Scales v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 1/9/2019. (AFS)

FILED
2019 Jan-09 PM 12:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
RORY O. SCALES,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Civil Action Number
1:18-cv-00136-AKK

MEMORANDUM OPINION
Rory O. Scales brings this action pursuant to Section 405(g) of the Social
Security Act (the “Act”), 42 U.S.C. § 405(g), seeking review of the final decision
adverse decision of the Commissioner of the Social Security Administration
(“SSA”). The court finds that the Administrative Law Judge (“ALJ”) applied the
correct legal standards and that his decision, which has become the decision of the
Commissioner, is supported by substantial evidence.

Accordingly, the court

AFFIRMS the decision denying benefits.
I. Procedural History
Scales filed an application for disability insurance benefits on September 28,
2000, alleging disability due to back pain and major depression. See R. 91-92.
The SSA found Scales to be disabled as defined by the Act beginning April 11,

2001, and the SSA awarded him benefits. R. 85, 89. In November 2012, the SSA
conducted a continuing disability review, as required by statute, and scheduled
consultative examinations for Scales.

R. 358-59.

Scales did not go to the

examinations, and he did not submit to an interview with the SSA. R. 248-49, 252,
357-72. Accordingly, based on Scales’ failure to cooperate and the insufficient
evidence to show Scales’ continued disability, the SSA determined that Scales was
no longer disabled for purposes of the Act.

R. 98, 101-02, 357-72.

Scales

requested reconsideration, but the SSA again found that Scales was not disabled
because there was insufficient evidence to assess the severity of Scales’
impairments. R. 105, 107, 120, 124. Subsequently, Scales requested a hearing
before an ALJ, who found that Scales’ disability ended as of November 1, 2012.
R. 25, 126-27.1 The SSA Appeals Council denied Scales’ request for review,
rendering the ALJ’s decision the final decision of the Commissioner.

R. 1.

Having exhausted his administrative remedies, Scales filed this petition for review
pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.

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The ALJ continued Scales’ first hearing to allow him to obtain representation and held a
supplemental hearing at Scales’ request. R. 14. Scales did not obtain representation and
appeared pro se at his hearing and supplemental hearing. Id.

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Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “‘reasonable
and supported by substantial evidence.’” Id. (quoting Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “‘[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.’” Martin, 894 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239). If supported by substantial evidence, the
court must affirm the Commissioner’s factual findings even if the preponderance
of the evidence is against those findings. See id. While judicial review of the
ALJ’s findings is limited in scope, it “does not yield automatic affirmance.” Lamb,
847 F.2d at 701.
In contrast to the deferential review accorded the Commissioner’s factual
findings, “conclusions of law, including applicable review standards, are not
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presumed valid” and are subject to de novo review. Martin, 894 F.2d at 1529. The
Commissioner’s failure to “apply the correct legal standards or to provide the
reviewing court with sufficient basis for a determination that proper legal
principles have been followed” requires reversal. Id.
III. Statutory and Regulatory Framework
42 U.S.C. § 423(f) governs the termination of disability benefits and
provides in pertinent part that:
A recipient of benefits . . . may be determined not to be entitled to
such benefits on the basis of a finding that [his] . . . physical or mental
impairment . . . has ceased, does not exist, or is not disabling only if
such finding is supported by [] substantial evidence which
demonstrates that—
a. there has been any medical improvement in the individual’s
impairment or combination of impairments (other than
medical improvement which is not related to the individual’s
ability to work), and
b. the individual is now able to engage in substantial gainful
activity . . . .
42 U.S.C. § 423(f)(1).

The SSA uses an eight-step sequential analysis when

determining whether to terminate disability benefits. See 20 C.F.R. § 404.1594(f).
The SSA’s review may cease at any step in the analysis if it determines there is
sufficient evidence to find that a recipient of benefits is “still unable to engage in
substantial gainful activity.” Id.

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The eight-step inquiry involves ascertaining whether the recipient of benefits
has experienced a medical improvement in the severity of the impairments that
were “present at the time of the most recent favorable medical decision that [the
recipient was] disabled or continued to be disabled.” 20 C.F.R. §§ 404.1594(b)(1),
(f)(3). If there has been a medical improvement, then the SSA “must determine
whether it is related to [the recipient’s] ability to do work,” and, if it is, whether the
recipient’s “current impairments in combination are severe . . . .” Id. at
§§ 404.1594(f)(4)-(6).

Next, the SSA determines the recipient’s residual

functional capacity (“RFC”) and whether the recipient can perform work he has
done in the past or can do other work in the national economy.

Id. at

§§ 404.1594(7)-(8). If the SSA finds that a recipient of benefits can perform past
work or other work, then the recipient is found to be no longer disabled, and his
benefits are terminated.
Relevant here, the SSA may also determine that a recipient of benefits is no
longer disabled without a determination that he has “medically improved or can
engage in substantial gainful activity” if the recipient does not cooperate with the
SSA’s continuing disability review. Id. at §§ 404.1594(e)(2), (f)(5). In particular,
“[i]f there is a question about whether [a recipient of benefits] continue[s] to be
disabled and [the SSA] ask[s] [him] . . . to go for a physical or mental examination
by a certain date, [the SSA] will find that [his] disability has ended if [he] fail[s],
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without good cause, to do what [the SSA] ask[s].” Id. at § 404.1594(e)(2). The
SSA may consider the recipient’s failure to cooperate at any point in the eight-step
analysis. Id. at § 404.1594(f)(5).
IV. The ALJ’s Decision
Following the eight-step analysis, the ALJ first found that as of October 30,
2002 (the date of the most recent favorable medical decision, i.e., the “comparison
point decision” or “CPD”), Scales had the following medically determinable
impairments: mild to moderate stenosis at C6-7 and severe major depression
without psychotic features. R. 16. These impairments resulted in moderately
severe pain and an inability to relate to people and to respond appropriately to
work pressure, rendering Scales unable to sustain basic work activity for an eighthour workday or a 40-hour workweek. Id. Scales did not engage in substantial
gainful activity from the date of the CPD through November 1, 2012, the date that
Scales’ disability ended. R. 17.
The ALJ found that Scales experienced medical improvement between the
date of the CPD and November 1, 2012. R. 18. The ALJ determined that as of
November 1, 2012, Scales had the following medically determinable impairments:
“history of central disc protrusion at L5-S1 and broad-based disc bulge at L4-5;
history of neural foraminal stenosis on the left at C6-7 and on the right at C3-4 due
to minimal osteophyte formation; dizziness episode in December 2012; and
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possible cerebrovascular accident/transient ischemic attack in February 2016.” R.
17-18.

The ALJ concluded that Scales’ impairments, or combination of

impairments, did not meet or medically equal the severity of an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525 and
404.1526). Id. In light of Scales’ medical improvement, the ALJ found that as of
November 1, 2012, Scales had the RFC to perform unskilled medium work with
the following limitations:
[Scales] could only frequently reach overhead bilaterally. He should
never be exposed to unprotected heights or operate commercial motor
vehicles. In addition to normal breaks, he would be off task about five
percent of an eight hour workday.
R. 19-20. Based on this Scales’ RFC, age, education, and work experience, and
the testimony of a vocational expert, the ALJ found that, as of November 1, 2012,
Scales was able to perform a significant number of jobs in the national economy.
R. 24-25. Accordingly, the ALJ determined that Scales’ disability ended as of
November 1, 2012. R. 25.
V. Analysis
Scales takes issue with the Commissioner’s finding that he is no longer
disabled and asserts that the ALJ’s decision is not based on substantial evidence
and is contrary to the applicable regulations. Doc. 1 at 6. 2 In particular, Scales
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Scales, who is proceeding pro se, did not file a brief in support of disability or respond
to the Commissioner’s brief. Rather, he filed a motion for judgment on the pleadings, doc. 11,
which the court denied as premature, doc. 14.

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argues that there is no evidence to support the decision and that the ALJ
mischaracterized the VE’s testimony. Id. For the reasons explained below, the
court rejects these contentions and affirms the ALJ’s decision.
A.

Whether substantial evidence supports the ALJ’s decision

Scales first contends that no evidence supports the ALJ’s determination that
he is no longer disabled and that the ALJ improperly focused on irrelevant medical
issues to reach his decision. Doc. 1 at 6. However, Scales does not identify any
medical evidence the ALJ overlooked or failed to address. Moreover, the ALJ
reviewed and thoroughly discussed the entire medical record, see R. 16-23, and the
record supports the ALJ’s finding that Scales is no longer disabled as of November
1, 2012.
As discussed by the ALJ, the record reflects that Scales did not seek
treatment for cervical and lumbosacral disc disease or depression between October
30, 2002, the date of the CPD, and November 1, 2012. R. 18, 318-496. Likewise,
there is no evidence that Scales has sought treatment for those conditions after
November 1, 2012. R. 19, 318-496.
In addition, the medical records show improvement in Scales’ cervical and
lumbosacral disc disease and depression after October 30, 2002. Scales sought
treatment on December 27, 2012 at Citizens Baptist Medical Center for dizziness.
R. 393-99, 420-23, 434-47. A physical examination that day revealed normal
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musculoskeletal range of motion, strength, and reflexes, and Scales was
“[n]egative for back pain.” R. 395-96. Scales also exhibited normal mood, affect,
behavior, judgment, thought content, cognition, and memory.

R. 396.

An

emergency room physician diagnosed Scales with vertigo based in part on a
normal CT scan, and the hospital discharged Scales in good, stable, and improved
condition. R. 393, 398. 3
Scales returned to Citizens Baptist Medical Center on February 29, 2016 to
seek treatment for tingling on the left side of his face, left arm, and left foot. R.
449. A physical examination revealed normal range of motion, and a normal mood
and affect, and Scales’ behavioral/psychiatric examination was negative. R. 451.
In addition, Scales’ neurological symptoms were diffuse and did not include
headaches or aphasia. R. 449, 453. After a CT scan, Scales was diagnosed with a
possible transient ischemic attack, or ischemic stroke, and discharged on March 2,
2016. R. 401-12, 453-89. The records do not indicate that Scales’ physicians
placed any limitations on his functioning upon his discharge, see R. 401-12, and
there is no evidence that Scales returned for a follow-up visit after his discharge.
In addition to these medical records, in a December 2, 2011 continuing
disability review report, Scales did not identify any mental conditions that limit his
ability to work. R. 222. Rather, Scales only identified physical conditions relating
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Scales testified that he was misdiagnosed with vertigo and actually suffered a stroke in
2012, R. 51, but there is no objective medical evidence to support Scales’ testimony.

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to his lower back, mid back, and neck that limit his ability to work. Id. Scales
reported that he had not received medical treatment in the previous 12 months for
his back and neck conditions and that he took ibuprofen to ease the pain caused by
those conditions. R. 222, 228. Consistent with that report, Scales’ medical records
from February 2016 indicate that he took ibuprofen as needed for “mild” neck and
back pain. R. 460.
Based on the medical records and Scales’ continuing disability review
report, the court finds that substantial evidence supports the ALJ’s finding that
Scales experienced medical improvement between October 30, 2002 and
November 1, 2012, and the ALJ’s determination of Scales’ RFC.
B.

Whether the ALJ mischaracterized the VE’s testimony

Scales contends also that the ALJ erred by misrepresenting the VE’s
testimony. Doc. 1 at 6. In his decision, the ALJ stated that he asked the VE
“whether jobs existed in the national economy for an individual with the claimant’s
age, education, work experience, and [RFC] as of November 1, 2012.” R. 24. But,
at the hearing, the ALJ asked the VE whether an individual who could perform
work in accordance with Scales’ RFC could do any work in the national economy.
R. 61. The ALJ did not explicitly ask the VE to consider Scales’ age, education, or
work experience. Id. Any error based on that omission is harmless, however,
because the VE limited his response to unskilled work, which indicates the VE did
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consider Scales’ age, education, and work exerience. See R. 61-62. Specifically,
the VE testified that an individual with Scales’ RFC could perform unskilled
medium work as a hand packager, industrial cleaner, or laborer in stores and that
approximately 379,000 of those jobs exist nationally.

Id.

Thus, the VE’s

testimony shows that a significant number of jobs exist in the national economy
exist that an individual with Scales’ age, education, work history, and RFC could
perform.

Therefore, the record belies Scales’ contention that the ALJ

mischaracterized the VE’s testimony.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Scales is no longer disabled is supported by substantial evidence and that the
ALJ applied the proper legal standards in reaching his determination. Therefore,
the Commissioner’s final decision is due to be affirmed. The court will enter a
separate order in accordance with this Memorandum Opinion.
DONE the 9th day of January, 2019.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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