Spera-Vantilburg v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Judge James H Hancock on 5/12/2016. (JLC)

FILED
2016 May-12 AM 10:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARMELA SPERA-VANTILBURG, }
}
Plaintiff,
}
}
v.
} Case No.: 2:15-cv-1236-JHH
}
CAROLYN W. COLVIN, Acting
}
Commissioner of Social Security,
}
}
Defendant.
}

MEMORANDUM OPINION
Plaintiff, Carmela Spera-Vantilburg, brings this action pursuant to Section
205(g) of the Social Security Act (“the Act”) seeking review of the decision of the
Commissioner of Social Security (“Commissioner”) denying her application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. See
42 U.S.C. §§ 405(g), 1383(c)(3). For the reasons outlined below, the court finds that
the decision of the Commissioner is due to be affirmed because it is supported by
substantial evidence and proper legal standards were applied.
I.

Proceedings Below
Plaintiff filed her application for DIB protectively on September 5, 2012,

alleging a disability onset date of February 26, 2014. (R. 11, 127-28). Plaintiff’s
application was denied initially on January 18, 2013, (R. 64-77), and thereafter,

Plaintiff timely filed a request for a hearing. (R.84). Plaintiff’s request was granted,
and a video hearing was held before an Administrative Law Judge (“ALJ”) on
February 10, 2014, with Plaintiff appearing in Birmingham, Alabama, and the ALJ
presiding over the video hearing from St. Louis, Missouri. (R. 32-63). Plaintiff and
Vocational Expert (“VE”) Julia A. Russell provided testimony at the hearing. (R. 3263). Plaintiff was represented by an attorney at the video hearing. (R. 32-63).
In the February 26, 2014 decision, the ALJ determined that Plaintiff was not
eligible for DIB because she was not under a “disability,” as defined by the Act, from
August 4, 2011, through the date of the decision. (R. 21). Thereafter, Plaintiff
requested review of the ALJ decision by the Appeals Council. (R. 6-7). After the
Appeals Council denied Plaintiff’s request for review on May 22, 2015, (R. 1-4), that
decision became the final decision of the Commissioner, and therefore a proper
subject of this court’s appellate review.
At the time of the ALJ decision, Plaintiff was forty-six (46) years old, (R. 8,
36), with a ninth-grade education and a certificate in childhood development
assessment from a community college. (R. 179). She had past relevant work as a
photocopy operator, cashier, receptionist, clerical worker, customer service manager,
retail salesperson, and preschool teacher. (R. 52-59, 197-204). Plaintiff claims that
since her alleged onset date of August 4, 2011, she has been unable to work due to
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asthma, back and neck injury, arthritis, depression, high blood pressure, high
cholesterol, obesity, carpal tunnel syndrome, hormone imbalance and swollen feet.
(R. 13, 66, 127, 178).
At the February 2014 hearing, Plaintiff testified that she lives in a single level
house with her husband. (R. 14). She testified that she cooks dinner occasionally and
tries to do the dishes. (R. 14). She is able to drive and drove herself for one hour to
the hearing. (R. 14). As far as her daily activities, Plaintiff testified that she is
limited due to her physical impairments, but that her depression does not interfere
with her day to day activities. (R. 14).
In her function report, Plaintiff stated that she prepares meals 4 days a week
and that each meal takes her about an hour and a half. (R. 207). She stated that she
makes things like sandwiches, hot dogs, hamburgers and french fries. (R. 207). She
stated that her physical impairments make her take her time, and it is a strain to lift
pots and pans and open cans, jars and bottles. (R. 207). Plaintiff stated that she does
not cook like she used to because of her hands (carpal tunnel) and her back. (R. 209).
Plaintiff is able to shop for clothes and groceries, but it can take one to two hours
because she has to rest because her back hurts. (R. 208).
As far as housework, Plaintiff stated in her function report that she sweeps and
does small loads of laundry. (R. 207). She also cleans the bathroom and dusts. (R.
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207). Her stepdaughter helps her with chores that she cannot do on her own. (R.
207). She cleans the house about once a week and it takes Plaintiff four hours. (R.
207). Although Plaintiff stated that she sits outside every day, she does not do yard
work because it is too hard on her back. (R. 208).
The record also contains evidence regarding Plaintiff’s social interactions with
others. She spends time with her family and friends by talking on the phone, visiting
once a week and going on the computer once every few days. (R. 209). She goes to
church about once a month and to her friend’s house about once a week. (R. 209).
She is able to go on her own to these places. (R. 209).
II.

ALJ Decision
Determination of disability under the Social Security Act requires a five-step

analysis. See 20 C.F.R. § 404.1 et. seq. First, the Commissioner determines whether
the claimant is working. Second, the Commissioner determines whether the claimant
has an impairment which prevents the performance of basic work activities. Third,
the Commissioner determines whether claimant’s impairment meets or equals an
impairment listed in Appendix 1 of Part 404 of the Regulations. Fourth, the
Commissioner determines whether the claimant’s residual functional capacity can
meet the physical and mental demands of past work. The claimant’s residual
functional capacity consists of what the claimant can do despite her impairment.
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Finally, the Commissioner determines whether the claimant’s age, education, and past
work experience prevent the performance of any other work. In making a final
determination, the Commissioner will use the Medical-Vocational Guidelines in
Appendix 2 of Part 404 of the Regulations when all of the claimant’s vocational
factors and the residual functional capacity are the same as the criteria listed in the
Appendix. If the Commissioner finds that the claimant is disabled or not disabled at
any step in this procedure, the Commissioner will provide no further review of the
claim.
The court recognizes that “the ultimate burden of proving disability is on the
claimant” and that the “claimant must establish a prima facie case by demonstrating
that [s]he can no longer perform h[er] former employment.” Freeman v. Schweiker,
681 F.2d 727, 729 (11th Cir. 1982) (other citations omitted). Once a claimant shows
that she can no longer perform her past employment, “the burden then shifts to the
[Commissioner] to establish that the claimant can perform other substantial gainful
employment.” Id.
In her February 26, 2014 decision, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since her alleged onset of disability on August 4, 2011.
(R. 13 at Finding No. 1). She also found that, during the relevant time period,
Plaintiff had the following medically determinable impairments, which she deemed
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to be “severe”: asthma; carpal tunnel syndrome bilateral hands; multilevel
degenerative disc disease and degenerative joint disease of the lumbar and cervical
spine. (R. 13-15 at Finding No. 3). Nevertheless, the ALJ determined that Plaintiff
does not have an impairment or combination of impairments that meets or medically
equals the criteria of an impairment listed at 20 C.F.R. pt. 404, subpt. P, app. 1. (R.
15-16 at Finding No. 4). According to the ALJ, Plaintiff’s subjective complaints
concerning her alleged impairments and their impact on her ability to work are not
fully credible due to the degree of inconsistency with the medical evidence
established in the record. (R. 16-19 at Finding 5).
Thus, the ALJ found that Plaintiff retained the physical residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. 404.1567(b) except
as follows: she could frequently balance; occasionally stoop, kneel, crouch, crawl and
climb ramps and stairs; she could never climb ladders, ropes or scaffolds; she had to
avoid unprotected heights, vibrations, and concentrated exposure to extreme cold,
extreme heat, fumes, odors, dusts, gases, and poor ventilation; and she was able to
frequently handle and finger bilaterally. (R. 16 at Finding 5).
The ALJ sought testimony from VE Julia A. Russell at the administrative
hearing, and she posed several hypothetical questions to Russell regarding different
scenarios of functional capacity.

(R. 58-62).
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With Russell’s help, the ALJ

determined that Plaintiff is able to perform her past relevant work, (R. 19 at Finding
No. 6), and in the alternative she concluded that Plaintiff could perform other “light
work” occupations which exist in significant numbers in the national economy,
including occupations such as a routing clerk (Dictionary of Occupational Titles 7
(“DOT”) § 222.687-022), of which approximately 12,300 such jobs exist in Alabama
and 330,000 nationwide, sorter, (DOT § 569.687-022), of which 2,800 such jobs exist
in Alabama and 164,000 nationwide, and machine tender (DOT § 556.685-062) of
which approximately 65,000 nationwide. (R. 21 at Finding No. 6). Accordingly, the
ALJ found that Plaintiff was not under a “disability,” as defined by the Act, at any
time from August 4, 2011, through the date of the decision. (R. 21 at Finding No. 7).
III.

Plaintiff’s Argument for Remand or Reversal
Plaintiff seeks to have the ALJ’s decision, which became the final decision of

the Commissioner following the denial of review by the Appeals Council, reversed,
or in the alternative, remanded for further consideration. (Doc. # 14). Plaintiff’s
arguments focus on the ALJ’s RFC finding, which she contends was not supported
by substantial evidence and/or was derived by the application of improper legal
standards. Specifically, Plaintiff contends that the RFC finding: (1) improperly
discredits her subjective complaints under the Eleventh Circuit “pain standard;” (Doc.

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# 14 at 5-9) and (2) failed to properly articulate good cause for according less weight
to the opinion of her treating physician. (Doc. # 14 at 9-12).
IV.

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. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g) and
1383(c) mandate 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, 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 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
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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.
V.

Discussion
Against that backdrop of applicable standards, the court rejects Plaintiff’s

request for remand and/or reversal. As noted earlier, Plaintiff’s arguments centers on
the ALJ’s RFC calculation (through the application of the pain standard and
consideration of Plaintiff’s treating physician), which the court finds to be supported
by substantial evidence and the application of proper legal standards. The court has
carefully considered each of Plaintiff’s argument, the analysis of which follows.
A.

The ALJ Properly Discredited Plaintiff’s Pain Complaints Pursuant to the
Pain Standard
Plaintiff first challenges the ALJ’s assessment of her subjective complaints

because she contends the ALJ “relie[d] upon isolated notations in the record to
support her findings and failed to properly consider the medical evidence as a whole
which supports a finding of disability.” (Doc. # 14 at 6.) Specifically the Plaintiff
points to the following evidence as supporting her subjective complaints of pain: (1)
an April 19, 2004 MRI of the cervical spine that showed degenerative changes; (2)

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September 12, 2012 MRIs of her cervical and lumbar spines which show multilevel
degenerative disc disease and degenerative joint disease; (3) treatment notes from her
orthopedist; and (4) a consultative examination th Dr. Frederick Ernst. (Doc. #14 at
6-9).
It is axiomatic that the Act and its related regulations provide that a claimant’s
statements about pain or other symptoms will not alone establish disability. 42 U.S.C.
§ 423(d)(5)(A); 20 C.F.R. § 416.929. Rather, medical signs and laboratory findings
must be present to show a medical impairment that could reasonably be expected to
produce the symptoms alleged. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991). When, as here, a claimant alleges disability through subjective complaints of
pain or other symptoms, the Eleventh Circuit’s “pain standard” for evaluating these
symptoms requires: (1) evidence of an underlying medical condition, and either (2)
objective medical evidence confirming 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 cause the alleged pain. See 20 C.F.R.
§ 404.1529; Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Holt, 921 F.2d at
1223; Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986). If the ALJ fails to
credit a claimant’s pain testimony, he must articulate reasons for that decision. 42
U.S.C. § 423(d)(5)(A).
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After the application of the three-pronged pain standard, Eleventh Circuit
jurisprudence requires a secondary inquiry, which evaluates the severity, intensity,
and persistence of the pain and the symptoms a claimant actually possesses. Indeed,
there is a difference between meeting the judicially created pain standard and having
disabling pain; meeting the pain standard is merely a threshold test to determine
whether a claimant’s subjective testimony should even be considered at all to
determine the severity of that pain. See 20 C.F.R. § 416.929(b) (2006); Marbury v.
Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“The Secretary must consider a
claimant’s subjective testimony of pain if [the pain standard is met].”). After
considering a claimant’s complaints of pain, an ALJ may then “reject them as not
creditable.” Marbury, 957 F.2d at 839. Although a reversal is warranted if the ALJ’s
decision contains no indication that the three-part pain standard was properly applied,
Holt, 921 F.2d at 1223, the Eleventh Circuit has held that an ALJ’s reference to 20
C.F.R. § 404.1529, along with a discussion of the relevant evidence, demonstrates the
ALJ properly applied the pain standard. Wilson v. Barnhart, 284 F.3d 1219, 1225-26
(11th Cir. 2002).
In this case, the ALJ’s analysis comports with the requirements of the pain
standard for evaluating Plaintiff’s subjective complaints, indicating that proper legal
standards were applied in her analysis and that she considered Plaintiff’s symptoms
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and subjective complaints in light of the steps outlined above. The ALJ reached her
conclusions after a thorough review of the opinions of Plaintiff’s treating and
examining sources, which support her ultimate determination.

See C.F.R. §

404.1529(c)(2).
Although the ALJ determined that the objective evidence establishes medically
determinable impairments that could produce Plaintiff’s alleged symptoms, (R. 17),
she nevertheless found that Plaintiff’s statements about the intensity, persistence and
limiting effects of those impairments are not entirely credible. (R. 17). Plaintiff
disagrees and argues that the ALJ “picked and chose” among medical treatment notes
to support her conclusion and ignored various evidence that Plaintiff contends
support her allegations. (Doc. # 14 at 6-9). She points to the following evidence as
supporting her subjective complaints of pain: (a) 2004 MRI of the cervical spine that
showed degenerative changes (R. 267); (2) September 2012 MRIs of the cervical and
lumbar spines, also showing multilevel degenerative disc disease and degenerative
joint disease (R. 366-68); (3) treatment notes from Dr. Srinivas Mallempati, her
orthopedist, who described the results of the MRI as showing multilevel disc disease
and degenerative joint disease and who documented tenderness and a limitation of
flexion in the cervical and lumbar spine (R. 363); and (4) a consultative examination
by Dr. Frederick Ernst on January 10, 2013). (R. 387-91). (Doc. # 14 at 6-9).
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As to the 2004 and 2012 MRIs, the ALJ did not ignore them as insinuated by
Plaintiff. Rather, she addressed them in detail (R. 17) and concluded that while the
objective imaging results showed degenerative disc disease of the cervical and lumbar
spine and degenerative joint disease, they failed to support the degree of limitation
alleged by Plaintiff. (R. 17). Similarly, Plaintiff considered the treatment notes from
Dr. Mallempati, (R. 387-91), and based in part on those notes, the ALJ assessed
multilevel degenerative disc disease and degenerative joint disease as severe
impairments. That being said, however, the ALJ concluded, based on her thorough
analysis of Dr. Mallempati’s records (R. 17), that those treatment notes failed to
support the degree of limitation alleged by Plaintiff. (R. 16-17). Finally, the ALJ
expressly considered the consultative examination by Dr. Ernst. (R. 18, 387-391).
Again, the ALJ concluded that despite some positive findings, Dr. Ernst’s report
failed to support the disabling level of musculoskeletal limitations alleged by
Plaintiff. (R. 18, 387-391). Plaintiff’s arguments ultimately amounts to nothing more
than a disagreement with the ALJ’s credibility finding and does not point to any true
error in the ALJ’s consideration of the evidence in assessing Plaintiff’s credibility.
In conclusion, the court finds that the ALJ did not err in discrediting Plaintiff’s
subjective complaints. Given the record as a whole, substantial evidence supports
the ALJ’s determination that Plaintiff’s allegations of disabling limitations were not
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entirely credible. See 42 U.S.C. §§ 423(d)(5)(A), 1382c(a)(3)(H)(I); 20 C.F.R. §§
404.1512(a), (c), 404.1529(a); Ellison, 355 F.3d at 1276.
B.

The ALJ Properly Considered the Doctors’s Opinions in Assessing
Plaintiff’s RFC.

According to Plaintiff, “[t]he Commissioner’s decision should be reversed
because the ALJ failed to properly articulate good cause for according less weight to
the opinion of Plaintiff’s treating physician when finding that the Plaintiff was not
disabled.” (Doc. # 14 at 9). To the contrary, the court finds that the ALJ applied
proper legal standards when weighting the opinions of Plaintiff’s doctors, and her
conclusions are supported by substantial evidence.
The weight properly afforded to a medical opinion regarding the nature and
severity of a claimant’s impairments depends upon a number of factors, including the
source’s examining and treating relationship with the claimant, the evidence
presented to support the opinion, the consistency of the opinion with the record as a
whole, and the speciality of the medical source. See 20 C.F.R.§ 416.927(d). The
opinion of a physician, even a treating physician, may properly be discounted for
good cause. Crawford v. Commissioner, 363 F.3d 1155, 1159-60 (11th Cir. 2004).
Indeed, although a treating physician’s opinion is typically given “substantial or
considerable weight,” that opinion may deserve less weight under the following

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circumstances: “(1) [the] treating physician’s opinion was not bolstered by the
evidence; (2) [the] evidence supported a contrary finding; or (3) [the] treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2003) (affirming the
ALJ’s decision to give little weight to a treating physician’s opinion due to several
specific contradictions between the physician’s opinion and other evidence of record).
Nonetheless, if the ALJ has failed to articulate “good cause” for assigning less weight
to a treating physicians’s opinion, reversible error has occurred. Lewis, 125 F.3d at
1440.
Here, Plaintiff’s treating physician, Dr. Zaremba, completed a “Physician’s
Assessment of Pain on August 23, 2013. (R. 398). In it, he checked the box
indicating his opinion that Plaintiff suffers from “severe” pain that “would preclude
the activity precipitating the pain.” (R. 398). He further checked the box for “muscle
spasm” and “x-ray” as “objective signs of pain.” (R. 398). He indicated that Plaintiff
would “frequently” need rest periods throughout “the day to walk about or lie down
to relive [sic] pain.” (R. 398). Finally, he stated that, in his opinion, Plaintiff would
have to miss three or more days of work per month as a result of her condition. (R.
398).

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The ALJ gave “little weight” to the opinion of Dr. Zaremba when finding the
Plaintiff capable of a reduced range of light work. (R. 19). Specifically, the ALJ
determined that Dr. Zaremba’s opinion was “inconsistent with the objective medical
evidence including his own treatment notes.” (R. 19). Further, although the ALJ
acknowledged that Plaintiff complained of pain to Dr. Zaremba, she concluded that
his “physical findings and objective imagine results do not support the opinion that
the claimant would need to miss 3 days of work per month. (R. 19).

Plaintiff

contends that the ALJ’s findings are not supported by substantial evidence. (Doc.
#14 at 10-12). The court disagrees.
A review of the evidence in the record, including that highlighted by Plaintiff
in her brief, does not support the opinion of Dr. Zaremba in his August 23, 2103
assessment. Dr. Zaremba’s treatment notes do not contain any abnormal physical
findings that would support his opinion. (R. 19, 328, 332, 335, 337-40, 345-47, 349,
356-57, 396-97). Instead, the evidence relied upon by Plaintiff merely documents her
own subjective complaints of pain to Dr. Zaremba. (R. 310, 346, 397). Such
evidence is not a proper basis for a medical opinion.1 Crawford, 363 F.3d at 1159-60;
1

As to the nerve conduction study documenting “mild to moderate” carpal tunnel syndrome, the
ALJ considered this, found carpal tunnel syndrome to be a severe impairment, and imposed
limitations based on it. (R. 13, 16, 18-19). The ALJ noted that there was no evidence of widespread
polyneuropathy and that Dr. Ernst noted normal gross and fine motor skills and a normal
neurological examination. (R. 18). It is not clear whether Dr. Zaremba relied on carpal tunnel
syndrome in giving his opinion of debilitating pain. (TR. 398).

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Lacina v. Comm’r, Soc. Sec. Admin., 606 F. App’x 520, 528 (11th Cir. 2015);
Markuske v. Comm’r of Soc. Sec., 572 F. App’x 762, 766-67 (11th Cir. 2014).
Additionally, the objective imaging results do not support Dr. Zaremba’s
opinion. Those results revealed generally mild or moderate abnormalities. (R. 17,
19, 267, 366-68). Further, the 2004 MRI as well as treatment notes from 2004 that
Plaintiff relies upon (Doc. #14 at 10-11) are stale and irrelevant because they predate
her alleged onset date by seven years. Plaintiff was able to work for years afterwards.
(R. 38, 44).
Finally,

records from Dr. Mallempati (R. 362-68) do not support Dr.

Zaremba’s opinion of debilitating pain, as alleged by Plaintiff. (Doc. #14 at 11-12).
Again, she cites her own subjective complaints and reports of the medications she
took, which are not a proper basis for an opinion. See 20 C.F.R. § 404.1527(c);
Crawford, 363 F.3d at 1159-60; Lacina, 606 F. App’x at 528; Markuske, 572 F.
App’x at 766-67. As to Dr. Mallempati’s notes documenting some positive findings,
as well as the 2012 MRIs, as explained by the ALJ, these MRIs and Dr. Mallempati’s
notes simply did not support a conclusion that Plaintiff had limitations beyond those
the ALJ assessed in the RFC. (R. 17).

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In sum, Plaintiff failed to show that the ALJ improperly considered the
opinions of Dr. Zaremba. Substantial evidence supports the ALJ’s evaluation of the
medical source opinions and her assessment of Plaintiff’s RFC.
VI.

Conclusion
For all of these reasons, the court concludes that the ALJ’s determination that

Plaintiff is not disabled is supported by substantial evidence and proper legal
standards were applied in reaching this determination. The Commissioner’s final
decision is due to be affirmed, and a separate order in accordance with this
memorandum opinion will be entered.
DONE this the

12th

day of May, 2016.

SENIOR UNITED STATES DISTRICT JUDGE

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