Caves v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/13/2018. (JLC)

FILED
2018 Feb-14 AM 09:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
LENA CAVES,
Plaintiff,
v.
NANCY BERRYHILL, Acting
Commissioner Social Security
Administration,
Defendant.

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) Case No.: 4:16-CV-1903-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff Lena Caves (“Caves”) brings this action under 42 U.S.C. § 405(g).

Caves seeks a review of a final adverse decision of the Commissioner of the Social
Security Administration (“Commissioner”), who denied her application for disability
insurance benefits (“DIB”). Caves filed her application on September 3, 2013. (Tr.
20). After that, Caves pursued and exhausted the administrative remedies available
before the Commissioner. Caves filed her Complaint in the Northern District of
Alabama on November 28, 2016. (Doc. 1). Caves filed her brief in support of her
position on July 3, 2017. (Doc. 12). The Commissioner responded on August 1, 2017.
(Doc. 13). Caves replied on August 18, 2017. (Doc. 14). This case is now ripe for

judicial review under section 205(g) of the Social Security Act (the “Act”), 42 U.S.C.
§ 405(g).
The Court carefully reviewed the record in this case and AFFIRMS the ALJ’s
decision.
II.

RELEVANT BACKGROUND
The amended alleged onset date is September 3, 2013. (Tr. 20). Caves suffers

from “obesity[,] non-insulin dependent diabetes mellitus[,] hypertension[,]
osteoarthritis of the hips[,] and vertigo.” (Id. at 22) (emphasis omitted). On September
3, 2013, Caves filed an application for Social Security benefits. (Id. at 20). The Social
Security Administration denied that application. On May 26, 2015, Administrative
Law Judge L.K. Cooper, Jr. held a hearing. (Id. at 32-47). The ALJ issued his
decision on September 24, 2015, which was unfavorable to Caves. (Id. at 20-27). In
that opinion, the ALJ found that Caves did not meet the disability standard at Steps
Three and Four. (Id. at 24, 26). Caves requested the Appeals Council review her
claim. (Id. at 1-3). They refused. (Id.).
III.

STANDARDS
The court’s review of the Commissioner’s decision is narrowly circumscribed.

The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
2

Richardson v. Perales, 402 U.S. 389, 390 (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). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity 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 that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
IV.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a

period of disability, a claimant must be disabled as defined by the Social Security Act
3

and the Regulations promulgated thereunder.1 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
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the

1

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
4

national economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One 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 [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; 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. Id.
V.

FINDING OF THE ADMINISTRATIVE LAW JUDGE
After considering the record, the ALJ made the following findings:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2018.

2.

The claimant has not engaged in substantial gainful activity since
September 3, 2013, the amended alleged onset date (20 CFR
404.1571 et seq.).

3.

The claimant has the following severe impairments: obesity; noninsulin dependent diabetes mellitus; hypertension; osteoarthritis
of the hips; and vertigo (20 CFR 404.1520(c)).

5

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
I (20 CFR 404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record, the
Administrative Law Judge finds that the claimant has the residual
functional capacity to perform light work as defined in 20 CFR
404.1567(b) except: lift and carry 20 pounds occasionally and 10
pounds frequently; sit for 2 hours at a time 6 hours in an 8 hour
workday with regular breaks; stand or walk 2 hours at a time 6
hours in an 8 hour workday with regular breaks; would be on task
at least 90% of the work time during the workday, and would be
able to constantly understand, remember and carry out simple
instructions and use judgment equal to the task; maintain
appropriate concentration, persistence and pace required by the
task; constantly respond appropriately to usual work situations
and customary work pressures; constantly respond appropriately
to supervision and co-workers; constantly deal appropriately with
changes in a routine work setting; be present with the public with
constant interaction; handle and finger frequently bilaterally;
reach frequently bilaterally; feel constantly bilaterally; bend
occasionally; kneel occasionally; balance occasionally; crouch
occasionally; stoop occasionally; never crawl; climb occasionally;
climb stairs and ramps occasionally but never climb other types
of things; no environmental limitations; no significant limitations
talking, hearing, tasting, smelling, or vision; and would miss on
average no more than 8 hours of work per month.

6.

The claimant is capable of performing past relevant work as an
Escort Driver. This work does not require the performance of
work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565).

7.

The claimant has not been under a disability, as defined in the
Social Security Act, from September 3, 2013, through the date of
this decision (20 CFR 404.1520(f)).
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(Tr. 22-27) (emphasis omitted).
VI.

ANALYSIS
Caves has eight2 different assignments of error on appeal. None of them merit

a reversal, but all of them received individual attention from the Court. The Court
found the Commissioner’s groupings of these issues helpful, and so this opinion
addresses them in a similar fashion.
A.

There Is No Error Stemming From the Appeals Council’s
Consideration of the New Evidence.

This section addresses Caves’s seventh argument. Caves argues that the
Appeals Council did not properly evaluate the new evidence submitted to them. (See
Doc. 12 at 36-38).3 Caves characterizes the Appeals Council’s review as being

2

Caves dropped her first argument in her reply. (See Doc. 14 at 1) (“Counsel withdraws
the first issue.”).
3

The Appeals Council denial states, in part:

What We Considered
In looking at your case, we considered the reasons you disagree with the
decision and the additional evidence listed on the enclosed Order of
Appeals Council.
We considered whether the Administrative Law Judge’s action, findings,
or conclusion is contrary to the weight of the evidence currently of record.
We found that this information does not provide a basis for changing the
Administrative Law Judge’s decision.
(Tr. 2).
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“purely conclusory” and “‘perfunctory adherence’ to the ALJ[’s] decision.” (See id.).
In support, Caves relies on Epps v. Harris and Ingram v. Commissioner. (See id.)
(citing Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980); Ingram v. Commissioner, 496
F.3d 1253 (11th Cir. 2007)). The Commissioner notes the general rule in Ingram but
argues that this case is “indistinguishable” from Parks and Mitchell. (See Doc. 13 at
10) (citing Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin., 783 F.3d 847 (11th Cir.
2015); Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780 (11th Cir. 2014)). The
Court agrees that this case is analogous to the situation in Parks and Mitchell.4
In Parks, the claimant introduced new evidence to the Appeals Council after
the ALJ denied benefits. See Parks, 783 F.3d at 849-850. Then, “[t]he Appeals
Council added Parks's new evidence to the record and considered it, but the Appeals
Council ‘found no reason under [its] rules to review the ... decision.’” See id. at 850.
Writing for the panel, Judge Pryor noted that this case was “indistinguishable from
that of the claimant in Mitchell.” See id. at 852-53. Importantly, “there is no
requirement that ‘the Appeals Council ... provide a detailed discussion of a claimant's
new evidence when denying a request for review.’” See id. at 853 (quoting Mitchell,
771 F.3d at 783).

4

Caves completely failed to respond to Parks and Mitchell in her reply. (See Doc. 14 at

12).
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Additionally, the Parks court noted that Epps is a different situation because
in Epps “the Appeals Council affirmed the decision of the administrative law judge.”
See id. (citing Mitchell, 771 F.3d at 783) (emphasis as it appears). Here, the Appeals
Council denied review, like in Parks. (Tr. 1-3); see Parks, 783 F.3d at 850. The
Ingram decision does not contradict this position, and it was even authored by Judge
Pryor as well. See Ingram, 496 F.3d at 1257. Guided by Parks and Mitchell, this
Court is satisfied that there is no error on this point.
Further, even if there was an error stemming from the Appeals Council’s
consideration of the evidence (and there clearly was not), Caves has failed to show
the harm that stemmed from it. (C.f. Doc. 13 at 7-8) (noting the limited treatment in
the medical records); (c.f. also id. at 10) (noting that “[Caves] failed to show, or even
argue, that the evidence submitted to the Appeals Council, when considered with the
record as a whole, rendered the ALJ’s decision erroneous.”). In other words, had the
Appeals Councils engaged in a detailed written opinion regarding the record, its not
clear that it would have changed their decision. For these reasons, there is no error
under the seventh argument.
B.

There Is No Error Stemming From the Step Four Determination.

This section addresses Caves’s second, third, fourth, and eighth arguments.
Caves’s second argument is that the ALJ’s decision was not based on substantial
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evidence. (Doc. 12 at 13). She argues this is even more clear when the evidence
submitted to the Appeals Council is considered. (Id.). Specifically, she objects to the
ALJ’s hypothetical question asked to the vocational expert. (Id. at 13-14). She argues
that the hypothetical relied on by the ALJ did not reflect her condition. (Id. at 14).
She further argues that when the hypothetical did reflect her condition, then the
vocational expert said she could not perform any job. (Id.) (citing Tr. 44-45). Finally,
she points to the records from Cooper Green Mercy Hospital as proving that the
ALJ’s decision is not supported by substantial evidence. (Id. at 15).
However, the Commissioner points out that Caves did not cite to the record to
say why the first hypothetical was unsupported and the second hypothetical was. (See
Doc. 13 at 12). The Court agrees, and Caves fails to adequately rectify this omission
in her reply. (See Doc. 14 at 4-5). Upon reviewing the record, the Court cannot say
that the hypothetical is unsupported by the record.
Moreover, much of Caves’s reply is a recitation of the medical records from
Cooper Green Mercy Hospital. (See Doc. 14 at 2-5). However, the ALJ already
considered the evidence from Exhibit 10F. (Tr. 20). The Appeals Council considered
the evidence from Exhibit 11F. (Tr. 2-4). This Court is not tasked with re-weighing
evidence, and these records are not enough to merit a reversal of the ALJ’s findings.
See Bloodsworth, 703 F.2d at 1239 (“We may not decide the facts anew, reweigh the
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evidence, or substitute our judgment for that of the Secretary”). For the
aforementioned reasons, there was no error on this point.
Caves’s third argument is that the ALJ erred in finding that Caves could
perform her past relevant work. (See Doc. 12 at 15). Caves believes that “[t]he ALJ
did not consider all of the duties of [her] past work and evaluate [her] ability to
perform those duties in spite of the impairments.” (See id.). She also says that the past
relevant work determination “is not supported by substantial evidence.” (See id.). In
support, Caves cites to numerous cases from the Eleventh Circuit and district courts
in the Eleventh Circuit. (See id. at 15-19). However, she fails to apply those cases to
the present situation. In other words, she purports to articulate the rule while
generally neglecting to apply it in this case. The Commissioner notes this inadequacy
as well. (See Doc. 13 at 13).
The Court is unpersuaded that this case is sufficiently analogous to the cited
authorities in Caves’s brief. In this case, the record contains ample evidence
surrounding Caves’s work experience. (See Tr. 28-31). Specifically, the Work History
Report details Caves’s work as an escort driver. (Id. at 126-28). Caves herself filled
out the form. (Id. at 131). Additionally, at the hearing, the ALJ utilized a vocational
expert who discussed the “escort driver” job. (Id. at 41-42). He noted this in his
opinion as well. (Id. at 26). Ultimately, the ALJ determined that “[Caves] is able to
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perform past relevant work as actually and generally performed in the economy.” (Id.
at 27). For this reason, there was no error regarding the record surrounding the escort
driver position. The ALJ’s determination is supported by substantial evidence, and
there is no error under the third argument.
Caves’s fourth argument is that the RFC determination violates SSR 96-8p5
and is unsupported by substantial evidence. (See Doc. 12 at 19). The Court disagrees.
Caves cites to some of her medical records to argue that the RFC is inconsistent
with them. (See id. at 20). However, this Court does not reweigh the evidence, and
the Commissioner detailed opinion is supported, at the very least, by substantial
evidence. (Tr. 24-26) (noting the evidence supporting his determination). Caves cites
to the Eleventh Circuit in Walker v. Bowen to argue that this current case is
analogous. (See Doc. 12 at 22-23) (citing Walker v. Bowen, 826 F.2d 996 (11th Cir.

5

SSR 96-p states in relevant part:

The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In
assessing RFC, the adjudicator must discuss the individual's ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
SSR 96-8p (internal footnote omitted).
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1987)). However, Social Security cases are necessarily very fact-specific
undertakings. Here, unlike in Walker, the ALJ’s adequately articulated findings are
supported by substantial evidence. (See Tr. 24-26).
Caves argues that the RFC was conclusory, in violation of SSR 96-8p. (See
Doc. 12 at 20-23). The Court disagrees. In fact, the RFC finding contains numerous
limitations noted by the ALJ. (Tr. 24). Its clear from his detailed RFC and opinion
that the ALJ considered Caves’s limitations. (Id. at 24-26); (See also Doc. 13 at 14).
The ALJ considered the record and provided a discussion about his finding in the
paragraphs immediately following that finding. (See Tr. at 24-26). To say that the
ALJ “simply states that the Claimant is not credible and assigns a conclusory RFC”
as Caves did in her reply, is to entirely ignore what the ALJ wrote in his opinion. The
Court declines to do so here.
Caves argues that the ALJ erred because “there was no physical capacities
evaluation by a treating or examining physician in [her] case.” (Doc. 12 at 21)
(emphasis omitted). In support, Caves cites to two district court cases. (Id.) (citing
Thomason v. Barnhart, 344 F. Supp. 2d 1236 (N.D. Ala. 2004); Coleman v. Barnhart,
264 F. Supp.2d 1007 (S.D. Ala. 2003)). The Court finds neither case persuasive.
Rather, this Court agrees with the analysis set forth in Langley v. Astrue. (See Doc.
13 at 14) (citing Langley v. Astrue, 777 F. Supp. 2d 1250 (N.D. Ala. 2011)). In
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Langley, the court stated:
In an unpublished decision, the Eleventh Circuit has implicitly
refused to adopt the First Circuit Rule. In Green v. Social Security
Administration, the court found the ALJ had properly refused to credit
a Physical Capacities Evaluation (“PCE”) from claimant's treating
physician. 223 Fed.Appx. 915, 922–23 (11th Cir.2007). The court
rejected claimant's argument that without the PCE, there was nothing in
the record upon which the ALJ could base his RFC finding. Id. at 923.
The court held that other evidence from the plaintiff's doctors (which did
not contain a PCE or RFC assessment) was sufficient to support the
ALJ's finding that the claimant could perform light work. Id. at 923–24.
Therefore, the court concludes that the law of this Circuit does not
required an RFC from a physician. It is also unlikely, based upon
unpublished decisions, that the Eleventh Circuit would adopt the First
Circuit Rule if the issue were to be presented in a future appeal.
Langley, 777 F. Supp. 2d at 1258; see also Hart v. Colvin, No. 5:12cv156/EMT, 2013
WL 4736841, *14 (N.D. Fla. Aug. 30, 2013) (“This court further notes that courts in
numerous other cases have also disagreed with the conclusions in Coleman and
Thomason, recognizing that an ALJ's RFC determination may be upheld even when
there is no RFC assessment by a treating or examining physician.”). The ALJ
determines the RFC, not a doctor. See Langley, 777 F. Supp. 2d at 1261 (“Under the
Commissioner’s regulations, an RFC is not considered to be a medical assessment.”).
Caves’s reply on her second argument is an almost verbatim restatement of her
opening brief. (See Doc. 14 at 7-8). The Court found it unpersuasive the second time
around as well. There is no error under the fourth argument.
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Caves’s eighth argument is that “[t]he ALJ should have considered sedentary
work and the grids” because “[Caves] was 54 at the time of the hearing with an 8[th]
grade education.” (See Doc. 12 at 38). In support, Caves relies primarily on several
district court decisions. (See id. at 38-40).Caves argued that the step four
determination was not supported by substantial evidence and so the Grids should
have been consulted. (See id.). The Commissioner’s response is short and succinct.
(See Doc. 13 at 15). Basically, the Commissioner argues the ALJ determined Caves
could perform her past relevant work at step four, he did not need to use the Grids.
(See id.) (citing 20 C.F.R. § 404.1520). The Court agrees.
For the reasons stated throughout this opinion, Caves has failed to show that
the ALJ’s findings were not supported by substantial evidence. Further, the Grids are
something that are considered at step five, not step four.6 See Phillips v. Barnhart,
357 F.3d 1232, 1238-40 (11th Cir. 2004) (describing the five step process and noting
how the Grids are one of the two methods an ALJ can use at step five); 20 C.F.R. Pt.
404, Subpt. P, App. 2. Caves’s brief, and cited sources, fails to persuade the Court
otherwise. For these reasons, Caves’s eighth argument fails.
C.

The ALJ Did Not Err in Evaluating Caves’s Credibility.

This section addresses Caves’s fifth and sixth arguments. In her fifth argument,
6

Caves could not prove her disability at Step Four. (Tr. 26-27).
15

Caves argues that “the ALJ failed to assess the intensity and persistence of claimant’s
symptoms pursuant to Social Security Ruling 16-3p which became effective 3/28/16.
The rule modification is retroactive.” (Doc. 12 at 23) (emphasis omitted). In support,
Caves cites to numerous cases to support the proposition that the rule is retroactive.
(See id. at 29-32). The Commissioner responds by noting that an unreported Eleventh
Circuit panel held that SSR 16-3p was not retroactive. (See Doc. 13 at 15-16) (citing
Green v. Soc. Sec. Admin., Comm’r., 695 F. App’x 516 (11th Cir. 2017).
Caves replied by arguing that the Eleventh Circuit got it wrong and this case
“is not precedent.” (See Doc. 14 at 8) (arguing that “[t]he Eleventh Circuit follows the
Bradley Rule of Retroactive Application”). Caves put the Court on notice that
Hargress v. Berryhill was on appeal before the Eleventh Circuit and that it dealt with
the retroactive application of 16-3p. (See Doc. 14 at 10). The Eleventh Circuit
decided that case on November 6, 2017, after Caves filed her reply. See Hargress v.
Soc. Sec. Admin., Comm’r, 874 F.3d 1284, 1290 (11th Cir. 2017). It is reported,
binding appellate court precedent. It states that “SSR 16-3p applies only prospectively
and does not provide a basis for remand.” See id. at 1290. For that reason, Caves’s
fifth argument fails.
Caves’s sixth argument is that “[t]he ALJ failed to state adequate reasons for
finding [her] not credible.” (Doc. 12 at 2). In support, Caves cites to general case law
16

in the Eleventh Circuit. (See id. at 32-34). In support, Caves has a lengthy citation to
her hearing testimony and the testimony of the vocational expert. (Id. at 34-35). The
Commissioner responds by noting where “the ALJ properly described and applied the
pain standard.” (Doc. 13 at 16-19). The Commissioner also notes that Caves did not
identify evidence supporting her position. (Id. at 17).
The Court finds that the ALJ adequately laid out the reasons for finding Caves
not credible. (Tr. 25-26). He considered the longitudinal medical record, discussed
her mental condition, discussed her obesity, and considered her testimony. (Id.). He
spent time detailing why her complaints were not all buttressed by the medical record.
(Id.). The ALJ came to a determination different from the one Caves would have
liked, but his reasons are still adequate. Further, Caves’s opening brief mainly relies
on her own testimony and an excerpt from the vocational expert’s testimony. (See
Doc. 12 at 34-36). Caves generally restates her opening brief in her reply. (See Doc.
14 at 10-12). Much of the reply consists of standard citations to case law, without
making a discernable attempt to apply it here. (See id.). This Court is aware of the
relevant case law surrounding Social Security cases. What the Court is really
interested in is how an application of that law mandates that this Court overturn the
ALJ’s decision. In other words, that law must be applied to the facts of this case, and
Caves’s reply falls short on that account. (See id.).
17

The ALJ did not err in finding Caves not credible. His opinion is supported by
substantial evidence. For that reason, there is no error under Caves’s sixth argument.
VII. CONCLUSION
The Court has undertaken a detailed review of the record and all of Caves’s
numerous arguments. None of them merit a reversal. In conclusion, there simply is
no basis on which to disturb the ALJ’s decision. Accordingly, the Commissioner’s
decision is AFFIRMED.
DONE and ORDERED this the 13th day of February, 2018.

VIRGINIA EMERSON HOPKINS
United States District Judge

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