Silvestro v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 9/1/2017. (PSM)

FILED
2017 Sep-01 PM 02:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DEBORAH SILVESTRO,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Commissioner of Social Security,
Defendant.

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4:16-cv-1150-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Deborah Silvestro, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
her application for a period of disability and Disability Insurance Benefits (“DIB”).
Ms. Silvestro timely pursued and exhausted her administrative remedies, and the
decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g),
1383(c)(3).
Ms. Silvestro was fifty-four years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and she has an eleventh grade education. (Tr. at 3537.) Her past work experiences include employment as a sock folder, restaurant
manager, and fast-food cook. (Id.) Ms. Silvestro claims that she became disabled on
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May 31, 2013, due to osteoarthritis, carpal tunnel syndrome, hypothyroidism,
thoracic outlet syndrome, irritable bowel syndrome (“IBS”), obesity, and diabetes.
(Tr. at 15.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”).

See id. §§

404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The

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decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work.

See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

If the plaintiff’s

impairment or combination of impairments does not prevent him from performing
his past relevant work, the evaluator will make a finding of not disabled. See id.

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The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find
him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Ms. Silvestro
meets the nondisability requirements for a period of disability and DIB was insured
through the date of his decision. (Tr. at 15.) He further determined that Ms.
Silvestro has not engaged in SGA since the alleged onset of her disability. (Id.)
According to the ALJ, Plaintiff’s osteoarthritis, carpal tunnel syndrome,
hypothyroidism, history of thoracic outlet syndrome, IBS, obesity, and diabetes are
considered “severe” based on the requirements set forth in the regulations. (Id.)
However, he found that these impairments neither meet nor medically equal the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. at 18.) The ALJ did not find Ms. Silvestro’s allegations to be
totally credible, and he determined that she has the following RFC: light work as
defined by 20 C.F.R. § 404.1567(b) except that she is limited to unskilled work with

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no climbing of ropes, ladders, or scaffolds; no work at unprotected heights or with
hazardous machinery; no more than concentrated exposure to extreme heat or
cold; reasonable access to restroom facilities at the usual and customary breaks
(reasonably defined as on the premises); and no more than frequent contact with
co-workers, supervisors, and the general public. (Tr. at 19.)
According to the ALJ, Ms. Silvestro is unable to perform any of her past
relevant work, she is “closely approaching advanced age,” and she has a “high
school education,” as those terms are defined by the regulations. (Tr. at 25.)
Because Plaintiff is limited in her ability to perform the full range of light work, the
ALJ enlisted a vocational expert (“VE”) and used the Medical-Vocational Rules as
a guideline for finding that there are a significant number of jobs in the national
economy that she is capable of performing, such as “Cashier 2,” parking lot
attendant, and toll collector. (Id.) The ALJ concluded his findings by stating that
Plaintiff “has not been under a ‘disability,’ as defined in the Social Security Act,
from May 31, 2013, through the date of this decision.” (Tr. at 26.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the

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Commissioner, and (2) whether the correct legal standards were applied. See Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)).

“The substantial evidence standard permits administrative decision

makers to act with considerable latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the
proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

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However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Hecskler, 732 F.2d 881,
883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

Discussion
Ms. Silvestro alleges that the ALJ’s decision should be reversed and

remanded for three reasons. First, Plaintiff believes that the ALJ improperly
evaluated her treating physician’s opinion. Second, Plaintiff contends that the ALJ
did not afford proper consideration to her subjective complaints of pain. Third,
Plaintiff contends that the ALJ incorrectly concluded that she could perform other
jobs existing in significant numbers in the national economy.
A.

Treating Physician’s Opinion

Plaintiff contends that the ALJ improperly evaluated her treating physician’s
opinion. A treating physician’s opinion is entitled to “substantial or considerable
weight unless ‘good cause’ is shown to the contrary.” Crawford, 363 F.3d at 1159
(quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal
quotations omitted). “Good cause” exists for an ALJ to not give a treating

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physician’s opinion substantial weight 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, 357 F.3d at 1241 (citing Lewis, 125 F.3d at 1440); see also
Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good
cause” existed where the opinion was contradicted by other notations in the
physician’s own record). The Court must also be aware of the fact that opinions
such as whether a plaintiff is disabled, the plaintiff’s RFC, and the application of
vocational factors “are not medical opinions, . . . but are, instead, opinions on
issues reserved to the Commissioner because they are administrative findings that
are dispositive of a case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). The Court is interested in the
physicians’ evaluations of the plaintiff’s “condition and the medical consequences
thereof, not their opinions of the legal consequences of his [or her] condition.”
Lewis, 125 F.3d at 1440. Such statements by a physician are relevant to the ALJ’s
findings, but they are not determinative, as it is the ALJ who bears the
responsibility for assessing the plaintiff’s residual functional capacity. See, e.g., 20
C.F.R. § 404.1546(c).

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Dr. Christopher Jones treated Plaintiff since August 2010 for treatment of
chronic upper extremity pain following a work injury in 2001. (Tr. at 310.) Dr.
Jones wrote a letter in July 2013, on behalf of Plaintiff, noting that her condition is
multifactorial and involves arthritic changes at her shoulders, elbows, wrists,
hands, and fingers. (Id.) He also made note of her carpal tunnel syndrome and the
thoracic outlet syndrome, for which she had previously undergone surgery. (Id.) He
concluded that her pain had “worsened to the point that she has not been able to
maintain employment as a cook and restaurant owner/manager.” (Id.) Dr. Jones
also noted that Plaintiff was “considering applying for disability as she is unable to
use her hands for manual labor.” (Tr. at 374.) However, the physician also noted
that Plaintiff’s nerve conduction velocity (“NCV”) and electromyography
(“EMG”) tests were “negative other than mild carpal tunnel on the contralateral
side to her work injury, [and] there were no findings on the right.” (Id.)
Additionally, although Plaintiff has been diagnosed with diabetes, Dr. Jones noted
that “there was no evidence of a neuropathy on the nerve tests.” (Id.)
The ALJ gave some weight to Dr. Jones’s conclusion in the letter that Plaintiff
could not perform her past work, but he also noted that he did not find any
indication by Dr. Jones that she could not perform other work. (Tr. at 24.)

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Plaintiff does not explain why she believes the ALJ should have given more
weight to the opinion of Dr. Jones. The ALJ took into account Dr. Jones’s
statements that he “suspected” that Plaintiff’s arthritis was “likely” affecting her
upper extremity joints (tr. at 310) and accounted for these arthritic limitations in
the plaintiff’s RFC (tr. at 22-23.) While Plaintiff suggests that Dr. Jones’s July 2013
assessment warranted limitations greater than those found by the ALJ, the Court
does not find that suggestion supported by the record. An ALJ may discount any
doctor’s opinion, including a treating doctor’s opinion, when the doctor fails to
provide objective medical evidence to support his or her opinion or if the doctor’s
opinion is inconsistent with the record as a whole. See 20 C.F.R. § 404.1527(c);
Crawford, 363 F.3d at 1159-60. As the ALJ observed, Dr. Jones consistently found
Plaintiff had a normal gait, full range of wrist motion, only slightly diminished grip
strength in the right hand, and her general muscle tone and strength were within
normal limits with no spasticity or atrophy. (Tr. at 18, 21, 353, 357, 361, 365, 373,
377, 381, 388, 391, 394).
In sum, Dr. Jones never indicated one way or the other whether Plaintiff
could perform other work, and even if he had affirmatively stated that she could not,
substantial evidence would have supported the ALJ’s decision to give that

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conclusion little weight because it would not have been supported by Dr. Jones’s
own treatment notes.
B.

Credibility Determination

Plaintiff asserts that “the ALJ did not provide an adequate basis for finding
less than credible the symptoms she alleged relating to pain, numbness, grip
strength, and the frequency of her bathroom visits.”
A plaintiff’s subjective testimony of pain and other symptoms may establish
the presence of a disabling impairment if it is supported by medical evidence. See
Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). To establish disability based
upon pain and other subjective symptoms, “[t]he 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.” Dyer, 395 F.3d at 1210
(citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)); see also Landry v.
Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986). If the objective medical evidence does
not confirm the severity of the plaintiff’s alleged symptoms, but the plaintiff
establishes that she has an impairment that could reasonably be expected to
produce her alleged symptoms, the ALJ must evaluate the intensity and persistence

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of the plaintiff’s alleged symptoms and their effect on the plaintiff’s ability to work.
See 20 C.F.R. § 404.1529(c), (d); Social Security Ruling (“SSR”) 96-7p. 1 The ALJ
is permitted to discredit the plaintiff’s subjective testimony of pain and other
symptoms if he articulates explicit and adequate reasons for doing so. Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also SSR 96-7p (“[T]he
adjudicator must carefully consider the individual’s statements about symptoms
with the rest of the relevant evidence in the case record in reaching a conclusion
about the credibility of the individual’s statements.”). Although the Eleventh
Circuit does not require explicit findings as to credibility, “‘the implication must
be obvious to the reviewing court.’” Dyer, 395 F.3d at 1210 (quoting Foote, 67 F.3d
at 1562). “[P]articular phrases or formulations” do not have to be cited in an ALJ’s
credibility determination, but it cannot be a “broad rejection which is “not enough
to enable [the district court or this Court] to conclude that [the ALJ] considered
her medical condition as a whole.” (Id.) (internal quotations omitted).
In this case, the ALJ determined that Plaintiff’s osteoarthritis, carpal tunnel
syndrome, and history of thoracic outlet syndrome could reasonably be expected to

Effective March 28, 2016, SSR 16-3p superseded SSR 96-7p. See SSR 16-3p, 2016 WL
1237954, at *1 (amending the effective date of SSR 16-3p to March 28, 2016); 2016 WL 1119029,
at *1 (implementing SSR 16-3p). However, the ALJ decided the instant case before the March 28,
2016, implementation date for SSR 16-3p; so SSR 16-3p does not apply to the ALJ’s analysis
here.
1

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result in some pain and limitations. (Tr. at 22.) The ALJ also acknowledged
Plaintiff’s allegations of limitations related to sleep issues, fatigue, gastrointestinal
symptoms, pain, carpal tunnel and arthritis symptoms, tingling fingers, numbness,
lifting problems, anxiety, and inattention. (Tr. at 17, 19-24.) Ultimately, however,
the ALJ stated that “due to contradictions between Plaintiff’s reports and the
objective examination findings of her treatment providers, diagnostic testing, and
[her] failure to comply with her prescribed pain-management treatment regimen,
the undersigned concludes that the severity of pain and numbness alleged is not
fully credible.” (Tr. at 22-23.)
Substantial evidence supports the ALJ’s determination here. In reaching his
conclusion, the ALJ considered the various medical opinions in the record. For
example, Plaintiff was seen by three different certified registered nurse
practitioners (“CRNPs”) in 2013 and 2014—John Moore, Michelle Stuart, and
Brooke Moody—and each noted that Plaintiff had “no anxiety, no depression, and
no sleep disturbances.” (Tr. at 19, 479, 490, 515.) CRNP Moore noted in
September 2013 that Plaintiff’s IBS had been acting up, but it usually ran its course
within 3 to 4 days. (Tr. at 338.) Then, when Plaintiff saw CRNPs Moody and Stuart
in March and May 2014, neither noted a loss of appetite, nausea, vomiting,
diarrhea, abdominal pain, or frequent bathroom visits. (Tr. at 318, 323.) Similarly,

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when Plaintiff saw Dr. Paul Megehee in September 2014, she complained about
sore throat, sinus drainage, abdominal pain, nausea, and vomiting; but by the visit
the following month, Plaintiff reported no gastrointestinal problems. (Tr. at 16-17,
476, 479.) Additionally, the ALJ analyzed records from Plaintiff’s visits to North
East Alabama Health Services in April, June, and September 2013, and March,
May, and July 2014. The examiners noted no musculoskeletal pain on these visits.
(Tr. at 21, 318-19, 323-25, 344, 346-51, 350, 479-80, 490.) The only exception was
from the June 2013 visit, in which the examiner noted Plaintiff’s report of having
level “6” pain in her lower back that was the result of lifting boxes. (Tr. at 344-45.)
The ALJ also gave great weight to the opinion of Robert Estock, M.D., a state
agency psychiatric consultant, who determined that Plaintiff’s anxiety disorder was
not severe. (Tr. at 24, 82-83.) The ALJ also gave great weight to CRNP Michelle
Stuart’s findings of no musculoskeletal impairment, a normal gait, and rare reports
of pain. (Tr. at 24, 318-319, 479-80, 485, 490.) Plaintiff has not specifically
challenged the weight given by the ALJ to any of these medical sources, and they
each support the ALJ’s credibility determination. See 20 C.F.R. § 404.1529(c)(2)
(“Objective medical evidence . . . is a useful indicator to assist us in making
reasonable conclusions about the intensity and persistence of your symptoms and
the effect of those symptoms . . . may have on your ability to work”). Furthermore,

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the ALJ noted that while Plaintiff contended that her pain level was 8 out of 10
during her April 9, 2013, visit with her treating physician Dr. Jones, he noted that
Plaintiff appeared comfortable and in no acute distress, her generalized muscle tone
and strength was within normal limits for her age, no muscle spasticity or atrophy
was appreciated, and her gait, coordination, and position sense were all within
normal limits. (Tr. at 21-22, 353, 357, 361, 365, 373, 377, 381, 388, 391, 394).
Finally, Plaintiff frequently told physicians that she was not in pain and she failed to
follow directives with regard to treatment. (Tr. at 352, 354, 356, 358, 364).
Taking into account all of the objective medical evidence from Dr. Jones and
other medical sources who saw Plaintiff about her gastrointestinal and other issues,
the ALJ determined that Plaintiff’s statements about the severity and consistency
of her problems was not entirely credible. In any event, the ALJ included a
limitation in the RFC to jobs that provided reasonable access to bathroom facilities
at usual and customary breaks in order to accommodate Plaintiff’s gastrointestinal
symptoms. (Tr. at 23.) The Court finds no error in the ALJ’s credibility
determination.
C.

Jobs Existing in Significant Numbers in the National Economy

Plaintiff argues specifically that it would be burdensome on her to travel the
50-mile distance from her home to a parking lot attendant or toll collector job, two

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of the other jobs existing in the national economy that the ALJ concluded that
Plaintiff could perform given her limitations. This argument fails because in
determining whether a claimant is disabled, the issue is not whether there is work
near a claimant’s home, but whether the claimant is capable of performing a job
that exists in significant numbers in the national economy. See 20 C.F.R. §
404.1566(c) (“We will determine that you are not disabled if your [RFC] and
vocational abilities make it possible for you to do work which exists in the national
economy, but you remain unemployed because of . . . [y]our inability to get work
[or] . . . [l]ack of work in your local area.”).
Plaintiff also argues that the parking lot attendant, toll collector, and cashier
jobs would require her to reach up to handle change and that significant difficulties
with fingering would undermine her ability to do the cashier job. However, these
limitations were not listed in the RFC, and as discussed in the preceding sections,
substantial evidence supports the ALJ’s determination that Plaintiff could do light
work with additional limitations. For example, the ALJ observed that Dr. Jones
consistently found Plaintiff had normal gait, full range of wrist motion, and only
slightly diminished grip strength on the right. (Tr. at 18, 20-21, 353, 357, 361, 365,
373, 377, 381, 388, 391, 394). Additionally, Dr. Jones often noted Plaintiff appeared
in no acute distress and consistently noted Plaintiff’s general muscle tone and

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strength were within normal limits with no spasticity or atrophy. (Tr. at 21-22, 353,
357, 361, 365, 373, 377, 381, 388, 391, 394). As a result, Plaintiff failed to meet her
burden of proving she could not perform the jobs the VE and ALJ identified. See
Doughty, 245 F.3d at 1278 n.2.
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms.

Silvestro’s arguments, the Court finds the Commissioner’s decision is supported
by substantial evidence and in accord with the applicable law. A separate order will
be entered.
DONE and ORDERED on September 1, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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