Adams v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate-Judge Harwell G Davis, III on 05/30/14. (SPT )

FILED
2014 May-30 AM 08:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THERSA M. ADAMS,
Plaintiff
vs.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant

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) Case No. 2:13-cv-00396-HGD
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MEMORANDUM OPINION
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), plaintiff seeks judicial
review of an adverse social security ruling which denied claims for disability
insurance benefits under Title II of the Social Security Act. (Doc.1). The parties
have consented to the exercise of jurisdiction by the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(c) and Rule 73, Fed.R.Civ.P. (Doc. 10). Upon
consideration of the administrative record and the memoranda of the parties, the court
finds that the decision of the Commissioner is due to be affirmed and this action
dismissed.
I.

Proceedings Below
Plaintiff filed an application for a period of disability and disability insurance

benefits on June 1, 2009, in which she alleged that she became unable to work on

March 7, 2009. On May 4, 2010, these claims were initially denied by the agency.
On June 7, 2010, plaintiff requested a hearing before an Administrative Law Judge
(ALJ) which took place on July 21, 2011. On August 15, 2011, the ALJ issued a
decision denying plaintiff’s application. The Appeals Council denied plaintiff’s
request for review on January 2, 2013. After the Appeals Council denied plaintiff’s
request for review of the ALJ’s decision, that decision became the final decision of
the Commissioner, and therefore a proper subject of this court’s appellate review. 42
U.S.C. §§ 405(g) and 1383(c)(3).
II.

ALJ Decision
Disability under the Act is determined under a five-step test. 20 C.F.R.

§ 404.1520. First, the ALJ must determine whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). “Substantial work
activity” is work that involves doing significant physical or mental activities. 20
C.F.R. § 404.1572(a). “Gainful work activity” is work that is done for pay or profit.
20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant has
a medically determinable impairment or a combination of medical impairments that
significantly limits the claimant’s ability to perform basic work activities. 20 C.F.R.
§ 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability.
Id. Third, the ALJ must determine whether the claimant’s impairment meets or
medically equals the criteria listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See
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20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526. If such criteria are met, the
claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared
disabled under the third step, the ALJ may still find disability under the next two
steps of the analysis. The ALJ must first determine the claimant’s residual functional
capacity (RFC), which refers to the claimant’s ability to work despite her
impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines
whether the claimant has the RFC to perform past relevant work. 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past
relevant work, then the claimant is deemed not disabled. Id. If the ALJ finds that the
claimant is unable to perform past relevant work, then the analysis proceeds to the
fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last part of the analysis, the
ALJ must determine whether the claimant is able to perform any other work
commensurate with her RFC, age, education, and work experience. 20 C.F.R.
§ 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove
the existence in significant numbers of jobs in the national economy that the claimant
can do given the RFC, age, education and work experience.

20 C.F.R.

§§ 404.1520(g) and 404.1560(c).
The ALJ strictly adhered to this decision-making protocol. He made the
following findings of fact and conclusions of law:
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1. The claimant has not engaged in substantial gainful activity since
March 7, 2009, the alleged onset date. (20 C.F.R. § 404.1571, et seq.).
2. The claimant has the following severe impairments: spinal stenosis
post- C6-7 fusion, obstructive sleep apnea, and fibromyalgia (20 C.F.R.
§ 404.15210(c)).
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the impairments
included in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525 and 404.1526).
4. The claimant has the residual functional capacity to lift, carry, and
push/pull twenty pounds occasionally and ten pounds frequently, stand
and walk combined for six hours in an eight-hour day, and sit for six
hours in an eight-hour day. The claimant requires a sit/stand option, and
is unable to move her head up and down on a regular basis.
5. The claimant is unable to perform her past relevant work (20 C.F.R.
§ 404.1565). However, considering the claimant’s age, education, work
experience, and residual functional capacity, 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 (20 C.F.R. § 404.1569, 404.1569(a) and 404.1568(d)).
(Tr. 13-20).
The vocational expert testified that an individual of the claimant’s age,
education, past relevant work experience, and residual functional capacity could
perform representative occupations such as cashier (light, semi-skilled) and hotel
clerk (light, semi-skilled), for which there are jobs available in both the Alabama and
national economy in significant numbers. (Tr. 19).

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At the hearing, plaintiff testified that she worked for AT&T for 30 years, and
in the four years before she retired in March 2009, she took off extensive time under
the Family and Medical Leave Act (FMLA) and extensive vacation time due to her
health. In addition, her employer made various accommodations to allow her to
continue to work. (Tr. 41-43).
Plaintiff was 53 years of age at the time of her alleged onset date and 55 years
of age at the time of her hearing in July of 2011. Thus, she was classified as an
individual “closely approaching advanced age” (50-54) at the time of her alleged
onset date and later changed age categories to “advanced age” (55-59) at the time of
her hearing before the ALJ. Plaintiff has a college degree, and her past relevant work
experience consists of employment as a fiber-optic technician for AT&T (BellSouth)
where she worked for more than 30 years. This job is classified as “light” from an
exertional standpoint and “skilled” as it is customarily performed. However, because
of certain accommodations allowed by her employer, plaintiff performed this job at
a “sedentary” level.
At the hearing before the ALJ, plaintiff testified that she cannot look at a
computer screen for more than an hour because of neck pain. (Tr. 43). She stated
that she can only sit for about 30 minutes before she feels discomfort such that she
must get up and move about. (Tr. 44). She also testified that she can stand and walk
for approximately 30 minutes at a time. (Tr. 47). According to plaintiff, she has good
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days and bad days. She has a couple of “bad days” each week and that on a bad day
she remains in bed for the entire day. (Tr. 48). On a scale of 1 to 10, plaintiff rates
her pain in the mornings from a 7 to 8. After taking her pain medication, it is lowered
to a 5. She needs to lie down frequently. (Tr. 40). After lying down, she is able to
do light housekeeping. (Tr. 40-41).
Plaintiff asserts that the ALJ erred in two ways. She alleges that the ALJ
(1) failed to properly apply the “grids” to the facts of this case and (2) improperly
discredited the subjective testimony of the plaintiff with respect to her pain and other
non-exertional limitations. (Doc. 13, Brief of Plaintiff, at 5-6).
III.

Standard of Review
The only issues before this court are whether the record reveals substantial

evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982), and whether the correct legal standards were
applied. See Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Brown,
792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates that the
Commissioner’s 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, re-evaluate the evidence, or substitute its judgment for that of the
Commissioner; instead, it must review the final decision as a whole and determine if

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the decision is reasonable and supported by substantial evidence. See id. (citing
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) (other citations omitted). If supported by substantial evidence, the
Commissioner’s factual findings must be affirmed even if the evidence preponderates
against the Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court
acknowledges that judicial review of the ALJ’s findings is limited in scope, the court
also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
IV.

Discussion
Plaintiff bears the ultimate burden of proving disability. See 42 U.S.C.

§ 423(d)(1)(A), (5); Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294
n.5, 96 L.Ed.2d 119 (1987); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003).
According to plaintiff, the ALJ findings that plaintiff could lift, carry and
push/pull 20 pounds occasionally and 10 pounds frequently, stand and walk for six
hours in an eight-hour day and sit for six hours in an eight-hour day and that she
requires a sit/stand option and is unable to move her head up and down on a regular
basis is, in essence, a finding by the ALJ that plaintiff retained the RFC to engage in
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less than the full range of light work. However, the ALJ also found that plaintiff
could not engage in her past relevant work, which plaintiff describes as sedentary
work. Consequently, plaintiff claims that these findings are inconsistent because, if
plaintiff cannot perform sedentary work, she could not perform light work, which
requires a greater level of exertion.
Plaintiff further argues that, even if she retained the RFC for a full range of
light work, under the application of the Medical-Vocational Guidelines or “grids”
contained in 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 202.06, a ruling of
“disabled” is indicated once plaintiff has attained the age of 55 years, thereby placing
her in the category of “advanced age.” According to plaintiff, this is because she did
not acquire any skills from her past work that would transfer to other light or
sedentary employment and meets other criteria regarding age and education. (Doc.
13, Brief of Plaintiff, at 7).
Plaintiff’s first assertion, that the RFC as determined by the ALJ was
inconsistent with the ALJ’s determination that she could not do her past relevant
work, is without merit. This argument is based on plaintiff’s assumption that her past
work was sedentary. (Doc. 13 at 7). The Commissioner’s regulations state that past
work may be analyzed either as the claimant actually performed it or as it is generally
performed in the national economy. See 20 C.F.R. § 404.1560(b)(2) (“A vocational
expert or specialist may offer relevant evidence within his or her expertise or
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knowledge concerning the physical and mental demands of a claimant’s past relevant
work, either as the claimant actually performed it or as generally performed in the
national economy.”). The vocational expert (VE) testified that plaintiff’s past work
is customarily light work, but plaintiff performed it as sedentary work. (Tr. 49-50).
Thus, plaintiff’s past work was not necessarily sedentary, and her inability to perform
that work does not mean that the ALJ erred in finding that she could perform some
light work.
Furthermore, the classification of “sedentary” and “light” work refer only to
exertional limitations. See 20 C.F.R. § 404.1567. A review of the VE’s testimony
reflects that plaintiff could not perform her past work due to her non-exertional
limitations. When the ALJ initially asked if a hypothetical individual with only
exertional limitations related to “light” work (limits on sitting, standing, walking,
lifting carrying, pushing and pulling) could perform plaintiff’s past work, the VE
testified in the affirmative. (Tr. 53). When the ALJ included plaintiff’s nonexertional limitations (i.e., that plaintiff required the option to sit/stand at will and
could not regularly move her head up and down), the VE testified that plaintiff’s past
work could not be performed. (Tr. 53-54).
Plaintiff also asserts that she is “disabled” under the grids pursuant to Rule
202.06. Under Rule 202.06, a person of advanced age, who is a high school graduate
or more, where that educational level does not provide for direct entry into skilled
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work, and has skilled or semi-skilled skills that are not transferable, is categorized as
“disabled.” 20 C.F.R. Part 404, Subpart P, Appendix 2, Table No. 2, § 202.06.
However, a person with those same characteristics, except that his skills are
transferable, is categorized as “not disabled.” Id. at § 202.07. A person closely
approaching advanced age, who is a high school graduate and has either transferable
or nontransferable skills, is categorized as “not disabled.” Id. at §§ 202.14 and
202.15. Miller v. Comm’r of Soc. Sec., 241 Fed. Appx. 631 (11th Cir. 2007).
Although plaintiff alleges that there is no evidence that she had transferrable
skills, the ALJ determined otherwise. See 20 C.F.R. § 404.1520(g)(1) (“If we find
that you cannot do your past relevant work . . . we will . . . determine if you can make
an adjustment to other work”). When asked by the ALJ whether plaintiff’s skills from
her past work as an electronic technician wold transfer to other positions, the VE
responded, “Yes.” (Tr. 52). The ALJ then asked whether a hypothetical individual
with plaintiff’s impairments could adjust to other work. (Tr. 53-54). The VE testified
that such an individual could work as a cashier or a hotel clerk. (Tr. 54). Thus, there
was testimony supporting the ALJ’s conclusion that plaintiff could adjust to other
work and was not disabled. See McLeroy v. Comm’r. of Soc. Sec., 327 Fed. Appx.
137 (11th Cir. 2009) (vocational expert’s answer to hypothetical question enabled
ALJ to determine if claimant’s skills were readily transferable). Accordingly, Grid
Rule 202.07 directs a finding of “not disabled.”
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With regard to Rule 202.06, it is significant to note that, when a claimant has
a combination of exertional and non-exertional limitations, the grids are only used as
a guideline in determining disability unless a grid rule directs a finding of disability
based only on the claimant’s exertional limitations. See 20 C.F.R. § 404.1569a(d);
20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2). As noted above, Rule
202.06 only applies if a claimant does not have transferable skills. However, because
plaintiff does have transferrable skills, Rule 202.06 does not apply.
The ALJ found that plaintiff’s complaints regarding her pain were not entirely
credible. Contrary to plaintiff’s assertion, there is substantial evidence to support the
Commissioner’s finding that plaintiff’s statements regarding her pain and other
symptoms were not entirely credible. The ALJ noted that he was guided by the law
of the Eleventh Circuit regarding the standard to use in assessing subjective
complaints. The so-called “pain standard” has three steps. It 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 severity that it can reasonably be
expected to give rise to the alleged pain.” (Tr. 17, quoting Brown v. Sullivan, 921
F.2d 1233 (11th Cir. 1991)). He further noted that this standard applies to symptoms
other than pain, as well. (Id., citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.

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1991). The ALJ also reviewed plaintiff’s subjective complaints in accordance with
the guidelines provided in 20 C.F.R. § 404.1529 and Social Security Ruling 96-7p.
Plaintiff reported that she had numbness in her left leg and that her pain on an
average day without medication was a 7 or 8 on a 10-point scale, but that the level
dropped to a 5 with medication. She also related that she could only sit for an hour,
and stand and walk for only 30 minutes. She indicated that she could not squat or
bend. (Tr. 17).
Despite this testimony, the ALJ found that the severity of plaintiff’s symptoms
and her limitations, as alleged, were not fully supported by the record as a whole. In
support of this conclusion, the ALJ stated that the attending physician at Baptist
Shelby Hospital on September 7, 2009, classified the claimant’s overall general
appearance after conducting a physical examination as mild in nature. (Tr. 17, citing
Ex. 3F). He further stated as follows:
Ammar Aldaher, M.D., conducted a consultative physical examination
of the claimant on April 28, 2010 (Exhibit 9F). Dr. Aldaher reported
that the claimant had a normal gait and no abnormality in her range of
motion in her cervical or lumbrosacral area. She had no muscle
weakness and a negative seated leg raising. Dr. Aldaher opined the
claimant was able to perform work-related activities such as sitting,
standing, walking, lifting, carrying, and handling objects.
On May 4, 2010, Marcus Whitman, M.D., reviewed the available
evidence and opined that the claimant could perform light exertional
level work (Exhibit 10F). In fact, Dr. Ginger Alred, M.D., a treating
physician, reported on May 19, 2011, that the claimant was sleeping
better and the pain medication was helpful (Exhibit 12 F).
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Ultimately, the objective medical evidence and the claimant’s admitted
daily activities show she can perform a significant range of light
exertional tasks. While the MRI of the claimant’s cervical spine
performed on April 26, 2010, showed cervical spondylosis, it also
showed no acute disease present. (Exhibit 13F). The claimant’s ability
to perform routine household chores and assist with the care of her
elderly mother demonstrates this. Although there are some limitations
of motion with the claimant’s neck as a result of her underlying
condition and corrective procedures, she was discharged from pain
management due to failure to stop her marijuana use (Exhibit 13F).
(Tr. at 17-18).
The report of Dr. Aldaher also reflects that, when he examined plaintiff in April
2010, he found that her pain did not radiate down the lower back, and she had no
parasthesias1 , no numbness and no muscle weakness. (Tr. 373). According to Dr.
Aldaher, plaintiff experienced improved pain and range of motion after a back
surgery that took place several years earlier. (Id.). Plaintiff had a full range of
motion after the back surgery. (Id.). She also had a full range of motion in her
cervical spine. (Tr. 374). She had no spasms, deformity, or other abnormal range of
motion in the back. (Id.). Dr. Aldaher found plaintiff had intact sensation, normal
reflexes, a negative straight-leg raise and a normal Romberg Test (for balance). He
concluded, based on his examination, that plaintiff was able to perform work-related
activities such as sitting, walking, lifting, and carrying and handling objects. (Tr.
375).

1

Parasthesia is tickling, prickling or burning sensation of a person’s skin.
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The ALJ also noted that plaintiff made inconsistent statements regarding her
pain. (Tr. 18). He noted that plaintiff reported in May 2011 to her treating physician,
Dr. Ginger Alred, that she was sleeping better “than she had in years” and found that
her pain medications were “helpful.” (Tr. 18, citing Ex. 12F).
Also, the MRI referenced by the ALJ showed an anterior fusion at C6-7, but
no disk protrusion or foraminal impingement at C3-4 or C4-5. (Tr. 403). There was
also mild foraminal narrowing at C5-6 with no disk protrusion and possible posterior
osteophyte formation at C6-7. (Id.). The ALJ noted that there was no acute diagnosis
or degenerative disc disease. (Id.). Thus, the lack of acute disease is substantial
evidence that plaintiff’s limitations are not as severe as she asserts.
The ALJ also reviewed plaintiff’s daily activities and found that they were
inconsistent with her alleged limitations. For example, she stated that she could only
sit 30 minutes to an hour due to her pain (Tr. 44-45) but could drive (Tr. 34), and
sometimes makes a five-hour car drive to see her son in New Orleans. (Tr. 31). The
ALJ also noted that plaintiff could perform some household chores and assist with the
care of her elderly mother. While she did not perform either of these functions for an
extended period of time, it still demonstrates that plaintiff can perform a significant
range of light exertional tasks. (Tr. 18).
Likewise, while plaintiff points to evidence from January 2006 showing
cervical spondylosis and significant nerve root compression, this condition predated
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plaintiff’s alleged disability onset date by more than three years.

(Tr. 114).

Furthermore, plaintiff reported experiencing improved pain and range of motion after
cervical fusion surgery (Tr. 395, 373-74), and MRI imaging from 2010 confirmed a
lack of acute disease in the spine. (Tr. 403).
The ALJ considered plaintiff’s allegations regarding her pain and other
symptoms, but found that they were inconsistent with the objective medical evidence
in the record, the examining and treating physicians, and plaintiff’s daily activities.
Credibility is determined based on the record as a whole. Kelly v. Heckler, 736 F.2d
631, 632 (11th Cir. 1984). Under these circumstances, there is substantial evidence
to support the ALJ’s conclusions regarding plaintiff’s credibility.
In sum, the ALJ concluded that, although the claimant’s additional limitations
do not allow the claimant to perform the full range of light work, considering her age,
education and transferable work skills, a finding of “not disabled” was appropriate
under the framework of the Medical-Vocational Rule 202.15 and Rule 202.07 of the
Medical-Vocational Guidelines.
V.

Conclusion
In conclusion, it is clear that the ALJ’s decision is based on substantial

evidence. Even if the evidence preponderates against the Secretary’s factual findings,
this Court must affirm if the decision reached is reasonable and is supported by
substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986);
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MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); Bloodsworth, 703 F.2d
at 1239. Because the decision finding plaintiff not disabled is based on “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion,” Bloods worth, 703 F.2d at 1239, the decision of the Commissioner is due
to be affirmed. A separate order will be entered.
DONE this 30th day of May, 2014.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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