Griggs v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/26/2014. (PSM)

FILED
2014 Sep-26 PM 03:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARY KATHERINE GRIGGS,
)
)
Plaintiff,
)
)
v.
)
CIVIL ACTION NO.
)
2:13-cv-1107-AKK
CAROLYN W. COLVIN,
)
Acting Commissioner of Social
)
Security,
)
)
Defendant.
MEMORANDUM OPINION
Plaintiff Mary Katherine Griggs (“Griggs”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This court finds that the Administrative Law Judge’s
(“ALJ”) decision – which has become the decision of the Commissioner – is
supported by substantial evidence. Therefore, for the reasons elaborated herein,
the court will affirm the decision denying benefits and deny Griggs’ motion to
supplement the record.
I. Procedural History
Griggs, whose past relevant experience includes work as a poultry worker,

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filed an application for Supplemental Security Income on June 29, 2010, alleging a
disability onset date of November 15, 2008, due to problems with her back and left
leg. (R. 23, 31, 160). After the SSA denied Griggs’ claim, she requested a hearing
before an ALJ. (R. 106). The ALJ subsequently denied Griggs’ claim, (R. 20-32),
which became the final decision of the Commissioner when the Appeals Council
refused to grant review. (R. 1-6). Griggs then filed this action for judicial review
pursuant to § 205(g) of the Act, 42 U.S.C. § 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.
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)
mandates 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.” See id. (citing Bloodsworth v. Heckler, 703
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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, 849
F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If
supported by substantial evidence, the court must affirm the Commissioner’s
factual findings even if the preponderance of the evidence is 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, it
notes that the review “does not yield automatic affirmance.” Lamb, 847 F.2d at
701.
III. 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 impairments 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). 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).
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Determination of disability under the Act requires a five step analysis. 20
C.F.R. §§ 404.1520(a)-(g), 416.920(a)-(g). Specifically, the Commissioner must
determine in sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
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 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, she must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of

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pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
The pain 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.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987)].
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the

1

This standard is referred to as the Hand standard, named after Hand v. Heckler, 761
F.2d 1545, 1548 (11th Cir. 1985).
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ALJ must find a disability unless the ALJ properly discredits the claimant’s
testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate
reasons for refusing to credit a claimant’s subjective pain testimony,
then the [ALJ], as a matter of law, has accepted that testimony as true.
Implicit in this rule is the requirement that such articulation of
reasons by the [ALJ] be supported by substantial evidence.
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Griggs had not
engaged in substantial gainful activity since June 29, 2010, and, therefore, met
Step One. (R. 25). Next, the ALJ found that Griggs satisfied Step Two because
she suffered from the severe impairments of “degenerative disc disease of the
lumbar spine; lumbar radiculopathy at L5-S1; and a leg length discrepancy.” Id.
The ALJ then proceeded to the next step and found that Griggs failed to satisfy
Step Three because she “does not have an impairment or combination of
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impairments that meets or medically equals one of the listed impairments.” (R.
26). Although the ALJ answered Step Three in the negative, consistent with the
law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step Four where she
determined that Griggs has the residual functional capacity (RFC) to
frequently lift and/or carry up to ten pounds. She can stand and/or
walk with normal breaks for at least 2 hours during an eight-hour
workday and sit with normal breaks for up to eight hours during an
eight-hour workday. She can occasionally climb ramps and stairs.
She can occasionally balance, stoop, kneel, crouch and crawl. She
should avoid all exposure to industrial hazards including working at
unprotected heights, working on ladders ropes and scaffolds, and
working in close proximity to moving, dangerous machinery.
(R. 27). In light of her RFC, the ALJ held that Griggs “is unable to perform any
past relevant work.” (R. 31). Lastly, in Step Five, the ALJ considered Griggs’
age, education, work experience,2 and RFC, and determined “there are jobs that
exist in significant numbers in the national economy [Griggs] can perform.” Id.
Therefore, the ALJ found that Griggs “has not been under a disability, as defined
in the Social Security Act, since June 29, 2010, the date the application was filed.”
(R. 32).
V. Analysis
Griggs contends that the ALJ erred in finding that her testimony was not

2

As of the date of the ALJ’s decision, Griggs was 43 years old, had a marginal
education, and past relevant medium unskilled work as a poultry worker. (R. 31).
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credible, see doc. 10 at 13-15, and has moved to supplement the record on appeal
with additional evidence, doc. 9. The court addresses Griggs’ contention and
motion in turn.
A.

The ALJ’s Credibility Finding

Griggs contends that the ALJ “failed to properly explain her rejection of
[Griggs’] complaints of severe pain.” Doc. 10 at 15. In considering Griggs’
claim, the ALJ found that Griggs’ “medically determinable impairments could
reasonably be expected to cause [her] alleged symptoms.” (R. 27). Therefore,
Griggs met the requirements of the pain standard in this circuit. See supra Part III.
However, contrary to Griggs’ contention, and consistent with the pain standard in
this circuit, the ALJ articulated reasons why she did not credit Griggs’ testimony.
First, the ALJ noted that Griggs “described daily activities that are not limited to
the extent one would expect, given her complaints of disabling symptoms and
limitations.” (R. 30). To support this contention, the ALJ pointed out that “[a]t
one point or another in the record . . . [Griggs] has reported the following daily
activities: independently caring for her personal needs; preparing meals; cleaning;
doing laundry; driving a car; shopping in stores; watching television; playing
board games; cooking out with family; and swimming.” Id. As the ALJ noted,
these activities were “inconsistent with her allegation of disabling pain and
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dysfunction.” (R. 30). While Griggs is free to disagree with the ALJ’s
conclusion, the court notes that it is proper for the ALJ to consider Griggs’ daily
activities in assessing her credibility. See Harwell v. Heckler, 735 F.2d 1292, 1293
(11th Cir. 1984).
Next, consistent with the regulations, see 20 C.F.R. § 416.929(c)(4), the
ALJ found that inconsistencies in Griggs’ statements diminished her credibility.
For example, the ALJ noted that while Griggs “testified that she had not worked in
her garden since 2007 . . . medical records show that she report[ed] to her treating
doctors that she fell while working in her garden in 2010.” (R. 30). In addition,
the ALJ observed that although Griggs “testified that she completed the sixth
grade, . . . she told Dr. Gragg, a consultative psychologist, that she quit school
after the eleventh grade.” Id. The ALJ reasonably found that these
inconsistencies meant that Griggs’ “other statements on matters material to the
determination of disability may not be entirely credible.” Id. Finally, the ALJ
concluded that Griggs’ “treatment history detracts from the credibility of her
allegations.” Id. For example, the ALJ correctly observed that Griggs’ “treatment
has been essentially routine and conservative in nature,” that “medical records
reveal that the medications have been relatively effective in controlling [Griggs’]
symptoms,” and that Griggs “has not alleged any side effects from the use of these
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medications.” Id.; see Falcon v. Heckler, 732 F.2d 827, 832 (11th Cir. 1984) (ALJ
properly considered conservative treatment in assessing credibility).
Ultimately, based on this record, Griggs has failed to show that the ALJ
erred in assessing her credibility. In fact, the ALJ articulated specific reasons for
discounting Griggs’ testimony of disabling symptoms – all of which are supported
by substantial evidence. Moreover, even though the ALJ did not credit Griggs’
testimony of disabling symptoms, she recognized that Griggs had some limitations
caused by her impairments as reflected in the RFC assessment for a limited range
of sedentary work. (R. 21). The court finds that substantial evidence supports the
ALJ’s determination that the restrictions included in the ALJ’s RFC assessment
account for Griggs’ symptoms. Accordingly, because this court does not reweigh
the evidence, there is no reversible error in the ALJ’s credibility finding.
B.

Griggs’ Motion to Supplement the Record

Griggs also moves the court to make additional medical records part of the
record on appeal to be “used as medical evidence in determin[ing] her disability.”
Doc. 19 at 1. However, “[a] reviewing court is limited [to the record certified by
the Commissioner] in examining the evidence.” Cherry v. Heckler,760 F.2d 1186,
1193 (11th Cir. 1985). Consequently, when, as here, the Appeals Council has not
considered the evidence and made it part of the record, this court treats the
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evidence “as if it had been first presented to the district court and . . . evaluate[s]
the case under sentence six [of 42 U.S.C. § 405(g)].”3 Ingram v. Comm’r of Soc.
Sec. Admin., 496 F.3d 1253, 1268 (11th Cir. 2007) (quoting Milano v. Bowen,
809 F.2d 763, 766 11th Cir. 1987) (internal quotation marks omitted). Therefore,
the court will review Griggs’ motion as one for remand under sentence six for
consideration of new evidence by the Commissioner.
To obtain a remand under sentence six, the settled law in this circuit
requires Griggs to establish that (1) there is new, noncumulative evidence; (2) the
evidence is material; and (3) there is good cause for failure to submit the evidence
at the administrative level. Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986).
The new evidence is material if it is “relevant and probative so that there is a
reasonable possibility that it would change the administrative result.” Id.
According to Griggs, the restrictions contained in Dr. Lorn Miller’s medical
source statement (MSS), which Griggs submitted to the Appeals Council,4 shows
3

Sentence six states, in relevant part, that “[t]he court . . . may at any time order
additional evidence to be taken before the Commissioner, but only upon showing that there is
new evidence which is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
4

In connection with Griggs’ request for review, the Appeals Council explained why it
did not consider this evidence: “The Administrative Law Judge decided your case through
November 3, 2011. This new information is about a later time. Therefore, it does not affect the
decision about whether you were disabled beginning on or before November 3, 2011.” (R. 2).
Based on this determination, the Appeals Council did not include the submissions in the record,
and presumably returned the evidence to Griggs. See 20 C.F.R. § 404.976(b) (“If you submit
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that Griggs is unable to work.5 Doc. 10 at 14. Dr. Miller’s MSS indicates a
number of restrictions that would preclude work, including a limitation to less that
two hours sitting, and less than two hours standing/walking in an eight-hour
workday. Doc. 9 at 4. However, Dr. Miller’s MSS is unlikely to change the
administrative result because it is inconsistent with Dr. Miller’s treatment notes,
which show that on July 6, 2011, Griggs reported that her medications reduced her
low back pain, and denied any adverse side effects from her medications. (R.
531); see Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (physician’s
opinion may be rejected when it is inconsistent with his own medical records).
Although Griggs reported to Dr. Miller that her back pain “increases when she
participates in any activity for longer than fifteen minutes,” (R. 531), Dr. Miller

evidence which does not relate to the period on or before the date of the administrative law judge
hearing decision, the Appeals Council will return the additional evidence to you with an
explanation as to why it did not accept the additional evidence . . . .”).
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Griggs makes no attempt to explain how any of the other evidence attached to her
motion is chronologically relevant, or why it would likely change the administrative result.
Indeed, the vast majority of that evidence is either from well after the date of the ALJ’s decision,
doc. 9 at 9-23, 40-60, or was part of the record considered by the ALJ, doc. 24-33. There is a
single treatment note from prior to the date of the ALJ’s decision from Dr. Miller on October 26,
2011, which would be chronologically relevant. Doc. 9 at 37-38. However, Griggs has suggested
no good cause for her failure to submit that treatment note at the administrative level.
Accordingly, as to all of the new evidence, except Dr. Miller’s MSS, Griggs has failed to failed
to meet her burden of properly presenting the issue for decision. See Singh v. U.S. Att’y Gen., 561
F.3d 1275, 1278 (11th Cir.2009) (“[S]imply stating that an issue exists, without further argument
or discussion, constitutes abandonment of that issue and precludes our considering the issue on
appeal.”).
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advised Griggs “to begin a regular cardiovascular exercise program,” and to
“increase each week to a target of 15-20 minutes of brisk walking a day,” id. at
536. This instruction contradicts the severe restrictions indicated by Dr. Miller in
his MSS, and shows that the restrictions were based on Griggs’ subjective pain
complaints. See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir.
2004) (ALJ may reject a physician’s opinion when it “appears to be based
primarily on [a claimant’s] subjective complaints of pain.”). Because the ALJ
reasonably discredited Griggs’ subjective allegations, Dr. Miller’s MSS is unlikely
to change the administrative result. Accordingly, Dr. Miller’s MSS is not
material, and Griggs has failed to satisfy the requirements for obtaining a remand
under sentence six. Caulder, 791 F.2d at 877.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Griggs is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.

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DONE this 26th day of September, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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