Mitchell v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 7/11/16. (SMH)

FILED
2016 Jul-11 PM 01:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MICHAEL L. MITCHELL,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. 4:15-CV-0690-SLB

MEMORANDUM OPINION
Plaintiff Michael L. Mitchell brings this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of the final decision of the Commissioner of Social Security denying
his application for a period of disability and disability insurance benefits [DIB]. After review
of the record, the Commissioner’s submission, and the relevant law, the court is of the
opinion that the Commissioner’s decision is due to be affirmed.
I. PROCEDURAL HISTORY
Mr. Mitchell filed an application for a period of disability and DIB on January 23,
2012, alleging a disability onset date of December 31, 2011. (See doc. 7-3 at R.11; see also
doc. 7-6 at R.141.)1 The application was denied initially on April 3, 2012. (Doc. 7-3 at R.11;
doc. 7-5 at R.79.) Thereafter, Mr. Mitchell requested a hearing before an Administrative

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Reference to a document number, (“Doc. __”), refers to the number assigned to each
document as it is filed in the court’s record. References to page numbers in the
Commissioner’s record are set forth as (“R.__”).

Law Judge [ALJ], (doc. 7-5 at R.84), which was held on August 21, 2013, (doc. 7-3 at R.31).
Following the hearing, the ALJ found that Mr. Mitchell was not disabled; therefore, he
denied Mr. Mitchell’s applications for a period of disability and DIB on November 21, 2013.
(Doc. 7-3 at R.24.)
Mr. Mitchell asked the Appeals Council to review the ALJ’s decision. (See id. at
R.6.) The Appeals Council denied the request for review, stating that it had “found no reason
under [its] rules to review the [ALJ’s] decision.” (Id. at 1.) Therefore, “the [ALJ’s] decision
is the final decision of the Commissioner of Social Security in [Mr. Mitchell’s] case.” (Id.)
Mr. Mitchell filed an appeal in this court on April 24, 2015. (Doc. 1.)
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is a
narrow one: “Our review of the Commissioner’s decision is limited to an inquiry into
whether there is substantial evidence to support the findings of the Commissioner, and
whether the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court
gives deference to factual findings. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.
1991). The court “may not decide the facts anew, reweigh the evidence, or substitute [its]
judgment for that of the [Commissioner], rather [it] must scrutinize the record as a whole to
determine if the decision reached is reasonable and supported by substantial evidence.”
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler,

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703 F.2d 1233, 1239 (11th Cir.1983)) (internal quotations and other citation omitted). “The
Commissioner’s factual findings are conclusive if supported by substantial evidence.”
Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990);
Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)). “Substantial evidence” is “more than
a scintilla and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1178 (11th
Cir. 2011) (internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936
F.2d at 1145. “No . . . presumption of validity attaches to the [Commissioner’s] conclusions
of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
III. DISCUSSION
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential evaluation
to determine whether a claimant is eligible for a period of disability and DIB. See 20 C.F.R.
§ 404.1520(a)(1)-(2); see also Bowen v. City of New York, 476 U.S. 467, 470 (1986). “[A]n
individual shall be determined to be under a disability only if his physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy, regardless of whether
such work exists in the immediate area in which he lives, or whether a specific job vacancy

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exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. §
423(d)(2)(A).
The specific steps in the evaluation process are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations
define “substantial gainful activity” as “work activity that is both substantial and gainful.”2
20 C.F.R. § 404.1572. If the claimant is working and that work is substantial gainful activity,
the Commissioner will find that the claimant is not disabled, regardless of the claimant’s
medical condition or his age, education, and work experience. 20 C.F.R. § 404.1520(b).
“Under the first step, the claimant has the burden to show that [he] is not currently engaged

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The regulations state:

(a) Substantial work activity. Substantial work activity is work activity that
involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid less,
or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do
for pay or profit. Work activity is gainful if it is the kind of work usually done
for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like taking
care of yourself, household tasks, hobbies, therapy, school attendance, club
activities, or social programs to be substantial gainful activity.
20 C.F.R. § 404.1572.
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in substantial gainful activity.” Reynolds-Buckley v. Commissioner of Social Sec., 457 Fed.
Appx. 862, 863 (2012).3
The ALJ found that Mr. Mitchell had not engaged in substantial gainful activity since
December 31, 2011, the alleged onset date. (Doc. 7-3 at R.13.)
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner must
next determine whether the claimant suffers from a severe impairment or combination of
impairments that significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c). “[A] ‘physical or mental impairment’
is an impairment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3). The regulations provide: “[I]f you do not have any
impairment or combination of impairments which significantly limits your physical or mental
ability to do basic work activities, we will find that you do not have a severe impairment and
are, therefore, not disabled. We will not consider your age, education, and work experience.”
20 C.F.R. § 404.1520(c). “An impairment can be considered as not severe only if it is a
slight abnormality which has such a minimal effect on the individual that it would not be

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Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
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expected to interfere with the individual’s ability to work, irrespective of age, education, or
work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R.
§ 404.1521(a).

A complainant may be found disabled based on a combination of

impairments even though none of the individual impairments alone are disabling. Walker v.
Brown, 826 F.2d 996, 1001 (11th Cir. 1985); see also 20 C.F.R. § 404.1523. A claimant has
the burden to show that he has a severe impairment or combination of impairments.
Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Mr. Mitchell had “the following severe impairments: status post
bilateral bunionectomy; status post bilateral arthrodesis with subtalar joint implant;
degenerative joint and disc conditions of C5-6, C6-7; old thoracic fractures; spondylolisthesis
at L5, and mild scoliosis (20 C.F.R. 404.1520(c)).” (Doc. 7-3 at R.13.) He also found that
“there is medically determinable hypertension, tachycardia, hiatal hernia with reflux disease,
and dysuria that are nonsevere and impose no more than minimal limitations at any point,”
and that Mr. Mitchell had a “history [of] depression and anxiety,” which did “not affect his
capacity for mental and physical work activity.” (Id. at R.16, R.17.)
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets or is equivalent to any one of the listed
impairments, which are impairments that are so severe as to prevent an individual with the
described impairment from performing substantial gainful activity.

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20 C.F.R.

§404.1520(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404, Subpart P, Appendix 1 [The Listings].
If the claimant’s impairment meets or equals an impairment in the Listings, the
Commissioner must find the claimant disabled, regardless of the claimant’s age, education,
and work experience. 20 C.F.R. § 404.1520(d). The claimant has the burden of proving that
his impairment meets or equals the criteria contained in one of the Listings.
Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Mr. Mitchell did not have an impairment or combination of
impairments that met or medically equaled one of the impairments in the Listings. (Doc. 7-3
at R.17.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment or combination of impairments does not meet or equal the criteria
of a Listing, the claimant must prove that his impairment or combination of impairments
prevents him from performing his past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv),
(f). At step four, the Commissioner “will first compare [her] assessment of [the claimant’s]
residual functional capacity [RFC] with the physical and mental demands of [the claimant’s]
past relevant work. 20 C.F.R. § 404.1560(b). “Past relevant work is work that [the claimant
has] done within the past 15 years, that was substantial gainful activity, and that lasted long
enough for [him] to learn to do it. 20 C.F.R. § 404.1560(b)(1). If the claimant is capable of
performing his past relevant work, the Commissioner will find he is not disabled. 20 C.F.R.
§ 404.1560(e). The claimant bears the burden of establishing that the impairment or

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combination or impairments prevents him from performing past work. Reynolds-Buckley,
457 Fed. Appx. at 863.
The ALJ found that Mr. Mitchell could perform a limited range of light work; he
found:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 C.F.R. 404.1567(b)4 except the claimant can sit up to three hours without
limitation. The claimant can sit at least six hours over the course of an
eight-hour workday. The claimant can stand and/or walk up to two hours
without interruption and a total of six hours over the course of an eight-hour
workday. The claimant cannot walk on uneven terrain. The claimant can
frequently use his upper extremities for reaching in all directions, pushing,
pulling, and handling. He does not suffer any additional manipulative
limitation. The claimant can occasionally use his lower extremities for
pushing, puffing, and the operation of foot controls. The claimant cannot
climb ladders, ropes, scaffolds or poles. The claimant can climb stairs up to
one-hour total over the course of an eight-hour workday. The claimant can
occasionally climb ramps. The claimant can frequently stoop and balance.
The claimant can occasionally crouch and kneel. The claimant cannot crawl.
The claimant can frequently work in wetness, humidity, and extreme heat. The

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The regulations define “light work” as follows:

Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we
determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods
of time.
20 C.F.R. § 404.1567(b).
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claimant cannot work in extreme cold. The claimant suffers no pulmonary
limitations. The claimant cannot work at unprotected heights. The claimant
cannot work with operating hazardous machinery. The claimant can
occasionally work while subject to vibration. The claimant can frequently
operate motorized vehicles.
(Doc. 7-3 at R.17-18 [footnote added].) Based on the RFC, the ALJ found that Mr. Mitchell
could not perform his past relevant work as a correctional officer. (Id. at R.22.)
5. Other Work in the National Economy
If the claimant establishes that he is unable to perform his past relevant work, the
Commissioner must show that the claimant – in light of his RFC, age, education, and work
experience – is capable of performing other work that exists in substantial numbers in the
national economy.

Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R.

§404.1560(c)(1). The regulations provide:
If we find that your [RFC] is not enough to enable you to do any of your
past relevant work . . . , we will use the same [RFC] assessment we used to
decide if you could do your past relevant work when we decide if you can
adjust to any other work. We will look at your ability to adjust to other work
by considering your [RFC] and the vocational factors of age, education, and
work experience, as appropriate in your case. . . . Any other work (jobs) that
you can adjust to must exist in significant numbers in the national economy
(either in the region where you live or in several regions in the country).
20 C.F.R. § 404.1560(c)(1). If the claimant is not capable of performing such other work,
the Commissioner must find the claimant is disabled. 20 C.F.R. § 404.1520(f). If, however,
the Commissioner finds that the claimant can perform other work, the claimant has the
burden to prove he is not capable of performing such other work.

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The ALJ found that Mr. Mitchell, who was born in 1962, was a “younger individual”
on the alleged onset date and “closely approaching advanced age” on the date of his decision.
(Doc. 7-3 at R.22-23.) He had a high school education and some job training. (Id. at R.23.)
The ALJ found that “[t]ransferability of job skills [was] not material to [his] determination
of disability because using the Medical-Vocational Rules as a framework support[ed] a
finding that the claimant [was] ‘not disabled,’ whether or not [Mr. Mitchell had] transferable
job skills.” (Id. [citing SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2].)
Because the RFC was based on a limited range of light work, the ALJ consulted a
vocational expert [VE]. (Id.) The VE testified that an individual with Mr. Mitchell’s RFC
and vocational factors could perform jobs that exist in significant numbers in the national
economy, including marker and assembler–electrical, and production line solderer5 (Id. at
R.23, R.58-60.) Based on this testimony, the ALJ found Mr. Mitchell could “mak[e] a
successful adjustment to other work that exists in significant numbers in the national
economy.” (Id. at R.24.)
Therefore, the ALJ found that Mr. Mitchell had “not been under a disability . . . from
December 31, 2011, through the date of [his] decision,” November 21, 2013. (Id.)

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The transcript of the hearing indicates that the vocational expert testified that other
work a person with Mr. Mitchell’s RFC and vocational factors could perform included
“production line sorter, [DOT code] 813.684-022.” (Doc. 7-3 at R.60 [emphasis added].)
However, DOT code 813.684-022 is the code for “Solderer, Production Line.” DICTIONARY
OF OCCUPATIONAL TITLES, 813.684-022 (4th Ed., Rev. 1991)(emphasis added), available at:
http://www.oalj.dol.gov/PUBLIC/ DOT/REFERENCES/DOT08A.HTM.
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B. MR. MITCHELL’S APPEAL
In his Complaint, Mr. Mitchell states:
The [ALJ] erred in finding no evidence of pinched nerves or back injury,
contrary to neurologist report. The [ALJ] found claimant had no limitation or
impairments, relying upon Dr. Waldrop’s records, addressing ankles only, not
the body as a whole; contrary to records finding severe degenerative changes
and reports of additional [physicians’] exhibits included in the record.
(Doc. 1 at 2 [emphasis in original].) Mr. Mitchell did not file a brief in support of his claim
or otherwise direct the court to the specific exhibits he alleges support his claims of error.
In addition to addressing the two issues set forth in the Complaint, the court has reviewed the
entire record to determine whether the correct legal standards were applied and whether the
findings of fact are supported by substantial evidence.
1. “The [ALJ] erred in finding no evidence of pinched nerves or back injury, contrary
to neurologist report.” (Id.)
The ALJ found, “Claimant testified he also sustained an abdomen tear, further back
injuries, and pinched nerves from the February 2013 accident. . . . There is no reference
anywhere in the record to ‘pinched’ nerves, chronic muscle spasms, or other back injuries
except strain.” (Doc. 7-3 at R.14.) The court has reviewed Mr. Mitchell’s medical records
and finds no report, reference, or diagnosis of pinched or impinged nerves.6 Moreover, the
record contains no report from a neurologist at all.

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“A pinched nerve occurs when too much pressure is applied to a nerve by
surrounding tissues, such as bones, cartilage, muscles or tendons.” PINCHED NERVE:
DEFINITION, http://www.mayoclinic.org/diseases-conditions/pinched-nerve/basics/
definition/con-20029601.
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The court finds that the ALJ’s Decision, finding no reference to pinched nerves in Mr.
Mitchell’s medical records, is supported by the court’s review of the entire medical record.
2. The [ALJ] found claimant had no limitation or impairments, relying upon Dr.
Waldrop’s records, addressing ankles only, not the body as a whole; contrary to
records finding severe degenerative changes and reports of additional [physicians’]
exhibits included in the record. (Doc. 1 at 2 [emphasis in original].)
Apparently, Mr. Mitchell’s contention, that the ALJ found he had no limitation or
impairment, refers to the ALJ’s finding in his Decision that “Dr. Waldrop [had] opined in
October 2012, that claimant had no limitations and no impairments at this time.” (Doc. 7-3
at R.21 [internal citation omitted].) In fact on October 23, 2012, Dr. Waldrop wrote, “It is
my professional opinion that patient Michael Mitchell has no limitations or impairments at
this time.” (Doc. 7-8 at R.265.) Despite the ALJ’s reference to Dr. Waldrop’s October 2012
opinion, the ALJ did not find that Mr. Mitchell had no impairments or limitations. Indeed,
the ALJ held:
Though Dr. Waldrop opined in October 2012, that claimant had no limitations
and no impairments at this time (Exhibit 7F, p.2) , claimant testified he cannot
stand (initially, more than 15 minutes before having to get off his feet [and]
later, 10-15 minutes before he has to sit down and get off his feet) or walk for
periods of time (later, maybe 20 yards), cannot run, and has no stability on his
feet. Claimant did not mention problems sitting when I asked, but when the
representative asked about sitting, he stated he has to move around because his
back bothers him. He has difficulty going up and down stairs, due to balance
and reoccurring pressure on the arch of his feet; he has to be careful to put
them down flat. Claimant stated Dr. Waldrop told him there would be a
6-month recuperation period for each surgery and that nothing else could be
done; yet, when I pointed out that Dr. Waldrop’s notes made no mention of
this, he did not know why his complaints and reports were inconsistent with
Dr. Waldrop’s notes. Though note that February 9, 2012 treating notes show
claimant was taken off crutches at that time with no indication of disability,
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and March 20, 2012 notes reflect his report that he had been “very active” only
a month after the surgery, claimant denied this and responded he may have
said he had been “trying to move around” and be more mobile. Claimant was
not aware that Dr. Waldrop’s notes express concerns about his complaints and
that there was a “question mark” by them. Though claimant told Dr. Rickless7
“he was given a cane after that surgery which was on February 3, 2012,” the
claimant admitted at the hearing that Dr. Waldrop had not prescribed a cane
at any time, only crutches, even though he appeared at the March 2012
consultative examination using a cane because he claimed was still having
problems. He did not tell the doctor that he needed a cane or that he had
gotten one. In any case, June 2012 and January 2013 physical examination[s]
findings show absolutely no indication of musculoskeletal difficulty. There
are only very limited findings in June 2013, e.g., “[W]ell-developed and wellnourished in no acute distress,[” “N]o clubbing, cyanosis, or edema,[”
“N]ormal peripheral pulse in the upper and lower extremities,[” “N]normal
ranges of motion of all joints testing in the upper and lower extremities[. N]o
erythema, warmth, swelling or joint deformities noted.[”] Motor and sensory
exam of the upper and lower extremities were normal (Exhibits 10F, p. 2 and
11F).
As for the opinion evidence, I accord significant, but not great weight to the
claimant’s treating surgeon, Dr. Waldrop’s October 2012 opinion that claimant
suffers no limitations or impairments (Exhibit 7F, p.2) as well as Dr.
Rickless’[s] assessment that claimant should be able to sit, stand and walk for
“reasonable periods of time”, lifting and carrying would be limited to light to
medium weights, can handle objects, with no limitations for hearing, speaking
or traveling, and with no necessity for a four pronged cane (Exhibit 5F, p. 5).
These opinions were helpful and the undersigned believes that the assessment
highlighted above is generally consistent with their opinions. Nonetheless,
based on the undersigned’s review of the entire record, including the
claimant’s testimony, there is evidence of greater limitation than they allowed.
(Doc. 7-3 at R.21 [footnote added].)

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Dr. Morton Rickless performed a consultative examination. (See doc. 7-8 at R.252-

55.)
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Contrary to Mr. Mitchell’s assertion, the ALJ specifically found he had the following
impairments: “status post bilateral bunionectomy; status post bilateral arthrodesis with
subtalar joint implant; degenerative joint and disc conditions of C5-6, C6-7; old thoracic
fractures; spondylolisthesis at L5, and mild scoliosis.” (Id. at R.13.) Moreover, he found that
Mr. Mitchell had a number of limitations:
1. Limited to sitting for 3 hours continuously and at least 6 hours in an 8-hour
workday.
2. Limited to standing/walking for 2 hours continuously and at least 6 hours
in an eight-hour workday.
3. Limited to climbing stairs for no more than one-hour in an eight-hour
workday.
4. No walking on uneven terrain, no crawling, and no climbing ladders, ropes,
scaffolds and/or poles.
5. Limited to occasional climbing of ramps and occasional crouching and
stooping.
6. Limited to frequent stooping and balancing.
7. Limited to occasional use of lower extremities for (a) pushing, (b) puffing,
and (c) operation of foot controls.
8. Limited to frequent use of upper extremities to (a) reach in all directions,
(b) push, (c) pull, and (d) handle.
9. Cannot work in extreme cold, at unprotected heights, and/or operate
hazardous machinery.
10. Limited to occasional work subject to vibration.
11. Limited to frequent work in wetness, humidity, and extreme heat.

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12. Limited to frequent operation of motorized vehicles.
(See id. at R.17-18.) Also, as set forth above, the ALJ gave only “significant” – not “great”
– weight to Dr. Waldrop’s opinion specifically because “there is evidence of greater
limitation than [he] allowed.” (Id. at R.21.)
The ALJ’s Decision discussed and considered all of the evidence of record. He did
not rely only on Dr. Waldrop’s opinion; indeed, he specifically stated that he found greater
limitations than those expressed by Dr. Waldrop or Dr. Rickless, the consultative examiner.
The ALJ noted the record contained “evidence of moderate degenerative disc disease at C5-6
and C6-7, spondylolisthesis at L5, and mild scoliosis, . . . [and] severe degenerative changes
of the thoracic spine, with old fractures.” (Id. at R.14 [internal citations omitted]; see also
doc. 7-9 at R.291-93.) Mr. Mitchell’s contention that the ALJ relied on Dr. Waldrop’s
October 2012 opinion to find Mr. Mitchell had no limitations and no impairments is not
supported by the record and/or the explicit language of the ALJ’s Decision.
The court has reviewed the entire administrative law record and it finds the decision
of the Commissioner is supported by substantial evidence. Therefore, the Commissioner’s
decision to deny Mr. Mitchell’s claim for a period of disability and DIB will be affirmed.
IV. CONCLUSION
Based on the reasons set forth above, the decision of the Commissioner, denying
plaintiff’s claim for a period of disability and DIB will be affirmed. An Order affirming the

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decision of the Commissioner will be entered contemporaneously with this Memorandum
Opinion.
DONE this 11th day of July, 2016.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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