Zimmerman v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 3/21/2016. (KEK)

FILED
2016 Mar-21 AM 10:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

CATHY ZIMMERMAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of the
Social Security Administration,
Defendant.

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Case No.: 4:14-cv-01711-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Cathy Zimmerman
seeks judicial review of a final adverse decision of the Commissioner of Social
Security. The Commissioner denied her claims for a period of disability and
disability insurance benefits and supplemental security income.

After careful

review, the Court affirms the Commissioner’s decision.
I.

PROCEDURAL HISTORY
Ms. Zimmerman applied for a period of disability and disability insurance

benefits and supplemental security income on January 20, 2012. (Doc. 8-6, pp. 4,
6). Ms. Zimmerman alleges that her disability began on October 29, 2010. (Doc.
8-3, p. 48; Doc. 8-6, p. 6). The Commissioner initially denied Ms. Zimmerman’s

claims on May 10, 2012. (Doc. 8-5, p. 2). Ms. Zimmerman requested a hearing
before an Administrative Law Judge (ALJ). (Doc. 8-5, p. 16). The ALJ issued an
unfavorable decision on April 23, 2013. (Doc. 8-3, pp. 24-35). On July 7, 2014,
the Appeals Council declined Ms. Zimmerman’s request for review (Doc. 8-3, p.
2), making the Commissioner’s decision final and a proper candidate for this
Court’s judicial review. See 42 U.S.C. §§ 405(g) and 1383(c).
II.

STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the

ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s findings. “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). In making this evaluation, the Court may not “decide the facts anew,
reweigh the evidence” or substitute its judgment for that of the ALJ. Winschel v.
Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal
quotations and citation omitted). If the ALJ’s decision is supported by substantial
2

evidence, the Court “must affirm even if the evidence preponderates against the
Commissioner’s findings.” Costigan v. Comm’r, Soc. Sec. Admin., 603 Fed. Appx.
783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F. 2d
1143, 1145-46 (11th Cir. 1991).
III.

SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that she is disabled, an ALJ

follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Ms. Zimmerman has not engaged in
substantial gainful activity since October 29, 2010, the alleged onset date. (Doc. 83

3, p. 29). The ALJ determined that Ms. Zimmerman suffers from the following
severe

impairments:

lumbar

spine

degenerative

disc

disease,

stenosis,

spondylolisthesis, status-post fusion osteoarthritis of the left knee, adhesive
capsulitis of the left shoulder, obesity, fibromyalgia, migraine headaches,
depression, anxiety, and alcohol abuse. (Doc. 8-3, p. 29). Based on a review of
the medical evidence, the ALJ concluded that Ms. Zimmerman does not have an
impairment or combination of impairments that meets or medically equals the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Doc. 8-3, pp. 30-32).
Next, the ALJ determined that Ms. Zimmerman has the RFC:
to perform light work, as defined in 20 CFR 404.1567(b) and
416.967(b), except that she is to avoid more than occasional kneeling,
stooping, crouching, crawling, balancing, or climbing of stairs or
ramps; she is to avoid all climbing of ropes, ladders or scaffolds, as
well as exposure to dangerous machinery or unprotected heights; and
she is restricted to following simple instructions, working with objects
rather than the general public, and without close supervision or
interaction with coworkers.
(Doc. 8-3, p. 32).
Based on this RFC, the ALJ concluded that Ms. Zimmerman is unable to
perform her past relevant work as a child care worker. (Doc. 8-3, p. 33). Relying
on testimony from a vocational expert, the ALJ found that jobs exist in the national
economy that Ms. Zimmerman can perform, including pricer or tagger, semiconductor marker, and wire cutter. (Doc. 8-3, p. 34). Accordingly, the ALJ
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determined that Ms. Zimmerman is not disabled as defined in the Social Security
Act. (Doc. 8-3, p. 35).
IV.

ANALYSIS
Ms. Zimmerman argues that she is entitled to relief from the ALJ’s decision

because: (1) the ALJ failed to properly consider Ms. Zimmerman’s pain consistent
with the Eleventh Circuit’s three part pain standard, and (2) the ALJ failed to
properly evaluate lay testimony from her husband. The Court disagrees.
A.

The ALJ properly considered Ms. Zimmerman’s subjective
complaints of pain.

“To establish a disability based on testimony of pain and other symptoms,
the claimant must satisfy two parts of a three-part test by showing ‘(1) evidence of
an underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.’”
Zuba-Ingram v. Commissioner of Social Sec., 600 Fed. Appx. 650, 656 (11th Cir.
(2015) (quoting Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per
curiam)). A claimant’s testimony coupled with evidence that meets this standard
“is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991) (citation omitted). If the ALJ discredits a claimant’s
subjective testimony, the ALJ “must articulate explicit and adequate reasons for
doing so.” Wilson, 284 F.3d at 1225. “While an adequate credibility finding need
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not cite particular phrases or formulations[,] broad findings that a claimant lacked
credibility . . . are not enough. . . .” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir.
1995) (per curiam).
The ALJ summarized Ms. Zimmerman’s testimony. (Doc. 8-3, p. 33). The
ALJ then properly recited the pain standard and found that Ms. Zimmerman’s
“medically determinable impairments could reasonably be expected to cause some
of the alleged symptoms.” (Doc. 8-3, p. 32). The ALJ also articulated explicit and
adequate reasons for rejecting Ms. Zimmerman’s testimony about the severity of
her pain.1
Ms. Zimmerman testified at her hearing that her fibromyalgia, migraines,
and surgery sites “always seem[] to cause pain whether I’m standing, or sitting, or
laying down, or walking, or carrying things. I just never can seem to not be in
pain.” (Doc. 8-3, pp. 47-48). Regarding her migraines, Ms. Zimmerman testified
that over a period of two years, she woke up every day with a headache. (Doc. 8-3,
p. 49). She received injections and saw specialists, but “it just seemed like it just
never ended.” (Doc. 8-3, p. 49). Ms. Zimmerman testified that she had had four
surgeries since 2010. She testified that she was still experiencing complications
from her last surgery in October 2012. (Doc. 8-3, p. 51).

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Ms. Zimmerman has not challenged the ALJ’s conclusions regarding her mental impairments.
Therefore, the Court considers only Ms. Zimmerman’s testimony concerning her physical
impairments and the ALJ’s corresponding findings.
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Ms. Zimmerman has trouble raising her arms due to pain. She explained
that she is unable to pick up her three year old son and “has never been able to
enjoy picking him up, and holding him like I should be able to do.” (Doc. 8-3, p.
51).

Ms. Zimmerman’s pain has aggravated her depression. She “has trouble

getting out of bed every day.” (Doc. 8-3, p. 51). Ms. Zimmerman explained that
her pain caused her to miss five or more days of work every month. (Doc. 8-3, p.
48). Because she missed so much work, Ms. Zimmerman could “never keep a
job.” (Doc. 8-3, p. 49).
When evaluating a claimant’s subjective symptoms, the ALJ may consider
such things as: (1) the claimant’s daily activities; (2) the nature and intensity of
pain and other symptoms; (3) precipitating and aggravating factors; (4) effects of
medications; (5) treatment or measures taken by the claimant for relief of
symptoms; and other factors concerning functional limitations. Moreno v. Astrue,
366 Fed. Appx. 23, 28 (11th Cir. 2010) (citing 20 C.F.R. § 404.1529(c)(3)).
As part of his credibility analysis, the ALJ noted that Ms. Zimmerman’s
medical records confirmed that she “underwent several surgical procedures since
the alleged onset date.” (Doc. 8-3, p. 33). Those surgical procedures took place on
the following dates: October 14, 2011; August 6, 2012; and August 24, 2012.

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(Doc. 8-9, p. 137; Doc. 8-10, pp. 54-55).2 In his opinion, the ALJ discussed
records from these surgeries and records concerning additional treatment that Ms.
Zimmerman received for her back, knee, and shoulder pain. (See Doc. 8-3, pp. 2930).
The ALJ cited consultative examiner Dr. Prem Gulati’s April 17, 2012
report. That report post-dates Ms. Zimmerman’s September 2008 and October
2011 surgeries.

Dr. Gulati found that Ms. Zimmerman “had normal nerves,

reflexes, sensation, motor functioning, [] grip strength” and negative straight leg
raising. (Doc. 8-3, p. 33; see also Doc. 8-10, pp. 34-36). The ALJ explained that
other than “mildly antalgic gait,” Dr. Gulati found “no particular limitations of
functioning.” (Doc. 8-3, p. 33).
The ALJ also referred to October 2012 treatment notes from Ms.
Zimmerman’s back surgeon, Dr. Larry Parker. In those notes, Dr. Parker indicated
that Ms. Zimmerman “was very pleased with the results of her [back] surgery, and
that she had full strength, sensation, and range of motion.” (Doc. 8-3, p. 33).
The ALJ explained that consultative examiner Dr. Lois Pope “opined that
[Ms. Zimmerman’s] alcohol abuse contributed to her mental limitations, but that
she could do whatever she was motivated to do.” (Doc. 8-3, p. 33). The ALJ also
noted that no “treating source has expressed an opinion regarding [Ms.
2

Ms. Zimmerman also had back surgery on November 24, 2008. (Doc. 8-9, p. 119). This
procedure took place approximately two years before the alleged onset date.
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Zimmerman’s] functional capacity or on the ultimate issue of disability.” (Doc. 83, p. 33).
Although the ALJ did not specifically list the factors outlined in 20 C.F.R. §
4040.1529(c)(3), it is clear that the ALJ thoroughly considered the treatment that
Ms. Zimmerman received over a number of years and the measures she has taken
to relieve her symptoms, and the ALJ rejected Ms. Zimmerman’s subjective
complaints based on this objective medical evidence. (See Doc. 8-3, pp. 29-30, 3233).
To support her allegations of disabling pain, Ms. Zimmerman relies on Dr.
Gulati’s statement in his April 2012 consultative report that Ms. Zimmerman was
scheduled to have surgery in the summer of 2012, and his opinion that Ms.
Zimmerman could not work until her rehabilitation was complete. (Doc. 11, pp.
14-15; see also Doc. 8-10, p. 36). Dr. Gulati’s statement that Ms. Zimmerman
could not work until her rehabilitation was complete after her scheduled surgery in
the summer of 2012 is not as persuasive as Ms. Zimmerman suggests. It is unclear
from the record whether Dr. Gulati meant that Ms. Zimmerman could not work
from the day he examined her in April 2012 until her rehabilitation was complete
or whether Dr. Gulati meant that Ms. Zimmerman currently could work but would
not be able to maintain gainful employment from the time of her summer 2012
surgery until her rehabilitation was complete. Dr. Gulati’s unremarkable
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examination findings and his failure to document functional limitations suggest
that as of April 2012, Ms. Zimmerman could work. (See Doc. 8-10, pp. 35-36).
Assuming that Dr. Gulati’s opinion was that Ms. Zimmerman could not work from
April 2012 until her rehabilitation was complete, the record contains no evidence
supporting Dr. Gulati’s statement.
During a May 24, 2012 office visit with Dr. John Greco, Ms. Zimmerman
complained of knee and shoulder pain.

(Doc. 8-10, p. 48).

Regarding Ms.

Zimmerman’s knee pain, Dr. Greco noted that he would try to get authorization to
perform a Synvisc One injection because previous cortisone injections had not
provided relief. (Doc. 8-10, p. 48). Dr. Greco diagnosed Ms. Zimmerman with
rotator cuff tendinitis/bursitis, and he gave Ms. Zimmerman an injection to treat
her shoulder pain. (Doc. 8-10, pp. 48-49). Dr. Greco recommended “a little bit of
therapy” and instructed Ms. Zimmerman to return in three to four weeks. (Doc. 810, p. 49).
Ms. Zimmerman saw Dr. Greco again on July 5, 2012. Dr. Greco noted that
the shoulder injection did not provide “that much relief.” (Doc. 8-10, p. 50). Dr.
Greco explained that he believed that shoulder surgery would “get her well.”
(Doc. 8-10, p. 51). Also during this visit, Dr. Greco injected Ms. Zimmerman’s
knee with Synvisc One. (Doc. 8-10, p. 51). After shoulder surgery, on July 27,
2012, Dr. Greco noted that Ms. Zimmerman was “pleased with her repair,” and he
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believed that “she [was] going to have a nice outcome.” (Doc. 8-10, p. 52). Dr.
Greco instructed Ms. Zimmerman to return in six weeks for a final visit. (Doc. 810, p. 52). Between May 24, 2012 and July 27, 2012, Dr. Greco placed no
restrictions on Ms. Zimmerman’s activities.
Consistent with Dr. Gulati’s prediction, Ms. Zimmerman had back surgery
on August 6, 2012 and August 24, 2012. Dr. Parker performed a lumbar fusion at
L4-5. (Doc. 8-10, pp. 54-55). During a follow up visit on September 2012, Ms.
Zimmerman complained of some pain in her back and leg, but Dr. Parker
commented that she was “getting better on a daily basis.” (Doc. 8-10, p. 57). Ms.
Zimmerman’s incision site was “healing well.” She had full range of motion in all
of her extremities, and her strength was 5/5 in all muscle groups. (Doc. 8-10, p.
57). Dr. Parker asked Ms. Zimmerman to return in six weeks. He recommended
that Ms. Zimmerman use a brace and encouraged her to engage in “physical
activities such as walking and doing activities around the home.” (Doc. 8-10, p.
57).
Ms. Zimmerman visited Dr. Greco on September 7, 2012.

Although Ms.

Zimmerman reported that her back surgery had “slowed down her shoulder,” Dr.
Greco noted:
I think all in all she is doing pretty well. She has a little bit of pain but
it is due to a little external rotation stiffness. By and large I think she
is doing fairly well though and I am going to continue to see her back
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in the office on an as-needed basis. But I think all in all she is going
to do very well.
(Doc. 8-10, p. 58).
Ms. Zimmerman saw Dr. Parker again on October 4, 2012. Dr. Parker
explained that Ms. Zimmerman was “doing very well and [was] pleased with the
outcome of her surgery. Overall she is showing significant improvement.” (Doc.
8-10, p. 59). Ms. Zimmerman had good range of motion in her hips, knees, and
ankles with no pain, crepitus, or deformity. (Doc. 8-10, p. 59). Dr. Parker noted
that he would wean Ms. Zimmerman out of her brace and place her in physical
therapy for her back and shoulder. (Doc. 8-10, p. 59). Dr. Parker asked Ms.
Zimmerman to return in four months. (Doc. 8-10, p. 59). Although Dr. Parker’s
October 4, 2012 treatment note references therapy, the record contains no evidence
of physical therapy or rehabilitation visits. The record also contains no evidence
suggesting that Ms. Zimmerman was unable to work while she completed her
therapy. Accordingly, despite Dr. Gulati’s statement that Ms. Zimmerman would
be unable to work until her rehabilitation was complete, Ms. Zimmerman has not
submitted evidence indicating that her impairments “ha[d] lasted or [could] be
expected to last for a continuous period of at least 12 months.” Bouler v. Comm’r
of Soc. Sec., 624 Fed. Appx. 728, 729 (11th Cir. 2015). Although social security
proceedings are inquisitorial, not adversarial, “claimants must establish that they

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are eligible for benefits.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,
1258 (11th Cir. 2007). Ms. Zimmerman has failed to carry her burden.
As part of her argument that the ALJ failed to properly evaluate her pain
under the pain standard, Ms. Zimmerman challenges the Commissioner’s decision
in light of evidence that she submitted to the Appeals Council after the date of the
ALJ’s decision. (Doc. 11, pp. 15-16). Because Ms. Zimmerman does not limit her
challenge to the ALJ’s decision, the Court construes Ms. Zimmerman’s appeal as
applicable to both the ALJ’s decision to deny benefits and the Appeals Council’s
decision to deny review based on the new evidence that Ms. Zimmerman
presented. “[A] federal district court must consider evidence not submitted to the
administrative law judge but considered by the Appeals Council when that court
reviews the Commissioner’s decision denying Social Security benefits.” Ingram
v., 496 F.3d at 1258. The Court has reviewed the evidence that Ms. Zimmerman
submitted to the Appeals Council; it does not provide a basis for relief from the
administrative decision in this case.
The new evidence consists of treatment notes from 2013 and early 2014.
(Doc. 8-10, pp. 70-88). In January 2013, Ms. Zimmerman saw Dr. Greco for pain
and tenderness in her shoulder.

Dr. Greco recommended another round of

injections. He also noted that Ms. Zimmerman had some pain in her knee, but she
had good stability, and Dr. Greco documented no limitations based on Ms.
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Zimmerman’s pain. (Doc. 8-10, p. 70). In May 2013, Ms. Zimmerman saw Dr.
Parker because she was experiencing back pain. (Doc. 8-10, p. 72). Dr. Parker
noted that Ms. Zimmerman’s August 2012 fusion site at L4-5 was “consolidating
nicely.” (Doc. 8-10, p. 72). Dr. Parker also noted that Ms. Zimmerman had
“minimal degenerative changes at the level above” the fusion site. (Doc. 8-10, p.
72). In May 2013 and August 2013, Ms. Zimmerman had back surgery to correct
the “advanced space collapse at L3-4.” (Doc. 8-10, pp. 72-73, 79, 82). Her prior
fusions at L4-5 remained solid. (Doc. 8-10, p. 80).
By August 29, 2013, Ms. Zimmerman was “doing pretty well from her
surgery.” (Doc. 8-10, p. 81). Dr. Parker noted that Ms. Zimmerman was “active
and taking care of her kids,” and she was “walking very well.” (Doc. 8-10, p. 81).
On October 16, 2013, Ms. Zimmerman reported to Dr. Parker that she was “feeling
pretty good.” Ms. Zimmerman was “upright and mobile.” Dr. Parker found that
she was “doing well.”

X-rays showed “good fusion at L3-4, L4-5, and L5-S1.”

(Doc. 8-10, p. 82). Dr. Parker asked Ms. Zimmerman to return in three months.
(Doc. 8-10, p. 82). In January 2014, Ms. Zimmerman complained of myofascial
pain. Dr. Parker suggested that Ms. Zimmerman try physical therapy; he placed no
restrictions on her activities. (Doc. 8-10, p. 83).
Thus, even though Ms. Zimmerman had back surgery twice after the ALJ
issued his opinion, neither surgery caused a treating physician to limit Ms.
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Zimmerman’s physical activity.

The record leaves little doubt that Ms.

Zimmerman has suffered from back, shoulder, and knee pain for several years, but
the pain was not significant enough to warrant restrictions on Ms. Zimmerman’s
activities while she received treatment for her pain.

Therefore, substantial

evidence supports the ALJ’s conclusion that Ms. Zimmerman can perform a
reduced range of light work despite her pain.
B.

The ALJ properly considered the lay testimony of Ms.
Zimmerman’s husband.

Testimony from Ms. Zimmerman’s husband does not change the Court’s
conclusion.

Lay testimony of family members is evidence of a claimant’s

subjective allegations of pain. See Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983). An ALJ does not err by failing to make specific credibility findings
regarding lay witness testimony if the ALJ’s credibility findings regarding the
claimant’s testimony sufficiently imply a rejection of the lay witness’s testimony.
See Osborn v. Barnhart, 194 Fed. Appx. 654, 666 (11th Cir.2006) (per curiam)
(unpublished) (“[I]f the ALJ fails to make an explicit credibility determination as
to a family member’s testimony or statements, . . . we will not find error if the
credibility determination was implicit in the rejection of the claimant’s
testimony.”) (citations omitted); see also East v. Barnhart, 197 Fed. Appx. 899,
901, n.3 (11th Cir. 2006) (finding that the ALJ did not err by failing to explicitly
accept or reject statements from the claimant’s mother where the information
15

essentially “duplicated and corroborated” the claimant’s testimony, which the ALJ
explicitly found not credible).
In this case, Mr. Zimmerman testified that Ms. Zimmerman was unable to
work due to back, leg, and shoulder pain. (Doc. 8-3, p. 60). Mr. Zimmerman
estimated that Ms. Zimmerman missed two or three days of work per month
because of her pain. (Doc. 8-3, p. 60). He has witnessed Ms. Zimmerman’s
difficulty standing and walking, and he testified that when Ms. Zimmerman has a
migraine, she is unable to function. (Doc. 8-3, p. 61). Mr. Zimmerman also
testified that he and the couple’s daughter perform the household duties that Ms.
Zimmerman no longer performs. (Doc. 8-3, p. 62).
The ALJ acknowledged Mr. Zimmerman’s testimony but did not review it in
detail or make an explicit credibility finding. (Doc. 8-3, p. 33). Because Mr.
Zimmerman’s testimony is substantially similar to and duplicative of Ms.
Zimmerman’s testimony about her pain (compare Doc. 8-3, pp. 47-52 with Doc. 83, pp. 60-63), the ALJ’s specific credibility determination regarding Ms.
Zimmerman’s testimony sufficiently implies a rejection of Mr. Zimmerman’s
testimony as well. See Osborn, 194 Fed. Appx. at 666.
V.

CONCLUSION
For the reasons discussed above, the Court finds that the ALJ’s decision is

supported by substantial evidence, and the ALJ applied proper legal standards.
16

The Court will not reweigh the evidence or substitute its judgment for that of the
Commissioner. Accordingly, the Court affirms the Commissioner. The Court will
enter a separate final judgment consistent with this memorandum opinion.
DONE and ORDERED this March 21, 2016.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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