Posey v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 1/11/2019. (AFS)

FILED
2019 Jan-11 AM 11:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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TRACY POSEY,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

Civil Action Number
2:17-cv-01462-AKK

MEMORANDUM OPINION
Tracy Posey brings this action pursuant to Section 405(g) of the Social
Security Act, 42 U.S.C. § 405(g), seeking review of the Administrative Law
Judge’s denial of disability insurance benefits, which has become the final decision
of the Commissioner of the Social Security Administration (“SSA”). For the
reasons explained below, the court AFFIRMS the decision denying benefits.
I.

Procedural History
Posey worked as a fast food worker and cook until she stopped working in

March 2014 due to her alleged disability.

Doc. 7-3 at 43.

Posey filed her

application for Disability Insurance Benefits (“DIB”) on September 10, 2014,
asserting that she suffered from a disability beginning on March 1, 2014, due to

status post endocarditis and aortic value replacement, obstructive pulmonary
disease, lumbar degenerative disc disease, and major depressive disorder. Doc. 77 at 9. After the SSA denied her application, Posey requested a formal hearing
before an ALJ. Doc. 7-6 at 4, 19. Ultimately, the ALJ entered a decision finding
that Posey was not disabled. Doc. 7-3 at 51. The Appeals Council affirmed,
rendering the ALJ’s decision the final decision of the Commissioner.

Id at 2.

Having exhausted her administrative remedies, Posey filed this action pursuant to
42 U.S.C. §§ 1383(c)(3) and 405(g). Doc. 11.
II.

Standard of Review
First, federal district courts review the SSA’s findings of fact under the

“substantial evidence” standard of review. 42 U.S.C. §§ 405(g), 1383(c); 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 Martin, 894 F2d at 1529 (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.” Id. (internal citations omitted).
If supported by substantial evidence, the court must affirm the Commissioner’s
factual findings, even if the evidence preponderates against the Commissioner. Id.
2

Credibility determinations are the province of the ALJ. Moore v. Barnhart,
405 F.3d 1208, 1212 (11th Cir. 2005). However, “[t]he testimony of a treating
physician must ordinarily be given substantial or considerable weight unless good
cause is shown to the contrary,” and the failure of the Secretary “to specify what
weight is given to a treating physician’s opinion and any reason for giving it no
weight” constitutes reversible error. MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986). Courts have found good cause to discount a treating physician’s
report when it is “not accompanied by objective medical evidence, . . . wholly
conclusory,” or “inconsistent with [the physician’s] own medical records.” Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d
580, 583 (11th Cir. 1991). In contrast to the opinion of a treating physician, “the
opinion of a nonexamining physician is entitled to little weight if it is contrary to
the opinion of the claimant’s treating physician.” Broughton v. Heckler, 776 F.2d
960, 962 (11th Cir. 1985).
Second, federal courts review the SSA’s conclusions of law de novo, see
Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir.1987), and “[f]ailure to apply the
correct legal standards is grounds not for remand but, for reversal.” Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988). No presumption attaches to either the
ALJ’s choice of legal standard or to the ALJ’s application of the correct legal
standard to the facts. Id.

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Finally, reviewing courts have the power “to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g) (emphasis added).
III.

Statutory and Regulatory Framework

An individual applying for DIB bears the burden of proving that she is
disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). To qualify, a
claimant must show “the inability 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 twelve months.” 42 U.S.C. § 423(d)(1)(A); 42
U.S.C. § 416(i)(I)(A). 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).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520. Specifically, the Commissioner must determine, in sequence:
(1)
(2)
(3)
(4)

whether the claimant is doing substantial gainful activity;
whether the claimant has a severe impairment;
whether the impairment meets or is medically equivalent to one
listed by the Secretary;
whether the claimant is unable to perform his or her past work;
and
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(5)

whether the claimant is unable to perform any work in the
national economy, based on his residual functional capacity.

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).
IV.

The ALJ’s Decision

The ALJ applied the five-step analysis for DIB claims, see McDaniel, 800
F.2d at 1030, and found that Posey satisfied step one because she had not engaged
in substantial gainful activity since March 1, 2014. Doc. 7-3 at 43. At step two,
the ALJ found that Posey has “severe impairments” caused by status-post
endocarditis and aortic valve replacement, chronic obstructive pulmonary disease,
lumbar degenerative disc disease, and major depressive disorder. Id. (citing 20
CFR 404.1520(c) and 416.920(c). At step three, the ALJ concluded that Posey’s
impairments did not meet the severity or medically equal the severity of one of the
impairments listed in 20 CFR Pt. 404, Subpt. P, App. 1, § 12.04 for affective
disorders and § 12.06 for anxiety-related disorders. Id. at 44. Next, the ALJ
determined Posey’s residual functional capacity (“RFC”) and found that Posey can
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“perform a range of work at the light exertional level” with limitations on postural
maneuvers, instructions, climbing, extreme temperatures, and exposure to
pulmonary irritants or moving machinery. Id. at 45. (citing 20 CFR 404.1529 and
416.929). Based on the RFC, and relying on the testimony of a vocational expert
(“VE”), at step four, the ALJ found that Posey could not return to her past relevant
work as a fast food worker, laborer, and cook. Id. at 50. The ALJ then proceeded
to step five, where based on Posey’s RFC, age, prior work experience, and the
VE’s testimony, the ALJ concluded that Posey is “capable of making a successful
adjustment to other work that exists in significant numbers in the national
economy,” including work as a marker, sales attendant, document preparer, and
table worker. Id. at 51. Therefore, the ALJ concluded that Posey was not disabled
from the alleged onset date through the date of her decision.
V.

Analysis
On appeal, Posey argues that the ALJ failed to properly evaluate (or

alternatively, failed to discredit) Posey’s reports of disabling pain and that the
ALJ’s determination of her RFC was not supported by substantial evidence. Doc.
11 at 10-12. In reviewing the ALJ’s opinion, the court finds that the ALJ properly
discredited Posey’s subjective pain testimony and weighed the medical record in
the RFC finding, and that the ALJ’s decision is due to be affirmed.

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A. Whether the ALJ Erred by Finding Posey’s Pain Testimony Unsupported
and Lacking Credibility
Posey argues that the ALJ erred by rejecting her subjective complaints of
pain resulting from her chronic obstructive pulmonary disease (COPD) and
congestive heart failure. Doc. 11 at 10-11. A plaintiff alleging disability because
of pain must meet additional criteria to prevail. This three-part “pain standard”1
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) evidence that the “objectively determined medical
condition is of such a severity that it can be reasonably expected to give rise to the
alleged pain.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th Cir. 1991). “If the
ALJ discredits subjective testimony, he must articulate explicit and adequate
reasons for doing so.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002);
see also Marbury v. Sullivan, 957 F.2d 837, 839–40 (11th Cir. 1992) (“After
considering a claimant’s complaints of pain, the ALJ may reject them as not
creditable, and that determination will be reviewed for substantial evidence.”).
At issue here is the ALJ’s finding that although Posey’s impairments could
reasonably cause pain and discomfort, her conditions are “not as severe as
alleged.” Doc. 7-3 at 49. Posey argues that the ALJ failed to explicitly discredit
any of Posey’s testimony, including complaints about shortness of breath, lower

1

See Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir. 1985).
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back pain, chest discomfort, and depression/fatigue. In reaching a decision, the
ALJ must consider “all of the available evidence, including [the claimant’s]
medical history, the medical signs and laboratory findings, and statements about
how . . . symptoms affect [the claimant].” 20 C.F.R. § 404.1529. However,
because a claimant has “voluminous case records containing many types of
evidence from different sources, it is not administratively feasible for [the ALJ] to
articulate in each determination or decision how [the ALJ] considered all of the
factors for all of the medical opinions and prior administrative medical findings in
[the claimant’s] case record.” 20 C.F.R. § 416.920(c). For the reasons stated
below, the court finds that Posey has failed to support her “allegations of pain with
objective medical evidence from an acceptable medical source that shows [she has]
a medical impairment(s) which could reasonably be expected to produce the pain
or other symptoms alleged.” 20 C.F.R. § 404.1529.
1. Shortness of Breath
“The ALJ can make credibility determinations regarding a claimant’s
subjective complaints and must provide specific reasons for the credibility
finding.” Ring v. Berryhill, 241 F. Supp. 3d 1235, 1245 (N.D. Ala. 2017), aff’d
sub nom. Ring v. Soc. Sec. Admin., Comm’r, 728 F. App’x 966 (11th Cir. 2018).
Although the “credibility determination does not need to cite particular phrases or
formulations . . . [,] it cannot merely be a broad rejection that is not enough to
enable the reviewing court to conclude that the ALJ considered the medical
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condition as a whole.” Id. (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005)). A review of the record here shows that the ALJ considered the medical
record which often contradicted or did not support Posey’s testimony about
experiencing chronic shortness of breath. The ALJ cited to Posey’s X-rays which
showed that, despite a diagnosis of bronchitis and COPD, Posey’s breathing
remained “unlabored” during the relevant period and “lung auscultation elicit[ed]
no wheezing, rhonchi, rales, or rubs.” Docs. 7-3 at 47; 7-11 at 75. In addition to
the X-rays, other medical reports in the record support the ALJ’s conclusion: (1)
Dr. Patricia Sanders noted that despite “patchy densities” in Posey’s lungs there
were also improvements and no new abnormalities in chest examinations and
pulmonary edema, doc. 7-9 at 5-15; (2) Dr. Hrudaya Nath noted improvements in
Posey’s bilateral pulmonary edema, id. at 18; (3) Dr. Louis A. Brunsting III
conducted a physical exam and noted that Posey had equal breath sounds,
“symmetrical chest wall expansion,” and “normal peripheral perfusion,” doc. 7-9 at
24; (4) Dr. Bobby Lewis noted in a reevaluation that Posey’s “lungs are clear to
auscultation, respirations are non-labored, breath sounds are equal, [and] . . . labs
came back unremarkable,” doc. 7-10 at 5-6; (5) Dr. Frank Seghatol-Eslami noted
that her “lungs are clear to auscultation, respirations are non-labored, [and] breath
sounds are equal,” doc. 7-11 at 27-28; and (6) Dr. Lin Huichuan noted that Posey
had no shortness of breath and Posey denied “any chest pain or problems,” doc. 7-

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12 at 59-60. Accordingly, the record supports the ALJ’s conclusion that Posey’s
allegations of shortness of breath were not as severe as Posey alleged.
2. Lower Back Pain
Similarly, the ALJ properly examined the medical evidence to discredit
Posey’s testimony about lower back pain. The ALJ noted that Dr. Sarah Rustin
reviewed Posey’s MRI and found “no acute abnormality of the lumbar spine, . . .
no evidence of abscess, . . . and only mild multilevel degenerative disease.” Doc.
7-13 at 2. The record shows that although Posey was diagnosed with sciatica, she
was prescribed with Flexeril, Methocarbamol, Neurontin, and Norco and reported
no complications or side effects. Doc. 7-3 at 47. After Posey slipped and fell on
the tile floor while doing laundry, she went to UAB Hospital where she
experienced throbbing and burning in her lower back, but Dr. Brittany Lamb noted
that her pain was “minimal in severity,” “ambulation did not exacerbate her
symptoms,” and there was “no swelling or deformities.” Doc. 7-13 at 30. During
subsequent examinations after her accident, Posey displayed a full range of motion
in her cervical and thoracic spine. Id at 2-11. And, during the hearing, Posey
testified about doing household activities and shopping.

Doc. 7-4 at 14-15.

Accordingly, the court finds that substantial evidence supports the ALJ’s finding
that Posey’s “reported levels of disabling pain . . . conflicted with other evidence in
the record.” Loveless v. Comm’r, Soc. Sec. Admin., 678 F. App’x 866, 869–70
(11th Cir. 2017).
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3. Chest Discomfort
The ALJ also found that Posey’s subjective complaints of chest discomfort
were unsupported by the medical evidence. To support this finding, the ALJ cited
to medical records from UAB Hospital indicating that Posey experienced some
chest pain but was doing “quite well” and her “intermittent chest pain was
moderate in severity.” Doc. 7-3 at 46-47. The ALJ also noted that Posey’s
echocardiogram indicated that her “right ventricular systolic functioning was
normal.” Id. Other medical evidence in the record also belies Posey’s complaints
of chest pain – Dr. John Owens found on several occasions that Posey’s “lungs are
grossly clear,” she had “no discrete pleural fluid collection or evidence of
pneumothorax,” and there was “no evidence of acute chest pathology,” docs. 7-11
at 13; 22, and Dr. Seghatol-Eslami noted that Posey had a “normal range of
motion” with “no acute distress,” id. at 25-28. Accordingly, the record supports
the ALJ’s determination that Posey’s complaints of disabling chest discomfort
were not credible.
4. Fatigue/Depression
A review of the record also shows that the ALJ properly rejected Posey’s
subjective complaints of depression symptoms including sadness, irritability,
frequent crying spells, low energy, motivational levels, and sleep disturbances.
Doc. 7-3 at 48.

The ALJ noted that Posey took Praxil and experienced no

complications or side effects from the treatment. Id. The ALJ also gave partial
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weight to Dr. John Haney, a one-time examining source, finding that Dr. Haney’s
assessment was based on Posey’s subjective complaints instead of objective
medical evidence. Id. During a psychological exam, Dr. Haney noted that Posey
was “sad and moderately anxious” but she was also “alert, polite, cooperative” and
“experienced no psychotic symptoms . . . such as auditory or visual hallucinations,
delusions, [or] ideas of reference or grandiosity.” Doc. 7-11 at 74. Posey denied
suicidal thoughts and also indicated that her depression stemmed from recent life
events including her physical health problems, death of her mom, and losing her
home. Id. Thus, Dr. Haney concluded that Posey’s “ability to function in most
jobs appeared moderately impaired” and her “psychological condition would
improve with ongoing successful psychiatric treatment.” Id.
Dr. Haney’s assessment is consistent with other psychological assessments
in the record. For example, a month after Dr. Haney met with Posey, Dr. Peter
Sims, whose opinion the ALJ gave partial weight, provided a mental residual
functional capacity assessment and noted that Posey could remember simple
instruction and is capable of making basic work related decisions. Doc. 7-3 at 49.
Lastly, a primary registered nurse noted that Posey had no thoughts of harming
herself, was oriented, and was cooperative. Doc. 7-12 at 40. Accordingly, the
court finds that the ALJ properly considered the entire record and stated specific
reasons for assigning weight to the opinions of the medical authorities regarding
Posey’s complaints of depression.
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B. Whether the ALJ erred by failing to properly weigh Posey’s medical
records in the RFC determination
Posey also argues that the ALJ’s determination of her RFC was unsupported
by the substantial medical evidence. The regulations define RFC as the most work
a person can do despite any limitations caused by his or her impairments. 20
C.F.R. § 404.1545(a)(1). When assessing a person’s RFC, the ALJ must consider
“all medically determinable impairments” and the extent to which the impairments
are consistent with medical evidence.

20 C.F.R. § 404.1545(a)(2).

When

assessing a person’s physical ability at this stage, the ALJ assesses “the nature and
extent of [a person’s] physical limitations” and the capacity for “work activity on a
regular and continuing basis.” 20 C.F.R. § 404.1545(b) (noting that a limited
ability to sit, stand, walk, lift, carry, push, pull may reduce a person’s ability to do
past or other work). Critically, “[a] claimant’s [RFC] is a matter reserved for the
ALJ’s determination . . .” Beegle v. Soc. Sec. Admin. Comm’r, 482 Fed. Appx. 483,
486 (11th Cir. 2012) (citing 20 C.F.R. § 404.1527(d)(2)).

In making this

determination, the ALJ is fully qualified to evaluate the medical evidence and is
not required to rely on medical opinion evidence regarding a claimant’s
capabilities. See, e.g., Green v. Soc. Sec. Admin., 223 Fed. Appx. 915, 923 (11th
Cir. 2007) (explaining that the ALJ is free to evaluate physician’s opinions
regarding the claimant’s capabilities “in light of the other evidence presented”)
(citations omitted).
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Here, Posey claims that she is unable to work due to complications from
endocarditis, aortic valve replacement, and lumbar degenerative disc disease. Doc.
11 at 11-12.

In reaching Posey’s RFC finding, the ALJ noted that Posey’s

testimony about her inability to work was inconsistent with her daily activities.
For example, although Posey testified about having trouble dressing, bathing, and
driving, she also indicated that she has no problems with maintaining a regular,
basic daily schedule, shopping, using money and managing finances,
concentration, and following simple instructions. Doc. 7-5 at 9, 22. Posey also
indicated that her daily routine includes doing laundry, washing dishes, dusting,
walking around the block, watching television, making lunch, and doing
housework. Doc. 7-8 at 19. She indicated that she prepares meals daily such as
sandwiches, eggs, bacon, and frozen meals with the help of her son, id. at 21, that
her hobbies and interests include reading, watching TV, and playing cards with her
son, id. at 23, and that she does not have problems with written instructions or
spoken instructions and gets along with authority figures, id. at 24-25. The record
supports the ALJ’s findings that Posey’s activities belie her contention that she is
unable to work.
Moreover, the ALJ consulted the VE in reaching his decision on Posey’s
RFC. The VE offered expert testimony in response to hypothetical questions about
a person of Posey’s age, education, work experience, and medical impairments.
Doc. 7-3 at 52-56. The VE concluded that Posey can perform the job of a marker,
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cashier, sales attendant, document prepare, stuffer, or table worker. Id. at 51.
Posey contends that the VE failed to consider jobs that would allow her to take two
unscheduled breaks outside of normal break times or the fact that she would miss
three full days of work each month. Docs. 7-8 at 22-24; 11 at 11-12. To the extent
that these are limitations a physician placed on Posey, Posey has failed to direct the
court (or the ALJ for that matter) to the relevant record. 2 The ALJ’s hypotheticals
must be based on a claimant’s actual limitations. See 20 CFR § 404.1545(a)(1)
(The ALJ must “consider all of [the claimant’s] medically determinable
impairments” of which the ALJ is aware.). Here, the ALJ cited to an assessment
performed by Dr. Richard Whitney, whose opinion the ALJ afforded significant
weight given his familiarity with the disability process, expertise in the field, and
his opinion’s consistency with the record. Doc. 7-3 at 47-48. Dr. Whitney noted
that Posey could lift and carry up to ten or twenty pounds, walk, sit, or stand for up
to six hours in a workday, engage in unlimited pushing and pulling, climb ramps or
stairs, and frequently stoop or kneel. Id. at 47. Dr. Whitney also noted that Posey
must avoid exposure to extreme temperatures, humidity, fumes, odors, poor
ventilation, and hazardous machinery. Id. The ALJ noted that Dr. Whitney’s
observations were consistent with the medical record which reflected that Posey
2

Although Posey’s attorney asked the VE during the hearing about these limitations, the medical
records do not support or confirm whether Posey in fact has such limitations. Moreover, the ALJ
posed hypothetical questions regarding Posey’s background and limitations, including alternating
between sitting and standing. Freeman v. Barnhart, 220 F. App’x 957, 960 (11th Cir. 2007)
(noting that the ALJ adequately analyzed and described the claimant’s functional capacity
because the hypotheticals included limitations on standing, sitting, and walking).
15

had mild multilevel degenerative disease, a normal Doppler flow pattern based on
an echocardiogram of her cardiovascular condition, no regional wall motion
abnormalities, and no acute musculoskeletal or respiratory deficits.

Id.

Accordingly, the court finds that the ALJ properly considered the medical record
and Posey’s inconsistent testimony in the RFC determination. See Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (affirming ALJ determination that the
claimant’s claims of work impairment were unsupported by her ability to care for
herself and manage daily activities of childcare and housework).
CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Posey is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching his decision. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
DONE the 11th day of January, 2019.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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