Sanders v. Colvin (CONSENT)

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 5/31/16. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
PHILLIP SANDERS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 3:15cv345-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Phillip Sanders (“Plaintiff”) filed an application 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 XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq., on August 1, 2012. His applications were denied at the initial administrative
level on September 19, 2012. Plaintiff then requested and received a hearing before an
Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a decision
finding that Plaintiff had not been under a disability as defined in the Social Security Act,
from December 19, 2011, through the date for his decision.

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 Cir. 1986). Plaintiff

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-

appealed the ALJ’s decision to the Appeals Council and his request for review was denied
on March 21, 2015. 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. 9); Def.’s Consent to Jurisdiction (Doc. 10).
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
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.
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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.

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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?
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 Four. 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 One through
Step Four. At Step Five, 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

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McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits. Supplemental security income cases arising under Title XVI of the Social Security Act
are appropriately cited as authority in Title II cases. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412 (5th
Cir. 1981); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The definition of
disability and the test used to determine whether a person has a disability is the same for claims seeking
disability insurance benefits or supplemental security income.”).

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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
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).

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

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[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).
III.

ADMINISTRATIVE PROCEEDINGS
At the time of the ALJ hearing, Plaintiff was thirty-three years old and had

completed high school. Tr. 114, 116. 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 December 19, 2011, the alleged onset date[.]” Tr. 92. At
Step Two, the ALJ found that Plaintiff suffers from the following severe impairments:
“hearing deficit, diabetes mellitus, degenerative disc disease, and hypertension.” Tr. 92.
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[.]” Tr. 93. Next, the ALJ articulated Plaintiff’s RFC as follows:
[T]he claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant
must periodically alternate sitting and standing positions at 30 minutes or
greater intervals to relieve pain or discomfort. The claimant can perform
occasional pushing or pulling with upper right and lower right extremities.
The claimant would be restricted to no climbing ladders, ropes, scaffolds,
and only occasional climbing of ramps and stairs. The claimant is able to do
occasional balancing, kneeling, crouching, crawling, and stooping. He
should avoid concentrated exposure to extreme heat and cold, vibration;
avoid moderate exposure to noise; no exposure to dangerous machinery,
unprotected heights; and no work requiring walking on uneven terrain.
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Tr. 93. Having consulted with a VE at the hearing, the ALJ concluded at Step Four that
Plaintiff is “capable of performing past relevant work as an EKG monitor (DOT 678.365010), sedentary, skilled work with specific vocational preparation (SVP) of five and
customer services representative (DOT 249.362-026), sedentary, semi-skilled work with
svp of four. This work does not require the performance of work-related activities
precluded by the claimant’s residual functional capacity[.]” Tr. 103. Finally, at Step Five,
and based upon the testimony of the VE, the ALJ determined that Plaintiff “has not been
under a disability . . . from December 19, 2011, through the date of this decision[.]” Tr.
103.
IV.

PLAINTIFF’S CLAIM
Plaintiff presents two arguments for reversal of the Commissioner’s decision: (1)

“[t]he ALJ failed to give the claimant’s treating physician’s opinion controlling weight
despite the fact that it is consistent with the record as a whole”; and (2) “[t]he ALJ failed
to find a ruling of fact; the Plaintiff meets and/or equals Listing 1.04(A).” Pl.’s Br. (Doc.
12) at 7-8.
V.

DISCUSSION
First, Plaintiff argues that the ALJ erred in failing “to give the claimant’s treating

physician’s opinion controlling weight despite the fact that it is consistent with the record
as a whole.” Pl.’s Br. (Doc. 12) at 7. Plaintiff asserts that the ALJ “gave a Consultative
Examiner’s opinion more weight than that of the claimant’s treating physician, who unlike
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the Consultative Examiner, has treated the claimant for a prolonged period and has
performed multiple examinations of the claimant.”5 Doc. 12 at 8. The court concludes that
substantial evidence exists to support the ALJ’s decision to discount the opinion of
Plaintiff’s treating physician.
The opinion of a treating physician “must be given substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Lewis v. Callahan, 125 F. 3d 1436,
1440 (11th Cir. 1997) (citing McGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)).
The Eleventh Circuit has found that “good cause” exists when the: “(1) treating physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (citing
Lewis, 125 F.3d at 1440). When electing to disregard the opinion of a treating physician,
an ALJ must clearly articulate his or her reasons for discounting the opinion. Id.
Here, good cause exists for discounting the opinion of Plaintiff’s personal treating
physician, Dr. Felician Jones (“Dr. Jones”). Dr. Jones completed a Medical Source
Statement in October 2013, which concluded that Plaintiff could not work due to diabetes
and musculoskeletal pain. Tr. 99, 757-58. Dr. Jones further opined that Plaintiff could
stand and sit for no more than thirty minutes at a time; could lift no more than five pounds

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The court notes that the above statement is the entirety of Plaintiff’s analysis for his argument
that the ALJ improperly discounted the opinion of Plaintiff’s treating physician.
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on an occasional basis; was unable to bend, stoop, or balance; and could stand, walk, or sit
no more than 25% of the time during an eight-hour workday. Tr. 757-58. Finally, Dr. Jones
rated Plaintiff experienced severe pain 100% of the day. Tr. 758. In according Dr. Jones’s
opinion “little weight,” the ALJ provided the following justification:
Dr. Jones provided an extremely limiting medical opinion regarding the
claimant’s physical abilities and limitations. First, when questioned on how
many hours the claimant could work, he responded with the answer “none.”
I acknowledge that Dr. Jones opined that the claimant is disabled. Careful
consideration has been given to this opinion. However, because this opinion
about the claimant’s ability to perform past work is on an issue reserved to
the Commissioner and not an opinion as to the nature and severity of the
claimant’s impairment, it cannot be accorded special weight (20 CFR
404.1527(e) and SSR 96-5p). Nevertheless, considering the claimant’s
testimony in light of his medical treatment history, the medical signs and
findings, including the most recent physical examination by the
consultative examiner, Dr. Vester, the evidence does not substantiate the
opinion that the claimant could not perform any duration of work. In
fact, the claimant’s own testimony about general daily activities,
demonstrate some capacity to work. With respect to claimant’s lifting
capabilities, this is somewhat consistent with the claimant’s testimony,
although the claimant testified he could lift five to ten pounds. Dr. Jones
opined the claimant could sit and stand for only 30 minutes at one time. The
undersigned accounts for this issue with the sit/stand opinion provided for in
the established residual functional capacity. In addition, Dr. Jones opined
the claimant was in “severe pain” (Ex. B16F). The assessment of pain is
generally subjective, even so, the doctor appeared to rely quite heavily on the
subjective report of symptoms and limitations provided by the claimant, and
seemed to uncritically accept as true most, if not all, of what the claimant
reported. Yet, as explained previously in this decision, there exist good
reasons for questioning the reliability of the claimant’s subjective
complaints. In fact, the opinion provided by Dr. Jones is not consistent
with his own treating records. Actually, the progress notes by Dr. Jones
specifically show the claimant’s review of systems having “no low back
pain” and the treatment provided was generally routine and conservative.
The opinion of Dr. Jones is severely limiting, one would expect, his treatment
records to reflect referrals to specialists, further testing, and remarks
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regarding the claimant’s “severe” pain. There are no recommendations for
back surgery and there are no diagnoses of neuropathy or kidney function
problems. Thus, the course of treatment pursued by the doctor has not been
consistent with what one would expect if the claimant were truly disabled, as
the doctor has reported. Even though, Dr. Jones is the claimant’s treating
physician, I accord this opinion little weight. Dr. Jones relied heavily on the
claimant’s subjective complaints and not the objective medical findings
demonstrating “no acute” abnormality of the lumbar spine identified” along
with an “essentially unremarkable right leg” (Ex. B5F). Considering, all the
reasons defined above, I accord little weight to the opinion of Dr. Jones
(B16F).”
Tr. 101-02 (emphasis added). The court concludes that the ALJ clearly articulated his
reasons for discounting the opinion of Plaintiff’s treating physician, Dr. Jones. Further,
after an independent review of the record, the court concludes that the ALJ had “good
cause” to discount that opinion, considering it was not bolstered by the evidence, it was not
consistent with Dr. Jones’s own records, and evidence in the record supported a contrary
finding.6 As such, Plaintiff’s argument is without merit.
Second, Plaintiff asserts that “[t]he ALJ failed to find a ruling of fact; the Plaintiff
meets and/or equals Listing 1.04(A)[.]” Pl.’s Br. (Doc. 12) at 8. Plaintiff states that “[i]n
reviewing the medical evidence of record, it is evident that the Plaintiff meets and/or equals

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In addition to the reasons provided by the ALJ that are set forth above, the court notes that
evidence in the record indicates the following:
 Normal x-rays of Plaintiff’s lumbar spine and lumbrosacral spine. Tr. 489, 599.
 Normal strength and sensory exams. Tr. 488, 506.
 An emergency room report from June 2012 suggesting that Plaintiff had moved furniture
two weeks prior to his visit, although Plaintiff could not relate his reports of back pain with
moving furniture. Tr. 486.
 Treatment records from Dr. Jones indicating that Plaintiff had no limitations in grooming,
bathing, or walking. Tr. 615, 691-98.
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Listing 1.04([A]) in that he suffers from a disabling back condition, has pain radiating
down his legs, positive straight leg raise, and decreased range of motion.”7 Doc. 12 at 8.
The court concludes that substantial evidence supports the ALJ’s determination that
Plaintiff did not meet or medically equal Listing 1.04(A); thus, Plaintiff’s argument fails.
“For a claimant to show that his impairment matches a listing, [the impairment]
must meet all of the specified medical criteria. An impairment that manifests only some of
those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521,
530 (1990) (emphasis in original). Listing 1.04(A) provides:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis,
vertebral fracture), resulting in compromise of a nerve root (including the
cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss, and a positive straight-leg test in cases in which there
is involvement in the lower back.
20 C.F.R. § Pt. 404, Subpt. P, App. 1 (emphasis added).
While the ALJ noted that Plaintiff had a positive straight-leg test,8 the record is
devoid of evidence that Plaintiff experienced limitation of motion of the spine, motor loss,

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The court notes that the above statement is the entirety of Plaintiff’s analysis for his argument
that the ALJ erred when he failed to find that Plaintiff met Listing 1.04(A).

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Plaintiff had a positive straight-leg test on August 17, 2012. Tr. 97. On October 10, 2012,
Plaintiff stated during the straight leg raise test that it hurt in his back. Tr. 98, 583. Then he stated
it hurt in his hip. Tr. 98, 583. Finally, he stated in hurt in his knee. Tr. 98, 583. On July 2, 2013,
Plaintiff had a negative seated and supine leg-raising test. Tr. 506.
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and sensory or reflex loss, as required by Listing 1.04(A).9 Therefore, assuming arguendo
that Plaintiff meets the introductory paragraph of Listing 1.04, Plaintiff failed to produce
evidence that he met the additional requirements under section (A). As such, the court
concludes that substantial evidence supports the ALJ’s decision that Plaintiff did not meet
or medically equal Listing 1.04(A).
For the foregoing reasons, the court finds that substantial evidence exists to support
the ALJ’s determination that Plaintiff is not disabled.
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. A separate
judgment will issue.
Done this 31st day of May, 2016.

/s/ Wallace Capel, Jr.
UNITED STATES MAGISTRATE JUDGE

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On July 2, 2013, Plaintiff was noted to have “[n]o muscular atrophy.” Tr. 506.
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