Nichols v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 8/8/2014. (AVC)

FILED
2014 Aug-08 PM 02:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
PAMELA LOUISE NICHOLS,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

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Case Number: 4:13-cv-01011-JHE

Defendant.
MEMORANDUM OPINION
Plaintiff Pamela Louise Nichols (“Nichols”) seeks review pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3) of the Social Security Act of a final decision of the Commissioner of
the Social Security Administration (“Commissioner”), denying her application for Supplemental
Social Security Income (“SSI”).

Nichols timely pursued and exhausted her administrative

remedies. The case is therefore ripe for review under 42 U.S.C. §§ 405(g) and 1383(c)(3). The
undersigned has carefully considered the record and, for the reasons stated below, Nichols’s
motion for remand is DENIED, and the Commissioner’s decision is AFFIRMED. 1
I. Factual and Procedural History
Nichols was a thirty-six year old female at the time of her hearing before the
Administrative Law Judge (“ALJ”) on December 2, 2011. (Tr. 69, 83). Nichols has a limited
education, (tr. 27, 130-31), and past relevant work as a housekeeper and supervisor of cleaners,
(tr. 27, 48-49, 131, 150-55).
1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties in this case have voluntarily consented to have a United States
Magistrate Judge conduct any and all proceedings, including trial and the entry of final
judgment. (Doc. 11).

Nichols filed her application for SSI on August 16, 2010, alleging an initial onset date of
February 2, 2010. (Tr. 110-16). Nichols’s application for SSI was denied, (tr. 58), and she
requested a hearing before an ALJ, (tr. 67). After a hearing, the ALJ denied Nichols’s claim on
February 10, 2012. (Tr. 11-32). Nichols sought review by the Appeals Council, but it declined
her request on March 29, 2013. (Tr. 1-6). On that date, the ALJ’s decision became the final
decision of the Commissioner. On May 28, 2013, Nichols initiated this action. (See doc. 1). In
response to the court’s briefing letter, (doc. 9), Nichols filed a “Brief in Support of Complaint,”
(doc. 12).
II. Standard of Review 2
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this Court is to determine whether the Commissioner’s decision is supported by
substantial evidence and whether proper legal standards were applied. Richardson v. Perales,
402 U.S. 389, 390, 91 S. Ct. 1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th
Cir. 2002). This court must “scrutinize the record as a whole to determine if the decision
reached is reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Id. It is “more than a scintilla, but
less than a preponderance.” Id.
This Court must uphold factual findings that are supported by substantial evidence.
However, it reviews the ALJ’s legal conclusions de novo because no presumption of validity

2

In general, the legal standards applied are the same whether a claimant seeks Disability
Insurance Benefits (“DIB”) or SSI. However, separate, parallel statutes and regulations exist for
DIB and SSI claims. Therefore, citations in this opinion should be considered to refer to the
appropriate parallel provision as context dictates. The same applies to citations for statutes or
regulations found in quoted court decisions.
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attaches to the ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala,
985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s application of the
law, or if the ALJ fails to provide the court with sufficient reasoning for determining the proper
legal analysis has been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936
F.2d 1143, 1145-46 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for SSI as well as establish entitlement for a period of disability, a claimant
must be disabled as defined by the Social Security Act and the Regulations promulgated
thereunder. 3 The Regulations define “disabled” as the “inability to do 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 12 months.” 20 C.F.R. § 416.905(a). To establish entitlement to disability
benefits, a claimant must provide evidence of a “physical or mental impairment which “must
result from anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 416.908.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 416.920(a)(4)(i–v). The Commissioner must determine in sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently engaged in substantial gainful activity;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the Secretary;
whether the claimant can perform his past work; and
whether the claimant is capable of performing any work in the national
economy.

See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2010); accord McDaniel v. Bowen, 800 F.2d
3

The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts 400 to 499,
revised April 1, 2013.
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1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied steps on and two, [she] will
automatically be found disabled if [she] suffers from a listed impairment. If the claimant does
not have a listed impairment but cannot perform [her] work, the burden shifts to the Secretary to
show that the claimant can perform some other job.” Pope v. Shalala, 998 F.2d 473, 477 (7th
Cir. 1993), overruled in part on other grounds, Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999);
accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Foote, 67 F.3d at
1559.
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found Nichols has not engaged in substantial gainful activity since
August 2, 2010, the application date. (Tr. 16). At Step Two, the ALJ found Nichols had the
following sever impairments: obesity, degenerative disc and joint disease of the lumbar spine,
mild scoliosis, possible mild peroneal neuropathy in the left lower extremity, and possible
fibromyalgia. (Tr. 16-17). At Step Three, the ALJ found Nichols does not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 17-18).
Before proceeding to Step Four, the ALJ determined Nichols’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R.
§ 416.945(a)(1). The ALJ determined Nichols has the RFC to perform sedentary work as
defined in 20 C.F.R. 416.967(a) except Nichols cannot operate foot controls. (Tr. 18-27). The
ALJ further states Nichols cannot climb stairs, ladders, ropes, or scaffolds; can occasionally

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stoop and crouch but cannot crawl or reach overhead; must avoid all exposure to excessive
vibration; is limited to unskilled work activity; and must be allowed to alternate between sitting
and standing at will. (Id.).
At Step Four, the ALJ determined Nichols is unable to perform any past relevant work.
(Tr. 27). At Step Five, the ALJ determined, based on Nichols’s age, education, work experience,
and residual function, jobs exist in significant numbers in the national economy Nichols can
perform. (Tr. 27). Therefore, the ALJ determined Nichols is not disabled and denied her claim.
(Tr. 28).
V. Analysis
This Court is limited in its review of the Commissioner’s decision in that the
Commissioner’s findings of fact must be reviewed with deference. See Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990) (citing Graham v. Bowen, 790 F.2d 1572, 1574-75 (11th Cir.
1986)). In contrast to factual findings, the Commissioner’s conclusions of law are subject to an
“exacting examination” or de novo review. See Martin, 894 F.2d at 1529 (citing Graham, 790
F.2d at 1574-75) (“The Secretary’s failure to apply the correct legal standards or to provide the
reviewing court with sufficient basis for a determination that proper legal principles have been
followed mandates reversal.”) (citations omitted). In particular, this court has a “responsibility to
scrutinize the record in its entirety to ascertain whether substantial evidence supports each
essential administrative finding.” See Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)
(citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)). 4 However, the court “abstains
from reweighing the evidence or substituting its own judgment for that of the [Commissioner].”

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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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Id. (citation omitted).

The court must review the Commissioner’s decision and determine

whether it is supported by substantial evidence and applied the correct legal standards. Wilson,
284 F.3d at 1221.
Nichols contends the ALJ’s decision should be reversed because the ALJ failed to
properly apply the pain standard, in light of the opinion of Dr. Turnley, Nichols’s treating
physician. (Doc. 12 at 7).
A. The ALJ Properly Applied the Pain Standard
The Eleventh Circuit “has established a three part ‘pain standard’ that applies when a
claimant attempts to establish disability through his or her own testimony of pain or other
subjective symptoms. 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.” Holt v. Sullivan, 921
F.2d 1221, 1223 (11th Cir. 1991).

Subjective testimony supported by medical evidence

satisfying the standard is sufficient to support a finding of disability. Id. “If the ALJ decides not
to credit such testimony, he must articulate explicit and adequate reasons for doing so.” Id.
Failure to articulate such reasons requires the testimony be accepted as true as a matter of law.
Id.
Nichols asserts the ALJ failed to use the proper legal standard in assessing her subjective
complaints of pain when the ALJ concluded Nichols’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms but found her statements
concerning intensity, persistence, and limiting effects of those symptoms were not credible.
(Doc. 12 at 7). Nichols notes the ALJ’s findings support a finding of an underlying medical

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condition under the first prong of the pain standard. (Id. at 9). She then states Nichols meets the
third prong of the pain standard because the objectively determined medical condition can
reasonably be expected to give rise to the claimed pain. (Id.). However, she does not address
her prior assertion the ALJ failed to use the proper legal standard. The ALJ concluded:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual functional capacity
assessment.
(Tr. 26-27). Nichols refers to this language on two separate occasions. (Doc. 12 at 7, 12). The
first clause clearly represents a finding under the pain test as set out in Holt. It acknowledges
medically determinable impairments (prong one) that could reasonably be expected to cause the
alleged symptoms (prong three). The ALJ applied the proper legal framework with regard to the
pain standard.
What Nichols actually takes issue with, as indicated by the final six pages of her analysis,
is the ALJ’s credibility analysis with regard to the testimony of Nichols and her treating
physician, Dr. Turnley. (See doc. 12 at 9-16). Her analysis begins with the statement, “Nichols
also meets prong [three] of the pain standard,” and ends with the statement, “Based on the
foregoing it is clear that Ms. Nichols meets the requirements of both prongs 1 and [3] of the pain
standard as out lined [sic] above.” However, as Nichols notes, once the general pain standard is
met (which the ALJ clearly acknowledges it is), the claimant’s testimony must be taken as true
unless the ALJ’s adverse credibility finding is supported by substantial evidence. See Foote v.
Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Hogard v. Sullivan, 733 F.Supp. 1465, 1469
(M.D. Fla. 1990) (“If proof of an underlying condition is established, then the Secretary must
establish a reasonable basis for rejecting the testimony if it was rejected. These reasons must be
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based upon substantial evidence.”).
Nichols confuses (1) the question of whether she has met the pain standard with (2) the
ALJ’s credibility finding on her and her physician’s testimony regarding the intensity and
limiting effects of that pain. The ALJ applied the proper legal framework to the first question
and answered it in Nichols’s favor: the pain standard is met. (Tr. 26-27). Therefore, Nichols’s
testimony is sufficient to establish disability if her testimony is otherwise credible.

This

subsequent question regarding the credibility of the witnesses as to the intensity and effect of the
alleged pain requires an entirely separate analysis. See Foote, 67 F.3d at 1561-62 (applying the
credibility analysis separately from the pain standard).
B. The ALJ’s Adverse Credibility Finding Regarding Nichols’s Subjective Pain
Testimony is Supported by Explicit and Adequate Reasons, as well as Substantial
Evidence
As noted above, the pain standard establishes a claimant’s testimony as sufficient to
support a finding of disability, but the ALJ must still make a credibility determination on the
claimant’s statements about the intensity and effect of that pain. See Foote, 67 F.3d at 1561-62;
Hogard v. Sullivan, 733 F.Supp. 1465, 1469 (M.D. Fla. 1990). The ALJ’s adverse credibility
determination must be supported by “explicit and adequate reasons,” Holt, 921 F.2d at 1223, and
substantial evidence, see Foote, 67 F.3d at 1561-62. The ALJ discussed Nichols’s medical
history in detail, (tr. 19-26), and determined her “subjective reports . . . are simply not consistent
with her reports in the pursuit of care or her presentation before providers,” (tr. 26).
Nichols points to “numerous complaints of pain to her treating physicians and the actions
taken by said physicians” as evidence supporting her subjective testimony. (Doc. 12 at 9-10).
First, Nichols points to her complaint to Dr. Turnley in March 2010 of low back pain and left leg
pain and discomfort. (Id. at 10) (citing tr. 250). Dr. Turnley noted Nichols was tender to

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palpitation in the area of the left SI joint and discharged her with a refill of her medications. (Id.)
(citing tr. 250). Next, Nichols points to a May 2010 visit to Dr. Turnley at which she complained
of chronic low back pain and discomfort with some left hip pain. (Id.) (citing tr. 251). Dr.
Turnley noted increased pain, added Flexiril to Nichols’s regimen, and recommended another
joint injection and another epidural block. (Id.) (citing tr. 251). Nichols also points to visits in
June 2010 and April and July 2011, showing continuing complaints of low back and leg pain
with slightly diminished range of motion and possible fibromyalgia. (Id. at 10-11) (citing tr.
252, 323, & 325). She also points to Dr. Turnley’s pain assessment in November 2011, noting
pain to such an extent as to be distracting to adequate performance of daily activities or work.
(Id. at 11) (citing (tr. 346). Lastly, Nichols notes Dr. Sathyan Iyer’s consultative physical
examination, which opined that Nichols suffered from low back pain and would have significant
impairment of function involving sitting and standing for long periods, walking, bending, lifting,
squatting, working at heights, working around moving machinery, carrying, and overhead
activities. (Id. at 11-12) (citing tr. 332).
The ALJ addressed each of these examinations, among others, and found evidence in
them contradicting their support of Nichols’s testimony. The ALJ begins her analysis with
Nichols’s visit to a neurologist in September 2009, several months before alleged onset, resulting
in an “unremarkable” examination beyond her complaint of a headache. (Tr. 20) (citing tr. 20809).

A visit to Dr. Turnley, an orthopedic specialist, in January 2010 resulted in a

recommendation to return to regular work activity. (Id.) (citing tr. 299). Claimant also filled out
a disclosure form stating she had no other impairments beyond the complaint regarding her back.
(Id.) (citing tr. 296). The ALJ acknowledged Nichols began taking Lortab around that time.
(Id.) Next, the ALJ addressed the March and May 2010 examinations, cited by Nichols, and

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noted, in addition to the notations of some pain, Dr. Turnley’s notes stated Nichols was “not
acutely ill” and she “ambulate[d] with a normal gait and station and [did] not require an assistive
device.” (Id. at 21) (citing tr. 250-51). In June 2010, still taking Lortab and Flexeril, Nichols
reported increased activity resulting in increased pain. (Id.) (citing tr. 252). There had been no
indication of inability to work between January and June from Nichols or Dr. Turley. (Id.). The
ALJ noted, before Nichols was to return again, she submitted her application for benefits. (Id.).
Despite Nichols’s allegations of severe impairment, there is no evidence she received medical
care between June 2010 and March 2011. (Id. at 23). The ALJ acknowledged the other postapplication examinations, cited by Nichols, noting with particular emphasis Dr. Turnley’s
confusion about the expressed symptoms in April 2011, at which time Dr. Turnely noted no
major impairments. (Id.) The ALJ also pointed out that the record indicates, after July 2011,
Nichols sought no additional treatment until November 3, 2011, shortly after she was notified of
the hearing before the ALJ. (Id. at 24, 25). 5
The medical record clearly contains evidence contrary to the cherry-picked evidence
Nichols cites; however, Nichols also asserts Dr. Turnley’s November 2011 Clinical Assessment
of Pain supports her testimony about the severity of the pain and was entitled to substantial, if
not controlling, weight. (Doc. 12 at 13-14). As with the claimant’s subjective testimony after
the pain standard is met, “[t]he ALJ must clearly articulate the reasons for giving less weight to
the opinion of a treating physician, and the failure to do so is reversible error.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause to reduce the weight given to a
5

The ALJ also discounted the consultative physician’s analysis to some degree because,
based on the other relevant medical data, his conclusions appeared to be based on Nichols’s
exaggeration of her symptoms. (Tr. 25). Regardless, the ALJ gave his report “significant, but
not great weight,” (id.), and, “in an abundance of caution, and as it [was] more beneficial to the
claimant,” adopted his recommendations of more severe limitations for the RCF even though the
ALJ believed the medical evidence did not necessarily warrant them, (id. at 27).
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treating physician’s opinion exists “when the: (1) treating physician’s opinion was not bolstered
by the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion
was conclusory or inconsistent with the doctor’s own medical records.” Phillips v. Barnhart,
357 F.3d 1232, 1241 (11th Cir. 2004). The ALJ expressly concluded Dr. Turnley’s November
2011 pain assessment was not supported by the medical evidence in the record and was not
supported by direct, contemporary examination or treatment by Dr. Turnley. (Tr. 25).
Nichols acknowledges the ALJ stated her reasons for not giving Dr. Turnley’s opinion
great weight, (tr. 15), but asserts the ALJ erred by failing to consider the following factors under
20 C.F.R. §§ 404.1527(c): “(1) the fact Dr. Turnley is an examining physician, (2) the fact Ms.
Nichols has maintained a treatment relationship with Dr. Turnley since 2011, [and] (3) the fact
the evidence also supports Dr. Turnley’s opinion through both objective imaging and Dr.
Turnley’s own treatment notes,” (id. at 14-15) (emphasis in original).
On the contrary, the ALJ not only acknowledged the examining and treatment
relationships between Dr. Turnley and Nichols but explicitly discounted them because there was
“no evidence of treatment from [Dr. Turnley] since July 2011,” which “greatly diminish[ed] the
value of her opinion.” (Tr. 25). Similarly, the ALJ explicitly referred to the unremarkable
findings of previous physical examinations and the lack of indication from Dr. Turnley the
claimant was severely incapacitated. (Id. at 26). Furthermore, as addressed extensively above,
the ALJ explicitly supported her conclusion Dr. Turnley’s medical notes, among those of other
physicians, did not support a finding of disabling intensity in Nichols’s pain. (Id. at 20-24).
Lastly, the ALJ pointed to direct inconsistencies in the November 2011 pain assessment itself,
stating Dr. Turnley’s conclusions (1) Nichols “suffers pain that is present to such an extent as to
be distracting to adequate performance of daily activities or work” but (2) “physical activities

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such as walking, standing, and sitting would increase pain, but not to the extent as to prevent
adequate functioning in such tasks” “are not reconcilable.” (Id. at 26).

Altogether, these

expressly articulated reasons apply the proper legal framework and provide good cause for
reducing the weight given to Dr. Turnley’s November 2011 pain assessment.
The record contains such relevant evidence as a reasonable person would accept as
adequate to support the ALJ’s conclusion Nichols’s testimony of severe, debilitating pain was
not credible in light of the medical evidence. As this constitutes substantial evidence and is
based on application of the proper legal standards, the undersigned may not override that
conclusion.
VI. Conclusion
Because the Commissioner’s decision is based on substantial evidence and the ALJ
applied proper legal standards, it is AFFIRMED and this action will be DISMISSED WITH
PREJUDICE. A separate order will be entered.
DONE this 8th day of August, 2014.

________________________________
T. MICHAEL PUTNAM
U.S. MAGISTRATE JUDGE

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