of the alleged symptoms;
however, the claimant's statements (and those of her husband)
concerning the intensity, persistence and limiting effects of these
symptoms are inconsistent, exaggerated and not entirely credible for
the reasons explained in this decision.
(R. 32)
The court has carefully reviewed the record in this case including the
medical evidence. The ALJ’s opinion reflects a thorough review and consideration

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of that evidence. Moreover, the ALJ articulated explicit and adequate reasons for
rejecting the plaintiff’s subjective testimony.
“On September 25, 2012, in connection with her application for Title
II disability benefits, the “claimant provided responses to a “Disability
Report-Adult” questionnaire (Exhibit IE). It should be noted at this
point that the claimant's responses to the questionnaire were not
entirely truthful and that fact has had a significant effect on the
evaluation of her credibility in this case. The claimant was asked
when she stopped working. She replied, “05/01/2012.” She was then
asked to state why she stopped working on that date. She replied,
“Because of my condition.” In this regard, it is also noted that, during
a consultative psychological examination on December 28, 2012, the
claimant stated that her last employment ended on April 20, 2012,
“when she had shoulder surgery and never went back” (Exhibit 9F).
Further, during the hearing on February 10, 2014, the claimant
initially stated, under oath, that she had stopped working in April
because of a torn shoulder and that she had not worked since. In fact,
the claimant did not stop working because of her condition. As she
subsequently admitted during the hearing, the claimant's last
employment at a mental health center ended when she was terminated
for striking a patient.
The disability report questionnaire also requested that the claimant
state the highest grade of school completed. The claimant responded,
“GED.” The claimant was then asked if she had completed any type
of specialized job training, trade or vocational school. She responded,
“No.” While it appears that the claimant did obtain a GED after
finishing the 10th grade, she subsequently admitted that she had three
years of college (Exhibit 9F) and, during the hearing admitted that she
had received training for, and was, in fact, a Certified Nursing
Assistant.
The fact that the claimant provided inaccurate information on matters
integral to determining disability suggests that much of what the
claimant has alleged during the course of this case may be similarly
unreliable.
(R. 28-29)
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In further support of her contentions about pain, the plaintiff argues that
because she has suffered from migraine headaches since 2009, “it would be
appropriate to infer that there are days in which the Plaintiff suffered migraine
headaches but did not visit the emergency room. (Doc. # 12 at 5). The ALJ found
that the plaintiff’s headaches were not a severe impairment, a finding which the
plaintiff does not challenge. Regardless, a close review of the ALJ’s opinion
shows that he did consider the effects of the plaintiff’s headaches in his
consideration of the combined effects of her impairments. Other than the plaintiff’s
own testimony which the ALJ discounted for adequate reasons, there is no
evidence that the plaintiff had headaches for which she did not seek medical help.
In short, the ALJ properly considered the effects of the plaintiff’s pain on
her ability to work. His conclusions are supported by substantial evidence.
C. Vocational Adjustment. Here is what the plaintiff argues:
Here, the Plaintiff meets the age and education requirements for the
Grids. Plaintiff was age 55 on the date of her Alleged Onset Date and
is a high school graduate by GED. (R. 42, 88). The Plaintiff acquired
work skills from past relevant work. (R. 42). The ALJ determined that
the exertional level for the Plaintiff would be sedentary. (R. 90-91).
However, the ALJ found that the Plaintiff's acquired work skills from
past relevant work were transferable to other occupations existing in
significant numbers in the national economy. (R. 43). This conclusion
was error by the ALJ because Plaintiff is not capable of performing
the proposed jobs, and Plaintiff should have been found to be
disabled.
(Doc. # 12 at 7)

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Patterson argues that because her skills involve medical knowledge she
would be required to have significant retraining to perform other jobs.

This

argument lacks merit. The plaintiff by her own admission at the hearing before the
ALJ has three years of college education.
emergency room clerk, registering patients.

(R. 61).
(R. 62).

She also worked as an
The vocational expert

classified this job as a general office clerk which the vocational expert said
involved writing, spelling, computational and speaking skills. “[T]he most basic
level of organizational skills . . . ” (R. 93-94). The vocational expert identified
several jobs to which Patterson’s skills would directly transfer. (R. 94-95). It is
ludicrous to argue that Patterson’s three years of college in conjunction with the
jobs she held did not give her skills to work as a telemarketer, a clerical sorter or a
telephone answering service operator.
D. Substitution of the ALJ’s Opinion for the Vocational Expert’s
Opinion.1
During the hearing, the vocational expert testified that skills Patterson
gained from her work in the medical field were “not immediately readily”
transferable.

(R. 92).

Because of this, Patterson contends that the ALJ’s

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The plaintiff claims that the ALJ erred when discussing the exertional level of the plaintiff’s
past relevant work. “The VE was attempting to classify whether the past relevant work was
performed at medium pursuant to the DOT or was performed at light. (R. 87). When the VE
wanted to ask the Plaintiff for additional information that would allow the VE to classify the job
correctly, the ALJ summarily rejected the VE's request to question the Plaintiff. (R. 87).” (Doc.
# 12 at 9-10). If this was error, it was harmless. The ALJ found that the plaintiff was restricted
to sedentary work so the exertional level of the plaintiff’s prior work is irrelevant.

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conclusion that she had transferable skills was erroneous. The ALJ’s conclusion
was related to medical field skills. As for clerical skills, here is what the ALJ said:
Based on the testimony of the vocational expert, the undersigned
concludes that the claimant has acquired work skills from past
relevant work that are transferable to other occupations with jobs
existing in significant numbers in the national economy. The
vocational expert testified the claimant's previous work is so similar to
the jobs recited above that the claimant would need to make very
little, if any, vocational adjustment in terms of tools, work processes,
work settings, or the industry.
However, the undersigned does note that in response to additional
questioning from the representative, the vocational expert appears to
have adopted a position of equivalence in his responses. The
undersigned does not believe that a person (particularly one with the
claimant's overall vocational profile) with skills developed as general
office clerk in a medical setting would experience more than “very
little” vocational adjustment in terms of tools, work processes, work
setting, or industry, in assuming the role of a telemarketer, sorter,
clerical, or telephone answering service operator. By way of clear
example, the undersigned notes that the claimant has extensive and
noteworthy experience in the medical field. It is nonsensical to
suggest that the skills she developed as a general office clerk, medical
forum, would preclude her from immediately, if not instantly,
assuming the duties of a sorter, clerical or telephone answering
service operator working in a medical forum. Therefore, based on the
totality of the evidence as well as the vocational expert's initial
testimony regarding the availability of such positions, the undersigned
finds unequivocally that the claimant is cable of performing said jobs.
(R. 43).
The ALJ is correct that the vocational expert’s responses about
transferability of Patterson’s clerical skills was equivocal. In this regard, the ALJ
is responsible for determining whether a claimant is able to perform work that

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exists in the national economy. See 20 C.F.R. §§ 404.1520(a)(4). Patterson is over
age 55. Thus, her skills are transferable to sedentary work only if the work is so
similar to her previous work that she would need to make very little, if any,
vocational adjustment in terms of tools, work processes, work settings, or the
industry. 20 C.F.R. § 404.1568.
Patterson testified that she didn’t think she could do the job of clerical sorter
because of her nerves, not because she lacked applicable skills. (R. 98). Then,
Patterson said that she didn’t know if she could do the computer work anymore.
“Because I forget and then I -- sometimes I may not enter correctly or you know,
somebody has to show or tell me something several times.” (Id.). The importance
of this testimony is that it shows she possesses clerical skills involving a computer,
a skill which unquestionably is applicable to the jobs the ALJ identified. The
ALJ’s conclusion about transferability of Patterson’s skills is supported by
substantial evidence.
Pursuant to the substantial evidence standard, this court’s review is a limited
one; the entire record must be scrutinized to determine the reasonableness of the
ALJ’s factual findings. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). It
is not the province of this court to reweigh evidence, make credibility
determinations, or substitute its judgment for that of the ALJ. Instead the court

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reviews the record to determine if the decision reached is supported by substantial
evidence. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
V. Conclusion
The court has carefully and independently reviewed the record and
concludes that substantial evidence supports the ALJ’s conclusion that plaintiff is
not disabled. Thus, the court concludes that the decision of the Commissioner is
due to be affirmed.
A separate order will be entered.
Done this 12th day of September, 2017.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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